WEBVTT - The Secretive Shadow Docket Raises Questions 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio 0:00:12.520 --> 0:00:24.960 Who Knows what lecks in the hearts of Men? From 0:00:24.960 --> 0:00:28.240 the Old Time radio show to later TV and movies, 0:00:28.640 --> 0:00:33.320 the shadow always sounded mysterious and secretive. Fast forward to 0:00:33.360 --> 0:00:37.440 the shadow docket, which also sounds secretive and opaque, and 0:00:37.520 --> 0:00:41.479 in a sense it is emergency orders of the Supreme Court, 0:00:41.840 --> 0:00:47.040 short and unsigned, issued outside normal procedures, without oral arguments 0:00:47.120 --> 0:00:50.879 or a full briefing, often late at night and without explanation. 0:00:51.200 --> 0:00:54.440 While the shadow docket certainly isn't new, it has grown 0:00:54.480 --> 0:00:58.240 in size and significance. Any Coney Barrett is probably the 0:00:58.280 --> 0:01:00.520 first justice to be asked to out it in your 0:01:00.560 --> 0:01:04.560 confirmation hearings. You know, the shadow docket has become a 0:01:04.600 --> 0:01:07.000 hot topic in the last couple of years. But you know, 0:01:07.080 --> 0:01:10.679 even when I was clicking on the court, it was 0:01:10.760 --> 0:01:14.160 not typical for the Court to issue opinions explaining why 0:01:14.200 --> 0:01:17.039 Sart was denied. Joining me is Steve in Plantic, a 0:01:17.080 --> 0:01:19.960 professor at the University of Checksis Law School who has 0:01:19.959 --> 0:01:23.560 written extensively about the shadow docket. Steve explained what the 0:01:23.560 --> 0:01:27.840 shadow docket is. It's a evocative term for what is 0:01:27.920 --> 0:01:31.320 usually a pretty mundane part of the Supreme Court caseload. 0:01:31.560 --> 0:01:34.959 It was coined by Chicago law professor Will bode In 0:01:36.200 --> 0:01:38.720 basically just to describe all of the orders that the 0:01:38.760 --> 0:01:42.640 Court hands down, So the non merit decision, the technical 0:01:42.680 --> 0:01:46.120 stuff that court does when controlling its docket. And I 0:01:46.160 --> 0:01:49.560 think the reason why it has become more pejorative and 0:01:49.680 --> 0:01:52.800 less evocative is because the Court in the last four 0:01:52.840 --> 0:01:56.120 or five years has been doing a lot more substantive 0:01:56.160 --> 0:01:58.240 stuff on the shadow docket, where what used to be 0:01:58.320 --> 0:02:02.440 primarily Anna Dine usual orders that nobody cared about are 0:02:02.440 --> 0:02:04.720 all of a sudden, a much larger chunk of orders 0:02:04.880 --> 0:02:07.680 having stuff into effects not just on the parties before 0:02:07.720 --> 0:02:09.840 the Supreme corport on like lots and lots of people 0:02:09.880 --> 0:02:13.200 as well. Of course, on Thursday, the Supreme Court refused 0:02:13.240 --> 0:02:16.320 to block the Texas abortion law in its shadow docket. 0:02:16.520 --> 0:02:19.560 But let's focus on the two decisions last week that 0:02:19.840 --> 0:02:24.200 ordered the Biden administration to change course, each with huge 0:02:24.280 --> 0:02:28.520 dramifications involving the migrant protection protocols known as Remain in 0:02:28.560 --> 0:02:34.839 Mexico and the c DCS eviction moratorium. What are the implications, Well, 0:02:34.880 --> 0:02:36.680 I mean, I think we saw last week with the 0:02:36.760 --> 0:02:40.320 mt P case and the eviction moratorium, just how much 0:02:40.680 --> 0:02:44.239 these rulings June can affect people. So MPP, now we're 0:02:44.280 --> 0:02:47.840 having the federal government being required to restitute immigration policies, 0:02:47.840 --> 0:02:51.200 can require potentially hundreds of thousands of style and applicants 0:02:51.240 --> 0:02:55.000 to pursue their applications from Mexico. Obviously, the eviction moratorium 0:02:55.040 --> 0:02:58.480 directly affects millions of Americans. And so I think there's 0:02:58.480 --> 0:03:01.240 sort of two pieces to the quick seek He's one 0:03:01.560 --> 0:03:03.480 is that if the court is going to be handing 0:03:03.520 --> 0:03:06.320 down decisions with such broad effects, it really needs to 0:03:06.320 --> 0:03:09.280 do a better job explaining itself. And the MP Pece 0:03:09.320 --> 0:03:12.160 cases of an