The Supreme Court’s “shadow docket”—cases in which the Court issues emergency orders and summary decisions without oral argument—has been subject to growing scrutiny. Supreme Court Reporter Adam Liptak of The New York Times and legal expert Jennifer Mascott of the George Mason University Antonin Scalia Law School join Stephen Vladeck of The University of Texas School of Law for a conversation on Vladeck’s new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, exploring the history and role of the shadow docket and the current debates surrounding the Court’s emergency rulings. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Participants
Adam Liptak is a Supreme Court reporter for The New York Times and writes the weekly column “Sidebar.” He practiced law for 14 years before joining The New York Times and has taught courses on the Supreme Court and the First Amendment at several law schools, including Yale and the University of Chicago. He is the author of To Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage.
Jennifer Mascott is assistant professor of law and co-executive director of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University. She has testified in the U.S. Senate and U.S. House on Supreme Court jurisdiction and during the confirmation hearings for two U.S. Supreme Court justices. Mascott also served as Associate Deputy Attorney General and Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice.
Stephen Vladeck is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. He has argued before the Supreme Court and has served as CNN’s Supreme Court analyst since 2013. Vladeck is the author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
- Stephen Vladeck, “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket,” Testimony before the Senate Judiciary Committee
- National Constitution Center, “The Supreme Court’s ‘Shadow Docket’,” We the People podcast
- Jennifer Mascott, “Jurisdiction and the Supreme Court’s Orders Docket,” George Mason Legal Studies Research Paper
- Adam Liptak, “Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,” The New York Times
- Does v. Mills (2021)
- Whole Women’s Health v. Jackson (2021)
- Dissenting Opinion of Chief Justice Roberts in Whole Women's Health v. Jackson
- Tandon v. Newsom (2021)
- Biden v. Texas (2022)
- Calcutt v. Federal Deposit Insurance Corp. (2023)
- Thornburg v. Gingles (1986)
- Danco Laboratories v. Alliance for Hippocratic Medicine
- Dissent of Justice Alito in the Application of Stay for Danco Laboratories v. Alliance for Hippocratic Medicine
- Judges Act of 1925
- Presidential Commission on the Supreme Court, