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Steve Vladeck: The Supreme Court’s Shadow Docket

May 18, 2023
Notes
Transcript

Justice Alito frequently complains that critics of the court are trying to delegitimize it. But it’s the Supreme Court’s own actions—including its late-night, unsigned, and unexplained decisions on the shadow docket— that are undermining the institution. Steve Vladeck joins Charlie Sykes today.

show notes

https://www.hachettebookgroup.com/contributor/stephen-vladeck/

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This transcript was generated automatically and may contain errors and omissions. Ironically, the transcription service has particular problems with the word “bulwark,” so you may see it mangled as “Bullard,” “Boulart,” or even “bull word.” Enjoy!
  • Speaker 1
    0:00:08

    Welcome to the Bulwark podcast. I’m Charlie Sykes. It is May eighteenth two thousand twenty three, and we are on the road in case you miss at the other Bulwark folks are are on the road. We’re going to be in New York City tomorrow night. As a result, this podcast is pre taped.
  • Speaker 1
    0:00:24

    So If there’s been some major development that we are not talking about, it’s not because we’re ignoring it. It’s because it hasn’t happened yet. So I, you know, cut us a little bit of slack here. We are joined today by Steve Vladik, who is professor at the University of Texas Law School in Austin, and is the author of a brand new book The Shadow Docket, How Supreme Court uses stealth rulings to amass power and undermine the republic. He’s also the co host of the National Security Secret Podcast.
  • Speaker 1
    0:00:52

    So welcome to another podcast, Steve.
  • Speaker 2
    0:00:55

    Thanks, Charlie. It’s a real treat to be with you.
  • Speaker 1
    0:00:57

    This is kinda one of the the magic sauces of podcast. If you get other podcast hosts to come on your podcast you’re kind of, you know, it’s almost cheating. I I feel.
  • Speaker 2
    0:01:06

    Crossover episodes.
  • Speaker 1
    0:01:07

    It is a little bit of a crossover episode. So The reviews for your book have been very, very positive, but one person who I’m guessing is not a big fan of yours. Samuelito is very, very unhappy. You and he’s very unhappy with the criticism of the shadow docket. And he’s been taking some shots at you, hasn’t he?
  • Speaker 1
    0:01:25

    I mean, you’re kinda mixing it up with Supreme Court Justice.
  • Speaker 2
    0:01:28

    You know, leave it to Affilius fan to pick on a Metz fan. I mean, I think it’s just it’s the nature of the beast. Yeah. You know, I actually think Charlie that Justice Lito’s public statements both recently and going all the way back to a speech he gave at Notre Dame Law School in September twenty twenty one have been useful? I think we’re better off when the justices are actually taking steps to publicly defend their behavior and to publicly respond to critics.
  • Speaker 2
    0:01:53

    One of the, you know, things that I criticize in the book and outside of the book about all these unsigned unexplained orders is how little the court is defending itself. So I don’t mind the engagement. I actually think it’s, you know, it’s great that this is the conversation we’re happy Okay.
  • Speaker 1
    0:02:08

    So one of the things that I mean, you’ve made it very clear is you don’t want this book to be just for lawyers. You want non lawyers to know the ways in which, you know, Supreme Court rulings affect everybody, you know, beyond the big decisions the court makes each term. So keeping in mind that we’re gonna be talking to non lawyers here. I’m gonna ask you to find some terms as we go through. One of Elito’s complaints is that critics, including you, are trying to delegitimize the court.
  • Speaker 1
    0:02:35

    So let’s talk about that because there’s been a lot of talk about the legitimacy of the court and various stories that might undermine it What does it mean? What would happen if we delegitimize the court? What does that look like?
  • Speaker 2
    0:02:47

    So, I mean, I think if we jump all the way to the end of that conversation. A court that is illegitimate, a court that has been successfully delegitimized is a court no one listens to. And and it goes back to you know why do we follow Supreme Court decisions with which we disagree. The Supreme Court has no real police force. I mean, it has a police force but they don’t go out of the building.
  • Speaker 2
    0:03:09

    Right? The Supreme Court has no authority to go out on its own and enforce its decisions. And so there’s this, I think, delicate but clearer tradition. Where the court’s power, its moral authority. Indeed, I think it’s it’s legitimacy, comes from public acceptance of the same.
  • Speaker 2
    0:03:27

    And that’s a weird feedback loop because it means that public awareness of the court, public criticism of the court is actually a relevant part of the conversation. We talk about the court’s authority. What gets tricky, Charlie, is that I mean, I think there is something to be said for the notion that, like, criticizing the court simply to weaken it. Right? I think would be problematic if that were all that was going on.
  • Speaker 2
    0:03:51

    What this charge misses and I think what the book tries to flesh out. Is that there’s plenty in the court’s own behavior that merits criticism. And I think, you know, we should be able to have two conversations at once. We should be able to say, hey, what is the court doing that’s so problematic from a behavioral perspective? Without necessarily also having to say like, you know, why are you trying to delegitimize the court?
  • Speaker 2
    0:04:14

    I can’t speak for everybody, Charlie, but for me, I’m actually here to save the court, not to bury it. I think we need a healthy court. I think we need a court that can hand down unpopular decisions, especially say after a contested election. And so I guess from my perspective, I think justice Lito is missing the mark when he says that critics especially of the shadow docket, you know, which I know we’ll get into. Are trying to undermine the court.
  • Speaker 2
    0:04:39