example, we've got basically one sense of 0:03:12.360 --> 0:03:14.919 analysis as to why the court ordered what it did. 0:03:15.320 --> 0:03:17.080 But Jude, I think the second part is, you know, 0:03:17.240 --> 0:03:19.320 in the eviction moratory of case, where the court actually 0:03:19.320 --> 0:03:23.320 did explain itself, it still seems problematic. That's such a 0:03:23.320 --> 0:03:26.840 major issue effect that millions of people is being decided 0:03:26.960 --> 0:03:32.240 incredibly quickly, under rushed circumstances, with really only the skimpiest 0:03:32.400 --> 0:03:35.600 level of briefing, with no oral argument, and in a 0:03:35.680 --> 0:03:39.040 context where I think frankly the Court has not historically 0:03:39.040 --> 0:03:41.320 been at its best, and so I think the pressure 0:03:41.360 --> 0:03:43.920 on the justices is not just to be more transparent 0:03:44.200 --> 0:03:46.839 when handing down these rulings, but also to be more 0:03:46.960 --> 0:03:50.560 thorough and provide as much of an opportunity for involvement 0:03:50.600 --> 0:03:53.640 for plenary review, provided thorough going and explanation for what 0:03:53.680 --> 0:03:56.560 it's doing, so that it's keeping with what we tend 0:03:56.600 --> 0:03:59.560 to think of as principles of responsible judicial decision making. 0:04:00.320 --> 0:04:03.080 They're supposed to be a showing of irreparable harm to 0:04:03.160 --> 0:04:05.360 the court, right if the Court takes the case on 0:04:05.400 --> 0:04:09.240 an emergency basis. In these two cases, where was the 0:04:09.280 --> 0:04:12.080 irreparable harm if the Court didn't act, You know, the 0:04:12.120 --> 0:04:17.600 Court could have certainly waited on reinstituting the Trump Remained 0:04:17.600 --> 0:04:20.520 in Mexico policy. Well, and I think I think in 0:04:20.560 --> 0:04:23.719 both cases there actually was a pretty good argument for 0:04:23.960 --> 0:04:26.760 the Court moving. I mean, so in the MPP case, 0:04:27.160 --> 0:04:29.680 you know, the Biden administration was basically being ordered to 0:04:30.520 --> 0:04:33.320 um to rescue this policy right away. You know, if 0:04:33.360 --> 0:04:35.760 anything I said that should have augured in favor of 0:04:36.000 --> 0:04:38.480 slowing things down if I'm the Supreme Court, and so, 0:04:38.800 --> 0:04:42.799 you know, by not grant him the Biden administration's application 0:04:42.880 --> 0:04:46.920 for a stay. I think the court exacerbated that urgency 0:04:46.920 --> 0:04:50.000 and that exigency the eventually moratorium in Jude. Frankly, I 0:04:50.000 --> 0:04:51.839 think it's a harder case because I think there's harms 0:04:51.839 --> 0:04:55.880 on both sides. Um there's the obvious harms to landlords 0:04:56.480 --> 0:04:58.040 who you know, I think many of whom have had 0:04:58.080 --> 0:05:01.359 trouble recouping the funds that the government has made available 0:05:01.400 --> 0:05:04.080 to try to offset the effects the effects of the moratorium. 0:05:04.440 --> 0:05:06.040 And of course there's the obvious part of the folks 0:05:06.080 --> 0:05:08.719 who risk now being thrown on the streets. I think 0:05:08.800 --> 0:05:13.440 the problem runs much deeper than those two cases. The 0:05:13.480 --> 0:05:17.440 problem is that the Court has increasingly tilted the scales 0:05:17.560 --> 0:05:20.800 when it looks at the equities towards the party it's 0:05:20.839 --> 0:05:23.800 more sympathetic to on the merit. So that you know 0:05:23.839 --> 0:05:26.719 the fact that an mp P you have potentially hundreds 0:05:26.720 --> 0:05:29.600 of thousands of a stylum applicants who now faced the 0:05:29.720 --> 0:05:32.839 very real physical risk that comes with being in Mexico 0:05:32.920 --> 0:05:35.240 and the very real risk that it will prejudice their 0:05:35.240 --> 0:05:37.520 ability to apply for asylum. That seems to be no 0:05:37.600 --> 0:05:40.560 never mind to the Court's analysis, and I think that's 0:05:40.560 --> 0:05:43.000 the real concern is that one of two things is true. 0:05:43.040 --> 0:05:46.440 Either that's disappeared from the Court's analysis and that has 0:05:46.480 --> 0:05:48.760 problems of its own, or it's not that the Court 0:05:48.800 --> 0:05:51.160 is doing a wealthfully poor job to explain in itself. 