    I think what we’re trying to do is show that the court is at least in some respects undermining itself.
  • Speaker 1
    0:04:44

    See, this is the crucial distinction because it to to the extent that there is a danger of delegitimizing the court, it seems to be coming from the court itself by its own action. And so when critics point out, if you do this might happen, that feels more like a warning than undermining the court. I think that’s your point here is that the court itself is on a path that Will Saletan time undermine its legitimacy. So it is not the critics who are undermining. It’s the critics who are pointing out what the court is doing to itself.
  • Speaker 2
    0:05:15

    That’s certainly how I feel, Charlie. I can’t speak for all the critics. I’m sure there are some progressive critics of the court who actually are very invested. In trying to weaken it as an institution. I’m just not one of them.
  • Speaker 2
    0:05:27

    And so, you know, this is where I think the elite critique rings at least somewhat hollow. But the other part of the story is, you know, a big part of why I wrote this book is because so much of our contemporary discourse about the court happens on this incredibly superficial level. Yeah. I think that’s even a fair charge of some of Justice Alito’s responses that they’re very superficial. There’s nuance here in exactly why folks like me are worried about the court’s behavior.
  • Speaker 2
    0:05:52

    It’s not just because there are six conservatives. It’s not just because they hand down rulings like dobbs. But there’s also Nuance in the defenses of the court. And I think that’s why having a conversation that actually lays out the historical progression of the court power and how we got from, you know, seventeen eighty nine into today and how the current court’s behavior is out of kilter. With its predecessors.
  • Speaker 2
    0:06:17

    I think is such an important step before whatever we’re gonna disagree about before those disagreements can be informed by the right baseline.
  • Speaker 1
    0:06:25

    So I wanna just stick with this for a moment, what it would look like for a court that has been effectively delegitimized. Would it be a president or an agency or just another litigant just saying, we’re just going to ignore the court. We’re gonna continue to enforce a law that has been found unconstitutional or that we are how would it play out in real time?
  • Speaker 2
    0:06:46

    So, I mean, I think that we can see it in any number of respects. I mean, when we got all the way to the bottom, I think you would see presidents refusing to comply with court orders. Private parties refusing to comply with court orders. I think you would see efforts by the political branches. To actually affirmatively undermine the court, you know, zeroing out the Supreme Court’s budget, except for the Justice’s salaries to avoid violating Article three the Constitution.
  • Speaker 2
    0:07:10

    Lots of other steps to basically sort of minimize and reduce the court to basically a shell of itself, where the court can do nothing but obey the whims of its political masters. We’re nowhere close to that. I don’t think anyone would think that we are. But, you know, I think the problem is the justices should be the first nine people invested in ensuring that we don’t even start going down a slippery slope toward that cataclysmic apocalyptic future.
  • Speaker 1
    0:07:36

    Well, the the reason this is in the back of my mind and and why I think we ought to talk about it is because one of the things we’ve learned over the last seven, eight years is that so many of the checks and balances that we had thought were written into law actually turn out to be on the honor system. They are norms rather than actual hard laws. And so the question is, okay, so someone defies the Supreme Court. So what? What happens?
  • Speaker 1
    0:07:58

    We look around. I mean, you know, we’ve been talking about, you know, the independence of the just department is assuming that it’s there. But if the president of the United States sits in the Oval Office and says, you know, I’m gonna order you to charge these people. I going to, you know, tell people to go out and commit crimes and I am going to pardon them. You know, what exactly is the mechanism that stops all this?
  • Speaker 1
    0:08:18

    Everybody says, well, that would never happen because we have all these norms and all of these traditions. But but what happens if in fact they are violated? And this brings us to the Supreme Court because as you point out, they have no army. They have no no marshals who are gonna go out and force the president to do what they want. The constitution is not self executing.
  • Speaker 1
    0:08:36

    So this seems like it is part of this recognition how fragile these norms are across the board.
  • Speaker 2
    0:08:43

    And that’s why I find the sort of the turn, especially in the last couple of months. From especially conservative defenders of the court toward you know criticizing even the validity of an anti legitimacy critique That’s why I find that turn really dark because it seems to me that the healthier conversation is to actually fight on the ground of what reform should be. And I think progressives get caracatured for saying, oh, well, the reforms we want are to add four to six weeks to the court to impose term limits, etcetera. Yeah. That’s what a lot of progressives want, but there are so many lower hanging pieces of fruit.
  • Speaker 2
    0:09:19

    In a conversation about reasserting, you know, a healthy interbranch dynamic where the court is not nearly as unchecked not accountable. As it seems to be today. And I guess this is where I think the conversation could benefit from Nuance. Because if we look at history of the Supreme Court. You know, Charlie, I don’t think there’s ever been a period where the justices behaved repeatedly in ways that so clearly reflected a lack of concern for external accountability for being reigned in by congress for violating those norms.
  • Speaker 2
    0:09:52

    As we’re seeing today, in ways that, you know, I can’t say are unlawful, right, or impeachable. They’re not. Right? They’re just sort of eroding norms in ways that I think it’s incumbent upon the justices to actually want to abate. And ways in which I actually think it’s incumbent upon Congress regardless of who’s in control of each chamber to sort of claw back.
  • Speaker 2
    0:10:13

    I mean, you know, the book tells the story, especially in chapter one, of how much for the first two hundred years of the Supreme Court, there was this you know, push and pull between the court and Congress about what the court was gonna do, about what cases the court was gonna hear, about what role it was gonna serve. And, you know, that push and pull has largely subsided to the point where, you know, now when, you know, John Roberts is invited to testify before the senate judiciary committee he just asserts that it would raise separation of powers concerns to do so when, you know, justices have testified since time immemorial. So This is the conversation the book is trying to to spark and indeed is trying to inform. Which is if we look at the court holistically, I think we can see where the problems are even if you are sympathetic to the bottom lines that conservative justices are reaching.
  • Speaker 1
    0:11:01

    So we’re gonna get to the whole Harlan Crow ethics issue in a little while and and what must be going on in John Robert’s mind. But let’s go to the heart of your book. The book is the shadow docket. So Keep in mind that we don’t want this just for lawyers. What is the shadow docket, Steve?
  • Speaker 1
    0:11:19

    Explain it to me as a lay person.
  • Speaker 2
    0:11:21

    It sounds more nefarious than it is. The shadow docket is basically just an evocative shorthand that Chicago law professor Will Bowde came up with in twenty fifteen to describe Charlie nothing other than all of the other things the Supreme Court does besides the sixty ish fancy decisions the court hands down in the high profile cases each So, you know, we’re gonna get in the next six or seven weeks huge high profile rulings on affirmative action, on redistricting on, you know, you name it. And Will’s insight was that in the shadows. Right? Sort of in the spaces where we can’t see as well.
  • Speaker 2
    0:12:02

    The court is doing a whole lot of stuff that is often just as important. But by tradition, most of what the court is doing in the shadows is unsigned and unexplained. And so you know the the trick and the the challenge is to try to explain to not just a lay audience but lawyers. The significance, not just of individual, unsigned, and unexplained orders from the court, but of sort of bodies of unsigned and unexplained orders from the court, running the gamut from when the court decides to not take up a case. And that leads, for example, to the legalization of same sex marriage in a whole bunch of states.
  • Speaker 2
    0:12:41

    To when the court steps in to, you know, keep nationwide access to mifepristone. Right? These are all unsigned, unexplained orders producing massive effects. And the basic insight here is that we ought to pay attention to them as much as we pay attention to the more obviously visible stuff the Supreme Court does.
  • Speaker 1
    0:13:00

    So the first time that most people heard the term Shadow docket, I think was when the Supreme Court refused to block that Texas leather band abortion after six weeks. This was in September of twenty twenty one. Does that sound about right?
  • Speaker 2
    0:13:12

    Absolutely. And indeed, there’s actually media studies that showed that.
  • Speaker 1
    0:13:15

    So I mean, again, you know, one paragraph unsigned order issued just before midnight. So there was no notice this was coming up. There was no hearing. There was no argument. They were, you know, did not have, you know, lengthy explanations.
  • Speaker 1
    0:13:29

    You wrote a piece in the Washington Post shortly afterwards citing justice Kagan’s dissent. That the shadow docket decision making was increasingly inconsistent and indefensible and was actually eroding the court’s legitimacy. So you have members of the court who are saying these emergency style orders that there’s a legitimate role for them. Right? I mean, they’ve always been part of the high court’s Bulwark, but It’s the increased frequency, the breadth, and and the sort of the partisan flavor of the orders that have changed in recent years.
  • Speaker 1
    0:13:58

    So it’s not a new thing. But the way it’s being used and the style is what you’re talking about here.
  • Speaker 2
    0:14:05

    That’s exactly right. And it’s it’s so well put. I I I I wish I had put it that way in the book. The court has always had to have some mechanism for dealing with emergencies. You know, just to be clear, like the the typical case gets to the Supreme Court only at the very end.
  • Speaker 2
    0:14:19

    Right? Only after years of litigation after going through multiple levels of lower state and federal courts. Emergencies happen when at some early point in the case. A party that lost below wants the Supreme Court to adjust the status quo while the case works its way back up to the Supreme Court. So back to the mythopristone example.
  • Speaker 2
    0:14:40

    Right? The district court in Texas had basically revoked the FDA’s approval of Mythopristone. And it’s the federal government and one of the drug sponsors who go to the supreme court and say, You’ve gotta freeze that rule in while you let this case play out. Charlie, we’ve always had emergencies. But what really shifted starting about six years ago?
  • Speaker 2
    0:15:01

    Is the court used to not step into them that often at all. Most of the ones the court stepped into. Were eleventh hour death penalty disputes about stays of execution. And when the court stepped in you didn’t often see the justices dividing ideologically. What has shifted since twenty seventeen is the court is stepping in just in absolute terms more often.
  • Speaker 2
    0:15:26

    In, so granting emergency relief more often than ever before. The cases in which it’s doing it are not one off disputes about whether Texas can execute, you know, John Doe. But rather they are statewide or national disputes about whether particular policies. Will or will not be allowed to be in effect from Trump immigration policies to state COVID mitigation measures You mentioned the Texas abortion ban. These rooms obviously have far broader effects.
  • Speaker 2
    0:15:56

    And then the two things that really, I think tie home why this has become such a problem. The first is as you say that if you look at the cases in the aggregate, you see some glaring inconsistencies where instead of neutral principles, for example, the federal government’s entitled to deference in immigration law, or we’re gonna be especially skeptical of state COVID mitigation measures. The better predictor of when the court intervenes and when it doesn’t is the partisan valence of the case. That’s what Kagan meant, which said inconsistent. And, Charlie, this is I think the hardest part for non lawyers, but also the part that that drives home the real problem.
  • Speaker 2
    0:16:34