0:05:51.320 --> 0:05:53.320 And so, you know, I think the there's sort of 0:05:53.320 --> 0:05:57.200 different layers to what people find problematic about the shadow docket. 0:05:57.240 --> 0:06:00.200 I think the lowest tending fruit is the insta fresh 0:06:00.200 --> 0:06:02.520 and explanations from the justices for why their ruling the 0:06:02.520 --> 0:06:08.279 way they are with the migrant protection protocols. There, the 0:06:08.360 --> 0:06:12.440 Court is telling the Biden administration that it has to 0:06:12.600 --> 0:06:15.720 change its policy. You know, a policy that hasn't been 0:06:15.839 --> 0:06:17.800 used in more than a year, wasn't even used at 0:06:17.839 --> 0:06:21.040 the end of the Trump administration. That seems like a 0:06:21.080 --> 0:06:26.560 big step to take in an emergency procedure. I think 0:06:26.560 --> 0:06:28.160 it's an enormous step to take. I think, you know, 0:06:28.279 --> 0:06:30.839 the tricky part here is that we saw over and 0:06:30.839 --> 0:06:34.240 over agains are on the Trump administration, the Court actually 0:06:34.600 --> 0:06:39.840 moving quite aggressively to stop lower courts that had blocked 0:06:40.200 --> 0:06:43.000 Trump administration immigration policies. That immigration is actually one of 0:06:43.000 --> 0:06:45.440 the most fertile areas of the shadow docket, or the 0:06:45.440 --> 0:06:48.560 trum administration. There were at least eleven different times where 0:06:48.640 --> 0:06:51.919 lower courts had blocked Trump immigration policies and the Supreme 0:06:51.920 --> 0:06:55.280 Court froze the lower courts injunction. So I think the 0:06:55.640 --> 0:06:58.360 irony of the MPP ruling is it really drives home 0:06:58.960 --> 0:07:03.840 just how partisans these rulings appear, and just how ideological 0:07:03.920 --> 0:07:07.799 they've become, because the same deference that the Court showed 0:07:07.839 --> 0:07:11.080 towards the executive branch when it came to immigration policy 0:07:11.200 --> 0:07:13.800 under a Republican president all of a sudden seemed to 0:07:13.840 --> 0:07:16.920 disappear when it comes to immigration policy and or democratic 0:07:16.960 --> 0:07:19.840 president and June Again, I think this goes back to 0:07:19.880 --> 0:07:23.400 the larger point, which is, if the court explained itself, 0:07:23.920 --> 0:07:26.720 it would be harder for folks to raise that concern. 0:07:26.760 --> 0:07:28.800 It would be harder for folks to level that charge. 0:07:29.240 --> 0:07:32.000 But when you couple the appearance of that kind of 0:07:32.000 --> 0:07:35.760 favoritism with the Court's refusal to actually provide an explanation, 0:07:36.360 --> 0:07:39.800 that's what makes this certainly look so insidious, whether in 0:07:39.880 --> 0:07:42.840 fact it really is. What about the fact that there 0:07:42.880 --> 0:07:45.840 isn't a full briefing in these and there aren't oral 0:07:45.960 --> 0:07:49.160 arguments in these. I mean, so you know, I think 0:07:49.320 --> 0:07:51.600 folks who are who are sort of defenders of what 0:07:51.640 --> 0:07:54.120 the Supreme Court has been doing. I think too often 0:07:54.920 --> 0:07:57.520 caricature critics like me and say that, like we just said, 0:07:57.560 --> 0:07:59.080 there shouldn't be a show doctor at all, That's just 0:07:59.160 --> 0:08:01.600 not true. I mean sense, no one disputes that there's 0:08:01.640 --> 0:08:04.400 a need for the Supreme Court to have the ability 0:08:04.760 --> 0:08:08.800 to issue emergency relief in extraordinary circumstances. I think the 0:08:08.840 --> 0:08:11.400 way that it has gotten a bit out of hands 0:08:12.120 --> 0:08:15.840 is how far that release is running beyond the parties. 0:08:15.880 --> 0:08:18.880 Where we've seen the Supreme Court already seven times this 0:08:19.080 --> 0:08:23.480 term blocked by it delt state policies and through emergency 0:08:23.480 --> 0:08:26.120 injunctions when it had only issued four of those in 0:08:26.200 --> 0:08:29.400 John Roberts's first fifty years. Is chief justice right where 0:08:29.640 --> 0:08:33.000 the Court itself is basically going out of its way 0:08:33.400 --> 0:08:36.040 not just to sort of temporarily protect the rights of 0:08:36.080 --> 0:08:40.079 the parties in a case, but actually to control government 0:08:40.120 --> 0:08:43.280 policies large while the case works its way through the court. 