    For the very first time, the court is treating these unsides unexplained orders in at least some cases as precedents. That lower courts are bound to follow that the court has yelled at lower courts for not following, which gets us back to where we started, which is how is the court supposed to be able to make these kinds of rulings that have massive impact on the ground that are precedence legally for lower courts and yet have no principle of justification. Like that’s what we’ve seen in the last five or six years that really compelled me to write the book.
  • Speaker 1
    0:17:06

    Hey, folks. This is Charlie Sykes, host of the Bulwark podcast. We created the bulwark to provide a platform for pro democracy voices on the center right and the center left. For people who are tired of tribalism and who value truth and vigorous, yet civil debate about politics and a lot more. And every day, we remind you folks.
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    0:17:25

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  • Speaker 1
    0:18:30

    Okay. So what happened in twenty seventeen? What explains a shift this fundamental in the court?
  • Speaker 2
    0:18:37

    So, you know, I I think it wasn’t any one thing. I think it was a slow build of a series of sort of marginally related developments. So the first is I actually think that the appetite for this was already there on the court even before twenty seventeen. Folks might remember that the Obama era clean power plan was blocked by an unsigned unexplained order by a five four Supreme Court right before Justice Scalia died. That I think was a harbinger even though it was at the time I think viewed as a one off.
  • Speaker 2
    0:19:07

    What changes to make this pattern more visible in twenty seventeen is all of a sudden you have a flurry of cases. Where the Trump administration starts bringing emergency applications to the court to a degree and with greater frequency, than any justice department ever had before. So across the Obama and George w Bush administrations, two different two term presidencies, the Justice Department goes to the Supreme Court for this kind of relief eight times in sixteen years. And in four years, Trump goes forty one times. So I I think Charlie Sykes it’s the sort of the conditions we’re already maybe there, but now the cases are too.
  • Speaker 2
    0:19:44

    And then I think this pattern only accelerates. When Justice Kavanaugh replaces Justice Kennedy in twenty eighteen, and then when Justice Barrett replaces Justice Ginsburg in twenty twenty. So it’s sort of subtle shifts in procedure and doctrinal understandings accelerated by a flurry of new applications. And then it’s accelerated further by two pretty significant shifts in the court’s composition.
  • Speaker 1
    0:20:08

    No. I thought it was interesting when you were laying these numbers, you mentioned, you know, the Trump administration sought emergency relief from the court forty one times and the justices issued twenty eight orders out of those petitions. And of those twenty eight orders that the pattern was allowed the government to enforce policies that had been thrown out every other lower court, you know, for example, as you mentioned, you know, the the immigration order to go ahead or they were freezing a COVID restriction. And In these cases, the court issues the orders without providing any rationale, any vote count, or identifying who wrote the court’s rulings. I mean, somebody had to make a decision at some point that this is the way we’re going to go.
  • Speaker 1
    0:20:48

    And the reason I I started off by asking you about Alito’s complaint It feels as if he’s got some fingerprints and some ownership on this new style to say, hey, guys, we can do this. You know? We don’t have to sit around like, you know, trade opinions and come up with arguments Alido strikes me as a guy who’s pretty result oriented. And so that when Kagan is talking about the inconsistency in the logic, I kind of feel she’s talking about him. Am I making this up?
  • Speaker 1
    0:21:11

    And
  • Speaker 2
    0:21:12

    So I don’t think you’re making it up. I will say that I think one, it’s very possible that as this became more common. Charlie Sykes in mind, this used to be something they only did a couple times a year. And so there was no familiarity with it. Right?
  • Speaker 2
    0:21:24

    And so as it becomes more common, in twenty seventeen and twenty eighteen. Yeah. I can imagine that a couple of the justices were like, oh, this is actually much easier. Yeah. We don’t have to explain it.
  • Speaker 2
    0:21:33

    Great.
  • Speaker 1
    0:21:34

    No fuss, no Musk, No arguments.
  • Speaker 2
    0:21:35

    But to be slightly more defensive of the court. Yeah. I also think that the real problem and I try to sort of make this argument in chapter three of about the death penalty. And then part of what happens is that a lot of these bad behavioral shifts had already happened. But they had happened in the, you know, absolutely unique, you know, dadaist painting of the death penalty.
  • Speaker 2
    0:22:00

    Where everyone is conditioned to assume that the rules are different, and that everything about the cases are different. So it’s in the early nineteen eighties, Charlie. Right? That the court starts handling more and more of these emergency applications as a full court as opposed to with individual justices. Right?
  • Speaker 2
    0:22:17

    It’s in the early nineteen eighties where the court abandons the tradition of having oral argument on divisive emergency applications. It’s in the early it is the court sort of hues to this idea that we’re not gonna explain ourselves in cases even where we’re granted an emergency relief. And that had happened long before Samuel Alito was on the Supreme Court. It’s just that it had been over there where no one other than, you know, death penalty lawyers was paying attention, you ask anyone who clerked on the Supreme Court in the nineteen eighties, nineties, or two thousands. Like, what was the shadow docket?
  • Speaker 2
    0:22:48

    They’ll say it was the death penalty. And so I think part of what happens is that from at least some of the justice’s perspective, it didn’t feel unnatural. To apply the same approach to sort of to borrow the pathologies of the death docket when Trump comes along with all these new novel requests. And I think if there’s a sin here, right? It’s sort of not taking a beat and not sort of taking a breath and saying wait a second is this really a shift we want to endorse.
  • Speaker 2
    0:23:18

    So that by the time we get into twenty nineteen and twenty twenty and twenty twenty, you get the flood of COVID inspired cases. They really have sort of dug themselves into much deeper hole than I think they ever might have consciously chosen to.
  • Speaker 1
    0:23:30

    And this is why it’s relevant to this whole debate about delegitimizing the court because, you know, if the court is relying on people’s respect and and good feelings for its reasoning and its and its legitimacy, then it would want to provide a rationale It would want to identify who wrote it. So, I mean, clearly, there’s a price to be paid. Okay. So you mentioned COVID. Let’s get into the specifics here.
  • Speaker 1
    0:23:52

    How the shadow dock Bulwark during COVID. In the religious liberty challenges to blue state COVID restrictions, a court very aggressively used the shadow dock I mean, it repeatedly intervened. This was one of the moments where they really ramped it up. Right? So what did they do during COVID?
  • Speaker 2
    0:24:09

    Yeah. And and it’s worth stressing. I mean, you can actually see the moment where the dam breaks and it’s when Justice Barrett is appointed. But when Ginsburg is still on the court, There are a couple of cases that get to the court in the summer of twenty twenty, where the court denies relief five to four. And she says as Roberts joins four Democratic appointees.
  • Speaker 2
    0:24:27

    And he even writes and says, I’m kind of nervous about what these states are doing. But guys, it’s a public health emergency. Like we should defer a little bit. As soon as justice Barrett comes on the court, her very, very first public vote is, you know, four minutes before midnight, the Wednesday before thanks good then. To throw out New York’s COVID based restrictions on religious services.
  • Speaker 2
    0:24:49

    Starting this remarkable pattern over the course of five or six months, the court just keeps blocking COVID restrictions in New York and California and New
  • Speaker 1
    0:24:58

    Jersey and Colorado and almost
  • Speaker 2
    0:24:58

    never explained in itself. And, you know, Charlie, what’s remarkable about this is that when you peel back the layers, what’s really going on in the COVID cases, and the court finally admits this in April. When they finally write a majority opinion in a case called Tandon versus Newsom, what we get is a new principle of free exercise jurisprudence. Basically that the conservative justices wanted to strike down these state COVID restrictions but needed to change the law to do it. Whatever we might think of change in precedent and of the court shifting its doctrine in the abstract, The shadow doc is not where that’s supposed to happen.
  • Speaker 2
    0:25:39

    And indeed, the relief the court kept granting in these cases, so called an emergency writ of injunction. Was only supposed to be available if the right at issue was quote, indisputably clear. And here we have the court literally making a new law. And chastising lower courts for not anticipating that it was making new law in a context in which it’s not allowed to make new law. So that’s where I think we really start to run off the rails.
  • Speaker 2
    0:26:05

    And Charlie, this is all happening at the same time
  • Speaker 1
    0:26:07

    — Yeah. —
  • Speaker 2
    0:26:08

    as the court has cases on its merit stock through the normal procedure that are actually asking the justices to take the same steps and to make the same shift in free exercise jurisprudence, And they’re doing it on the shadow docket instead.
  • Speaker 1
    0:26:21

    I thought this was one of the most striking parts of the book because, again, I am not a lawyer, but I I think instinctively, I was sympathetic to some of these religious liberty challenges to the Blue State Court restrictions. I mean, I like the idea of having an expansive role. But as you point out, What the court was doing was they were changing the meaning of the free exercise clause of the first amendment with no oral arguments, no friend of the court briefs at all. And that is kind of breathtaking. That is a change that if you’re going to do this, if you’re gonna take a step this monumental, which by the way reflects, I think, their deeply held beliefs know, they certainly can express their rationale.
  • Speaker 1
    0:26:57

    There’s no reason for them not to do it, but they chose not to do it. These are principles that I think that Court is willing to embrace. It’s willing to enunciate. It’s willing to explain, and yet they did not do that.
  • Speaker 2
    0:27:09

    And then the question is why?
  • Speaker 1
    0:27:10

    Yeah. Okay. Why?
  • Speaker 2
    0:27:12

    Right. And I don’t know. Yeah. But like this is why I mean, to sort of step back a bit, right, from the individual cases, this is why I think we’ve learned so much and we gain so much from looking at these cases in the aggregate. From putting together the cases into sets and pools of cases as opposed to one decision followed by another.
  • Speaker 2
    0:27:32

    And this is why I think just sort of to to make the pedagogical point, it’s so important to look at the court holistically because if you look Charlie at any one of these COVID cases, you might actually say, yeah, you know, California went a little bit too far or New York’s restrictions were a little bit too vague. I mean, that’s fine. But it’s in the pattern of the decisions that you actually start to see behavior that if not intentional on the part of the conservative justices certainly appears to be willful.
  • Speaker 1
    0:27:58

    And also, you made the point which I thought was very, very powerful that by not explaining the rationale behind them, these court orders, and I think you used the word most perniciously, tended to appear to favor Republicans over Democrat. So by not enunciating the principle, it looked like we are just favoring the red states over the blue states or we’re punishing the blue states. So it looked nakedly partisan in a way that it might not have had they laid out the the constitutional reasoning behind and the new standard they were applying to the free exercise clause.
  • Speaker 2
    0:28:30