0:08:43.800 --> 0:08:46.160 And I think that's the part of the shadow doctors 0:08:46.160 --> 0:08:50.000 that is to me the most problematic, because that's where 0:08:50.000 --> 0:08:53.560 you have all of these transparency, legitimacy concerns It's not 0:08:53.640 --> 0:08:55.840 that we since the Court should lack the ability to 0:08:55.880 --> 0:08:59.280 issue emergency ruling. It's that we think emergency ruling should 0:08:59.320 --> 0:09:03.600 be narrowly or subscribed and not be in the business 0:09:03.720 --> 0:09:08.679 of making broad new pronouncements about the substance of federal law. 0:09:08.720 --> 0:09:12.720 Do these decisions have the same presidential authority? I mean, 0:09:12.800 --> 0:09:16.040 can courts cite them as precedent in the same way 0:09:16.080 --> 0:09:19.200 they can with regular decisions of the Supreme Court on 0:09:19.240 --> 0:09:22.520 the merits. That's another piece of the story too, is 0:09:22.679 --> 0:09:26.679 historically the Supreme Court had insisted that these kinds of 0:09:26.760 --> 0:09:30.520 rulings were not presidential, certainly, not if they came through 0:09:30.600 --> 0:09:33.400 unsigned orders, and even not to the same extent if 0:09:33.400 --> 0:09:36.520 they came with a majority opinion. And we've seen the 0:09:36.559 --> 0:09:39.160 Court run away from that this term. So there's a 0:09:39.200 --> 0:09:42.839 couple of examples in COVID cases where the Supreme Court 0:09:42.920 --> 0:09:48.119 has treated unsigned orders as precedents find them the lower courts. 0:09:48.160 --> 0:09:51.640 There's a decision from April called Tandon versus Newsom, where 0:09:51.720 --> 0:09:55.480 at the end of the unsigned majority opinion, the Court 0:09:55.559 --> 0:09:59.800 chastises the Ninth Circuit for refusing them to correctly read 0:10:00.360 --> 0:10:03.960 the tea leads of four prior unsigned orders. So yeah, 0:10:04.000 --> 0:10:07.360 I mean the justices themselves June are now treating not 0:10:07.520 --> 0:10:10.120 just the opinions that are coming out of the shadow docket, 0:10:10.360 --> 0:10:14.240 but even some of the unsigned orders as having precedential effect. 0:10:14.440 --> 0:10:16.360 You know that it's more than just Biden the parties 0:10:16.360 --> 0:10:18.920 that actually also should be followed by the lower courts. 0:10:19.000 --> 0:10:21.640 Of course, that's an enormous problem unto itself, because if 0:10:21.679 --> 0:10:23.880 all the Supreme Court is doing is given us one 0:10:23.920 --> 0:10:27.160 sentence of explanation and telling us that that's precedent Jude, 0:10:27.200 --> 0:10:28.959 it's not hard to see how people can be pretty 0:10:28.960 --> 0:10:31.880 confused about exactly what precedent it is and what the 0:10:31.880 --> 0:10:34.240 Supreme Court has actually told the lower courts to do. 0:10:34.640 --> 0:10:38.080 When did we start to see this increase in emergency 0:10:38.280 --> 0:10:41.760 orders in the shadow dockets, the up kick in emergency 0:10:41.840 --> 0:10:45.560 applications June, we really see throwing the Trump administration. And 0:10:45.600 --> 0:10:48.240 some of that is because of the Trump administration. I mean, 0:10:48.280 --> 0:10:51.719 Trump files forty one applications for emergency relief from the 0:10:51.720 --> 0:10:54.520 Supreme Court in four years, compared to a total of 0:10:54.640 --> 0:10:57.959 eight in the previous sixteen years by the Obama and 0:10:58.000 --> 0:11:00.960 Bush administrations combined. So that's the twenty old increase in 0:11:01.000 --> 0:11:03.160 applications from the federal government. But it's not just the 0:11:03.160 --> 0:11:05.319 federal governments in private party filing more and more of 0:11:05.320 --> 0:11:08.439 these applications. And I think where we really see this 0:11:08.520 --> 0:11:13.120 trend accelerate June is when Justice Kavanaugh replaced Justice Kennedy 0:11:13.320 --> 0:11:15.560 in the summer of And I think there are some 0:11:15.600 --> 0:11:18.920 pretty obvious explanations for that. You know, I think Justice Kennedy, 0:11:18.960 --> 0:11:21.920 as you know, was, if not a moderate, at least 0:11:21.960 --> 0:11:24.880 a moderate and influence on both of the sort of 0:11:24.920 --> 0:11:27.000 wings of the court to his left and his right. 0:11:27.200 --> 0:11:30.120 And with his departure, I think any procedural constraints that 0:11:30.200 --> 0:11:32.040 might have come with that went with him. And so 0:11:32.080 --> 0:11:34.600 now there's not only a solid conservative majority on the 0:11:34.640 --> 0:11:37.880 merit of these cases, but also now a staali conservative 0:11:37.920 --> 0:11:42.839 majority to use this procedural vehicle to basically effectively decide 0:11:42.880 --> 0:11:45.120 those merits. So any of the data, no matter how 0:11:45.200 --> 0:11:48.200 you slice it, you really see this phenomenon takeoff starting 0:11:48.200 --> 0:11:51.600 with the court October eighteen term. You know, Justice Kavanaugh's 0:11:51.640 --> 0:11:53.760 first on the bench. Is there a hint that some 0:11:53.840 --> 0:11:57.520 of the justices have problems with the shadow docket In 0:11:57.600 --> 0:12:01.520 the eviction case, Justice Stephen Briar referenced some of the 0:12:01.679 --> 0:12:05.400 shadow docket criticism in his dissenting opinion. He said, these 0:12:05.480 --> 0:12:09.920 questions call for considered decision making, informed by full briefing 0:12:10.000 --> 0:12:15.040 and argument. Their answers impact the health of millions. Yeah, 0:12:15.040 --> 0:12:16.920 I mean, so you know, that's I think the most 0:12:17.000 --> 0:12:19.760 Justice Briar has said, at least in an opinion, to 0:12:19.840 --> 0:12:22.920 criticize the shadow dockets. Um just the stood of my work, 0:12:23.000 --> 0:12:26.000 perhaps not surprisingly has been much more outspoken. She's written 0:12:26.040 --> 0:12:28.160 a couple of descents in these cases where she has 0:12:28.200 --> 0:12:32.240 been quite critical of the conservative majority for how it 0:12:32.280 --> 0:12:34.600 is to use the shadow docket. But you know, June, 0:12:34.720 --> 0:12:37.200 these have been and far between, and I actually think 0:12:37.640 --> 0:12:40.360 it's been you know, part of why this has been 0:12:40.360 --> 0:12:43.640 flying under the radar is because to the state of 0:12:43.720 --> 0:12:47.560 extent as the conservative justices, I think the more progressive 0:12:47.600 --> 0:12:51.319 justices are fighting these cases on their merits. And so, 0:12:51.480 --> 0:12:53.960 you know, a good example again is that Tandon religious 0:12:53.960 --> 0:12:57.320 liberty case from April, where Justice Kagan writes this incredibly 0:12:57.360 --> 0:13:02.120 powerful and incredibly sharp brief the sent about why you 0:13:02.200 --> 0:13:05.960 just couldn't agree with the Supreme Court's interpretation of the 0:13:05.960 --> 0:13:09.360 free exercise clause, but sort of allies, the fact that 0:13:09.400 --> 0:13:11.200 the Court was doing this in the context of the 0:13:11.200 --> 0:13:13.720 shadow docets we it's not supposed to UM and so 0:13:13.760 --> 0:13:16.040 I think, you know, the procedural objections are starting to 0:13:16.120 --> 0:13:18.959 get a bit louder from the left, but they've been 0:13:19.000 --> 0:13:21.360 with the exception of Justice Sodomitory, they've been pretty tame 0:13:21.840 --> 0:13:24.040 for much of the you know, sort of uptick and 0:13:24.080 --> 0:13:25.720 for much of the first couple of years of this 0:13:25.840 --> 0:13:29.600 of the rise of this pattern. What's the greatest concern 0:13:29.800 --> 0:13:34.960 Is it the lack of transparency? Is it the rushed proceedings? 