    And this goes back Charlie Sykes your point and your question about legitimacy. Right? I mean, the best thing that can be said about lengthy decisions the Supreme Court typically writes accompanying its judgments is that those decisions are the insolation that the court and the justices have against charges that they’re just politicians and robes. Right? That we don’t have to agree with their principles Right?
  • Speaker 2
    0:28:54

    But we’re supposed to agree that they are principles. Right. And when there are no principles, it really does at least look. Sharply partisan. This is why.
  • Speaker 2
    0:29:03

    I think there was so much visceral reaction to the Texas abortion rule, which comes you know, five months after the De Numa of these COVID cases because we had just seen the same five justices showing no compunction about intervening over and over and over again to articulate a new constitutional principle. And in the Texas case, these five justices wouldn’t intervene to protect an old constitutional principle. And that really is where you get the charge from Justice Kagan of inconsistency.
  • Speaker 1
    0:29:37

    Okay. So let’s talk about how this worked in these voting rights cases as well. In twenty twenty two. In Louisiana and Alabama, there was strong factual disputes about the redistricting Math, and the lower courts had ordered the states to redraw the maps. Again, shadowed docket ruling.
  • Speaker 1
    0:29:53

    US Supreme Court just tells the states, you don’t have to redraw the maps, keep them as they are. No explanation at all.
  • Speaker 2
    0:29:59

    Yeah. So by last April, I think this had become de Regur for a lot of what the court was doing in this space. What’s especially I think galling or at least revealing about the Alabama and Louisiana cases is that in the Alabama case, you have this remarkable dissenting opinion by chief justice Roberts. Right? So it’s not just the Liberals versus the conservative.
  • Speaker 2
    0:30:21

    It’s John Roberts, who I think we can say is no great friend of the voting rights
  • Speaker 1
    0:30:24

    Yes.
  • Speaker 2
    0:30:25

    You know, he wrote the massively important majority opinion for a five four court in twenty thirteen in Shelby County versus Holder. Which you know eviscerated the preclearance formula in the Voting Rights Act. But Robert’s dissent in the Alabama case and his dissent basically says, I don’t think this is an unfair paraphrase. Listen, I might actually be with you, you know, Alabama and fellow Conservatives on the underlying legal question here. Which is whether we should revisit this nineteen eighty six precedent called Thornburg versus Gingles.
  • Speaker 2
    0:30:56

    About when states have to draw what are called majority minority districts. When a population of a minority group in a state is sufficiently large and compact, that it requires special treatment. Right? And congratulations. He says, we may wanna revisit that.
  • Speaker 2
    0:31:12

    But he says, you know, an emergency application is not the place. Because the question before us is simply whether the lower courts abuse their authority and whether there will be irreparable harm, right, from leaving that ruling intact for the duration of the appeal. And he says, you know, I don’t see how a lower court can have, you know, abuse their authority by following the law and by applying the law that we have not yet changed. And I think that was telling, you know, in two respects Charlie Sykes on the merits, he’s clearly right. But second, I mean, when you have John Roberts, signaling over and over again that the conservative justices are taking procedural shortcuts to reach maybe the substantive results he himself wants.
  • Speaker 2
    0:31:52

    Right? I think that should be pretty powerful evidence that this is not just, you know, progressives trying to find any way of attacking the current court.
  • Speaker 1
    0:32:00

    Wanna come back to that in just a second, just for people to understand the relevance of our discussion right now of voting rights, you point out, you say the New York times reporting on how these shadow docket rulings on voting rights affected, somewhere between seven and ten seats in the House of Representatives, and they were all left safely Republican that’s controlled the house right there. That’s the relevance. So Justice Roberts has pulled back on this. I mean, the most recent ruling, you know, staying the the tech federal judges ruling on abortion pills. Certainly looks like a retreat from the most aggressive Zealous use of the emergency order docket.
  • Speaker 1
    0:32:34

    Do you read it that way?
  • Speaker 2
    0:32:35

    I do. And I actually think that the best evidence of that is justice Alino’s descent, which really, really goes after not just three Democratic appointed justices, but also justice Barrett, for what he claims as hypocrisy. I I actually don’t think it’s hypocritical. I think there’s a lot, you know, back to the top, there’s nuance here. I mean, I do think that, you know, the COVID cases really did, I think, suggest to the court as they look back at them that maybe they have gone too far.
  • Speaker 2
    0:33:03

    So in October of twenty twenty one about seven or eight weeks after the Texas abortion decision which as we said, like, provoked this massive public backlash. Justice Barrack writes this very cryptic concurring opinion in a case where healthcare workers in Maine had asked for emergency relief to block the COVID vaccination that the state had imposed. And the court says no over dissent from Thomas Toledo and Gorsuch. And Barrett concurs in the denial and is joined by Kavanaugh. And what she says is, hey, listen.
  • Speaker 2
    0:33:36

    Just because you have made out, you know, what we say the criteria are for emergency relief. Doesn’t mean we have to grant emergency relief. She said, we can and should exercise discretion when granting emergency locations. And that discretion is just the same discretion we have when deciding which cases to take on the merits. You know, Charlie, she didn’t say how her discretion is gonna be guided.
  • Speaker 2
    0:34:00