0:13:35.400 --> 0:13:39.880 What's the greatest concern here for you or for other scholars? Um? 0:13:39.920 --> 0:13:43.040 It's a really good question. I think the short answer 0:13:43.240 --> 0:13:46.360 is um, all things equal. If I could be one 0:13:46.360 --> 0:13:48.440 thing would be the transparency, if the justices would just 0:13:48.520 --> 0:13:51.200 write more UM and so in that respect, I would 0:13:51.280 --> 0:13:54.319 encourage folks to put side by side the MPP decision 0:13:54.320 --> 0:13:57.120 and the eviction moratorium. You know, whatever you think of 0:13:57.160 --> 0:14:00.920 the eviction moratorium ruling, we got eight pages of explanation 0:14:00.960 --> 0:14:03.760 from the court identifying what the standard of review was, 0:14:03.840 --> 0:14:07.520 identifying why, you know, they thought that the Alabama Association 0:14:07.559 --> 0:14:10.840 of Realtors application statisfy that center of review. June. You 0:14:10.880 --> 0:14:13.040 and I might disagree with some or all of that reasoning, 0:14:13.040 --> 0:14:14.920 but at least we got it. And so you know, 0:14:15.000 --> 0:14:16.720 there's lots of other stuff I'd like to fix, but 0:14:16.760 --> 0:14:18.880 if there was one big thing, I just wish the 0:14:18.920 --> 0:14:22.320 Court would explain itself a lot more often. Not because 0:14:22.320 --> 0:14:24.680 we're going to agree with them, but because it's so 0:14:24.760 --> 0:14:26.920 much better for everybody if we at least know why 0:14:27.000 --> 0:14:29.680 the Court is doing what it's doing. Thanks Steve. That's 0:14:29.680 --> 0:14:32.880 Professor Stephen Vladdock of the University of Texas Law School. 0:14:34.840 --> 0:14:38.040 All right, Mr clinteen, let me ask you. Do you 0:14:38.080 --> 0:14:40.200 think it's a juror you would be able to set 0:14:40.240 --> 0:14:43.400 aside any prior opinion you might hold about the savings 0:14:43.440 --> 0:14:47.320 alone industry? That was a question, sir, What do I 0:14:47.400 --> 0:14:50.960 like banks? Your honor? May I have a minute place 0:14:50.960 --> 0:14:55.360 to confer with my colleagues. You may dump them. Let's 0:14:55.360 --> 0:14:58.240 get to number four six, and I'd say these number 0:14:58.240 --> 0:15:00.400 twelve except the Crosscutor's gonna be done and do it 0:15:00.440 --> 0:15:03.960 for us. In the movie The Devil's Advocate, Keyana Reeves 0:15:04.040 --> 0:15:07.320 is a lawyer using peremptory challenges to get rid of 0:15:07.440 --> 0:15:09.920 jurors without having to give a reason to the judge. 0:15:10.400 --> 0:15:13.680 It's a tool both prosecutors and defense attorneys used to 0:15:13.720 --> 0:15:16.560 get a jury they feel will be sympathetic to their case. 0:15:17.160 --> 0:15:22.400 Now Arizona is taking a bold, unprecedented step. It's eliminating 0:15:22.400 --> 0:15:27.160 peremptory challenges entirely, the first state to do so, embracing 0:15:27.160 --> 0:15:30.320 a reform proposed by Justice third Goood Marshal more than 0:15:30.440 --> 0:15:33.720 three decades ago as the only way to end racial 0:15:33.720 --> 0:15:38.000 discrimination in jury selection. Joining me as former federal prosecutor 0:15:38.080 --> 0:15:43.320 Robert Mintz, a partner macrter in English, start by telling 0:15:43.440 --> 0:15:48.960 us about jury selection and URVOI dear who asked the questions, 0:15:49.120 --> 0:15:54.480 just sort of give us the broad overview of jury selection. Sure, 0:15:55.200 --> 0:15:57.400 the selection of a jury is one of the most 0:15:57.440 --> 0:16:02.200 important phases of any criminal or civil trial because those 0:16:02.200 --> 0:16:05.920 are the individuals will ultimately decide the case. And in 0:16:05.960 --> 0:16:09.440 a criminal case, it's especially important because those are the 0:16:09.560 --> 0:16:13.440 jurors who will have to decide unanimously as to whether 0:16:13.520 --> 0:16:16.520 or not the defendant is guilty or not guilty, and 0:16:16.600 --> 0:16:19.960 ultimately may go to jail, often for a long period 0:16:19.960 --> 0:16:23.200 of time. So when you're a prosecutor and you're a 0:16:23.240 --> 0:16:26.480 defense lawyer. The selection of the jury in a criminal 0:16:26.560 --> 0:16:29.800 case is a vital part of the case. Prosecutors a 0:16:29.920 --> 0:16:33.480 defense lawyers spend a lot of time questioning jurors and 0:16:33.600 --> 0:16:37.080 trying to determine whether there is some kind of implicit bias, 0:16:37.080 --> 0:16:39.960 either for or against the defendant if you're the defense 0:16:40.040 --> 0:16:43.480 lawyer lawyer, or for or against the government if you're 0:16:43.480 --> 0:16:48.000 the prosecutor. Typically, in both criminal and civil jury trials, 0:16:48.040 --> 0:16:51.680 a court will assemble a panel of potential jurors that 0:16:51.840 --> 0:16:54.840 is much larger than the actual number of jurors needed 0:16:54.920 --> 0:16:57.560 to hear the case, and the reason for that is 0:16:57.800 --> 0:17:01.040 that there is a long process picking a jury where 0:17:01.120 --> 0:17:03.600 both lawyers from both sides of the case get to 0:17:03.640 --> 0:17:07.800 ask a series of questions to jurors to determine whether 0:17:07.880 --> 0:17:11.040 or not they believe that those jurors can be fair 0:17:11.080 --> 0:17:13.919 and impartial and can give their client, whether it's the 0:17:14.000 --> 0:17:17.119 United States if you're a prosecutor, or the state if 0:17:17.160 --> 0:17:20.000 you're a prosecutor, or whether it's the defendant if you're 0:17:20.080 --> 0:17:23.159 a defense lawyer, whether they can sit there here the 0:17:23.200 --> 0:17:26.360 evidence and make a decision solely based on the evidence 0:17:26.400 --> 0:17:30.120 that is presented in the courtroom and that their decision 0:17:30.160 --> 0:17:33.640 will ultimately not be affected by any express or even 0:17:33.680 --> 0:17:37.520 implicit biases that they may bring into the courtroom that 0:17:37.560 --> 0:17:41.840 could possibly affect their decision. So explain the challenges for 0:17:42.000 --> 0:17:46.720 cause and peremptory challenges. So. Although the rules vary from 0:17:46.760 --> 0:17:49.000 state to state, and the federal system has its own 0:17:49.040 --> 0:17:51.680 set of rules, the way the process works is that 0:17:51.800 --> 0:17:55.080 lawyers on both sides get to ask a judge to 0:17:55.200 --> 0:17:59.240 remove a juror for cause if they can articulate a 0:17:59.320 --> 0:18:02.679 reason as to why they believe that cur cannot be 0:18:02.760 --> 0:18:06.000 impartial and cannot fairly hear the evidence in the case. 0:18:06.600 --> 0:18:10.919 Peremptory challenges allow lawyers to strike a juror for no 0:18:11.119 --> 0:18:14.320 reason at all. Lawyers do not have to explain why 0:18:14.359 --> 0:18:16.600 they're striking a juror. They do not have to be 0:18:16.640 --> 0:18:19.679 able to convince the judge that the that the perspective 0:18:19.760 --> 0:18:22.840 juror may not be fair. They can simply remove a 0:18:22.960 --> 0:18:26.320 juror for any reason at all. The number of peremptory 0:18:26.400 --> 0:18:30.399 challenges available to lawyers vary depending upon the system, depending 0:18:30.440 --> 0:18:33.159 upon the state, depending upon the type of case, but 0:18:33.359 --> 0:18:37.600 for federal felony trials, for example, prosecutors may strike up 0:18:37.640 --> 0:18:40.800 to six cures for a peremptory basis, in other words, 0:18:40.800 --> 0:18:43.200 for no reason at all, while the defense may strike 0:18:43.280 --> 0:18:47.359 up to ten jurs on a peremptory basis, but under 0:18:47.400 --> 0:18:51.919 the bats In case, if it's thought that discrimination is 0:18:51.960 --> 0:18:54.919 the motive for a peremptory challenge, they can bring that 0:18:55.040 --> 0:18:59.359 to the judge. There are few constitutional limits on these 0:18:59.400 --> 0:19:03.520 peremptory challenges, but there is one constitutional limit that goes 0:19:03.560 --> 0:19:06.600 back to a case called bats And versus Kentucky, which 0:19:06.640 --> 0:19:10.280 was a Supreme Court case decided in Night six. In 0:19:10.320 --> 0:19:15.200 that particular case, a black man was charged for burglary 0:19:15.240 --> 0:19:19.560 and receipt of stolen goods. The prosecutor used these peremptory challenges, 0:19:19.600 --> 0:19:22.920 in other words, without giving any basis whatsoever to suggest 0:19:22.960 --> 0:19:25.080 that a juror would be it would not be able 0:19:25.080 --> 0:19:29.080 to impartially decide the fate of the defendant, to eliminate 0:19:29.240 --> 0:19:33.600 all four African American perspective jurors. The defendant in that 0:19:33.680 --> 0:19:36.920 case was convicted, and then in the seven to two ruling, 0:19:36.960 --> 0:19:40.439 the Supreme Court overturned the conviction and said that the 0:19:40.480 --> 0:19:44.679 prosecutor's action unconstitutionally denied the defendant his right to a 0:19:44.720 --> 0:19:47.440 fair trial and his right to equal treatment under the law. 0:19:47.840 --> 0:19:50.399 So what is a defense attorney or a prosecutor have 0:19:50.520 --> 0:19:53.280 