    Or shaped. But ever since then, I mean, even with the twenty twenty two redistricting pieces, we’ve seen less of this. We’ve seen you know, fewer grants of Mercy relief. We’ve seen more dissents from Thomas Alido and Gorsuch. And so I think maybe there was a a lesson there that actually, that public outcry and that public backlash, modified at least two of the relevant justices.
  • Speaker 1
    0:34:24

    Yes. You have Justice Roberts who’d been more overtly critical of this. And Kavanaugh and Barrett, looking like they might have blinked a little bit and chosen to be more cautious in some of these case. Is. I mean, we’re reading the tea leaves here.
  • Speaker 2
    0:34:36

    All we have are tea leaves because again no one’s writing opinions to explain themselves. But, yes, I think that’s where, you know, as we sit here in May twenty twenty three recording this. I think that’s that’s where we are. So it’s not that, you know, Shadow Doc could heal thyself. I don’t think that this is the court solving the problems.
  • Speaker 2
    0:34:52

    But I do think it’s actually an object lesson that the court both is responsive to public criticism and maybe ought to be that having more of this stuff out in the daylight actually can help to precipitate meaningful discourse that then has, you know, downstream effects on the justice’s behavior.
  • Speaker 1
    0:35:10

    It’s an old saying that the supreme court often follows election results and, you know, what you’re saying is that the public opinion does have an impact. And right now, the court is really under siege. I mean, it’s not just the polls. We have, you know, story after story about the ethical problems of Clarence Thomas. Give me your sense about the Harlan Crow first of all, what you think about the ethical issues that are being, you know, raised about Clinton Thomas, you know, Harland Crow, you know, the trips, the mother’s house, the the tuition, most recent story about Leonard Leo pushing some, you know, cash toward Jenny Thomas and saying don’t mention her name.
  • Speaker 1
    0:35:43

    How serious is this in your mind? I mean, how big an issue is this for justice Thomas? And, obviously, for the rest of the court.
  • Speaker 2
    0:35:51

    I think it depends on on what this is. I mean, right? So this could be, right, all of the Harlin Crowe stuff. This could be some of the Harlin Crow stuff. I guess Charlie Sykes me, the real problem here is not justice Thomas’ behavior.
  • Speaker 2
    0:36:05

    The real problem is the galling lack. Of any mechanism for resolving the propriety of his behavior. Right? That we are left to the court of public opinion. To litigate whether Justice Thomas did or did not cross their relevant lines.
  • Speaker 1
    0:36:19

    There is no mechanism. There is no enforcement mechanism at all.
  • Speaker 2
    0:36:23

    And in that respect, I actually think that these two conversations dovetail because to me — Yeah.
  • Speaker 1
    0:36:27

  • Speaker 2
    0:36:28

    the sort of the lack of an enforcement mechanism is a symptom of the same disease. Which is a disease of unaccountability, where the court has been left to its own devices for too long. And has been sort of left, you know, without meaningful congressional oversight, congressional accountability, congressional leverage. For too long, so that the justice is now just can’t imagine any world other than self policing. Can’t imagine any docket other than one that they control.
  • Speaker 2
    0:36:57

    And so, you know, to me, it’s it’s less about whether any of Justice Thomas’ specific behavior violates the relevant norms and rules. And more about building the case that we ought to have some conclusive way of answering that question that goes beyond just my opinion.
  • Speaker 1
    0:37:13

    If the overall theme here is the extent to which this court has become you know, began to feel that it was completely unchecked, a little bit of judicial hubris going on here. Is there a moment that’s going on right now where they are being sobered? If you’re John Roberts and you’re the chief justice and you aren’t institutionalist, and you’re watching all of these things, all of the challenge, knowing that people like you and I are having a discussion about the legitimacy of the court, is this having an effect across the board on all of this? A moment for the justice to say, okay. Maybe we ought to slow the role on some of this stuff.
  • Speaker 1
    0:37:49

    We ought to think about how this looks, how it plays, what are images, and how we respond to others. Is there any indication that there is that sobering moment happening?
  • Speaker 2
    0:38:00

    Yes. But maybe not nearly enough. I think it’s worth stressing. John Roberts is in a bit of a sticky position here. I mean, he might be chief justice, but he has no special authority.
  • Speaker 2
    0:38:11

    Or sway, right, over the other eight justices. They’ve all got the same lifetime appointments. And so I think it’s not just about what chief justice Roberts thinks. Although I think he’s quite clearly interested in and dedicated to, you know, preserve it on the court’s institutional role and institutional legitimacy, I think it’s about what the other conservative justices think. Mhmm.
  • Speaker 2
    0:38:32

    And we know, I think, what justice Alido believes from everything he’s saying publicly. I think we can guess what, you know, Justice Thomas thinks. But, you know, to me, a big part of the story is, you know, where are you know, the three Trump appointees. Right? Where are Justice’s Gorsuch and Kavanaugh and Barrett on these questions?
  • Speaker 2
    0:38:51

    And, you know, how much would they be standing in the way of reform on the inside. And that’s where again, I think maybe the shadow docket example is a helpful illustration. That Barrett and Kavanaugh are to some degree at least, you know, receptive to public critiques, to push back. But that might be a lot smaller from their perspective than accepting the kinds of reforms we would need to have a meaningful ethics accountability mechanism as well. Time will tell, but I just think, you know, it’s about them.
  • Speaker 1
    0:39:22

    Okay. So I feel the need to have a big whiteboard behind us here to schedule where the justices are. Chief justice Roberts clearly, you know, playing kind of a more centrist role on a lot of these these decisions, dissenting on some of these cases. Kavanaugh and Barrett, seeming to have blinked a little bit, more open to this sort of thing. So do you have sort of a chart of the six where you’d put Robert’s over here on one side.
  • Speaker 1
    0:39:48

    You have Elito and Clarence Thomas over here on the other side. You have Kavanaugh and Barrett, kind of leaning and Gorsuch has been lining up with Thomas and Elito. There appear to be at least the formations of different approaches within that caucus of six.
  • Speaker 2
    0:40:06

    I think that’s right. And I think the, you know, Steve Masey who writes beautifully about the Supreme Court for The Economist. Got in a little bit of trouble about two years ago because he wrote a piece called the three three three court, which, you know, basically, sort of suggested we should think court is having three troikas. Right? The sort of the three Democratic appointees.
  • Speaker 2
    0:40:24

    At one end, Thomas Alido and Corsage at the other and the chief Kavanaugh and Barrett in the middle. I understand why folks were critical of Steve for writing on that piece and for framing things that way because it moves the Overton window a lot when The middle of the court is those three justices, but it’s descriptively accurate Charlie Sykes I think it’s been reflected in the shadow docket as much as it has been on the merits docket. Yeah. And my sense is it’s also ultimately what’s going to decide how receptive and responsive the court is to any of the push for ethics reforms.
  • Speaker 1
    0:40:55

    So what is the fallout from DOBs? First, let me ask you this. Were you surprised by the sweeping nature of the DOBs decision?
  • Speaker 2
    0:41:03

    I will say I was not both going into oral argument and especially after the oral argument. I mean, the the oral argument and dobbs had this quality of sort of how do we write the opinion as opposed to what should we decide. But I also think that like, you know, gosh, when you think of why there’s been such an effort to push nominees, especially from Republican presidents so far to the right. You know, public enemy number one was Roe. And it was hard for me to imagine a universe in which that wasn’t gonna come due.
  • Speaker 2
    0:41:35

    Right? And that bill I mean, you know, if you keep in mind, justice Alito, was not the first nominee for the so con receipt. I mean, he was the third. John Roberts was the first. He gets sort of you know, moved over to the center seat when Renquist dies, Harriet Myers was the second.
  • Speaker 2
    0:41:51

    And — Yeah. — you know, her nomination was killed by conservatives. Because they weren’t sufficiently convinced that she was gonna be a locked vote for lots of demos, but especially over a long row. So I wasn’t surprised by dobbs. I was surprised by maybe some of the ways the dobbs opinion was configured, the sort of the the self evident sort of vibe to the Alido opinion, the sneering that, you know, that comes through in some of the opinion.
  • Speaker 2
    0:42:19

    The actual result I think was not, you know, hard to look at this court and not see that come in.
  • Speaker 1
    0:42:23

    We’re nearing the end of the term and make big decisions are going to come down in the next month or so. What should we be looking for to determine whether this court is going, whether or not it is still, you know, pedal to the metal, you know, ramming speed moving to the right or whether or not it’s decided to be, you know, take a more cautious approach. What are the cases that we ought to be looking at, that you’re looking at.
  • Speaker 2
    0:42:45

    Nah, I wish more people got that animal house reference. To me, it’s not the cases Charlie Sykes much as it’s the lineups. Right? So you know, I think we know what’s gonna happen with affirmative action. Right?
  • Speaker 2
    0:42:55

    I think the student loan cases are the conservatives really gonna endorse broad theories of standing that they’ve spent the last fifty years rejected. There’s a sleeper case called US versus Texas. That’s not just about the underlying policy, which is the Biden administration’s immigration enforcement priorities. It’s also more generally about like, hey, are we comfortable with states being the, you know, sort of the the challenges in chief of all federal policies. And, you know, I guess I could tell you with some degree of confidence how I think at least three or four of the conservative.
  • Speaker 2
    0:43:26

    Justice are gonna vote in almost all of those cases. Same with the, you know, the three more liberal justices. I’m gonna be fascinated to see if what we were just talking about, the three three three court shows up at all. And if it shows up, where does it show up and why?
  • Speaker 1
    0:43:41

    The book is The Shadow Docket How the Supreme Court uses stealth rulings to amass power and undermine the Republic It was out earlier this week. Steve Volotic is a professor at the University of Texas School of law Steve, thank you so much. This has been absolutely fascinating.
  • Speaker 2
    0:43:56

    Oh, thanks Charlie. It’s great to be with you.
  • Speaker 1
    0:43:58

    And thank you all for listening to today’s Bulwark podcast. I’m Charlie Sykes. We will be back tomorrow and we’ll do this all over again. Volebrook podcast is produced by Katie Cooper, and engineered and edited by Jason Brown. Dissecting politics with exclusive interviews, commentary, and humor, useful idiots with Katie How and Aaron Mate.
  • Speaker 5
    0:44:32

    I really don’t like sharks, and I think we live in a very shark agandistic world. Quote, one thing to keep in mind is sharks who are not out there trying to eat surfers and swimmers. They’d much rather eat fish, but in many cases, they mistake us for their actual When they do bite, they usually move on. That’s supposed to make us feel better?
  • Speaker 1
    0:44:49

    Beautiful idiots, wherever you listen.
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