to prove to make a bats and challenge? What happens 0:19:53.320 --> 0:19:56.800 the judge decides. So what Batson stands for is the 0:19:56.880 --> 0:20:00.320 proposition that lawyers cannot remove a juror because of that 0:20:00.440 --> 0:20:04.320 juror's race. What it means in practice is that if 0:20:04.320 --> 0:20:06.960 a defendant raises a credible claim that a juror was 0:20:07.000 --> 0:20:10.320 excluded because of that curer's race, then the burden shift 0:20:10.359 --> 0:20:13.960 to the prosecution to come forward with a neutral explanation 0:20:14.280 --> 0:20:17.560 as to why it decided to exclude a particular adjuror. 0:20:17.880 --> 0:20:20.280 At that point, it's up to the judge to determine 0:20:20.440 --> 0:20:23.840 whom to believe. The problem with that system is that 0:20:23.920 --> 0:20:27.680 prosecutors can come up with all kinds of neutral reasons 0:20:27.760 --> 0:20:30.080 why they might want to strike a juror. For example, 0:20:30.359 --> 0:20:33.400 they may believe that the juror expressed a bias against police. 0:20:33.720 --> 0:20:36.280 They may claim that a juror is inattentive, and then 0:20:36.280 --> 0:20:39.920 it's very difficult ultimately for the judge to determine whether 0:20:40.000 --> 0:20:43.080 or not there was truly a race neutral explanation for 0:20:43.240 --> 0:20:46.680 striking that curre or whether there was some racially motivated 0:20:46.760 --> 0:20:50.399 reason for trying to eliminate that juror from the case. 0:20:50.920 --> 0:20:55.040 So Bob tell us about the history of peremptories. Peremptory 0:20:55.119 --> 0:20:58.480 challenges are nothing new. In fact, they actually go back 0:20:58.800 --> 0:21:02.879 to English law into the thirteen hundreds. They were regionally 0:21:03.320 --> 0:21:06.880 put into the system in order to give criminal defendants 0:21:07.200 --> 0:21:11.600 the ability to remove jurors basically for any reason at all, 0:21:11.640 --> 0:21:13.960 and the idea was that in a criminal case, the 0:21:14.080 --> 0:21:16.879 life and the liberty of a criminal defendant was at stake, 0:21:16.960 --> 0:21:20.240 and so they should have some additional rights to exclude 0:21:20.320 --> 0:21:23.360 jurors who they think, for any reason at all, might 0:21:23.400 --> 0:21:26.520 be biased against them. When that process came to the 0:21:26.600 --> 0:21:30.719 United States, American courts didn't follow that sanctuaries old English 0:21:30.720 --> 0:21:34.280 practice of only giving peremptory strikes to defense counsel in 0:21:34.320 --> 0:21:38.159 criminal cases, and they applied it to both prosecutors and 0:21:38.320 --> 0:21:43.639 defense lawyers. So the peremptory challenges have been coming under 0:21:43.800 --> 0:21:47.639 fire for quite a while, but particularly during the George 0:21:47.680 --> 0:21:52.280 Floyd case, that peremptory challenges are often used to exclude 0:21:52.359 --> 0:21:56.600 jurors because of their race. The real controversy here is 0:21:56.600 --> 0:21:59.840 that when you look at the evidence. There are studies 0:22:00.000 --> 0:22:04.880 after studies which show that peremptory challenges result in a 0:22:05.000 --> 0:22:08.159 racially imbalanced jury. So, for example, there was a study 0:22:08.160 --> 0:22:11.240 in Arizona that showed that the proportion of wake curers 0:22:11.680 --> 0:22:15.600 seeded varied only by three percent from their representation in 0:22:15.600 --> 0:22:19.600 the population, as compared to black curs, who were underrepresented 0:22:19.600 --> 0:22:26.000 by six Similarly, Hispanics were underrepresented on juries by So 0:22:26.280 --> 0:22:30.480 the argument against the peremptory challenges that it results in 0:22:30.520 --> 0:22:34.000 a racially in balanced jury and it does not truly 0:22:34.400 --> 0:22:37.119 give a defendant the right to have a jury of 0:22:37.280 --> 0:22:41.400 his peers beside their case. So now Arizona is going 0:22:41.440 --> 0:22:46.160 to completely eliminate peremptory challenges, the first state to do so. 0:22:46.640 --> 0:22:49.359 I assume that why they're doing this is they think 0:22:49.480 --> 0:22:55.080 that by eliminating peremptory challenges, they're going to eliminate racially 0:22:55.160 --> 0:22:59.359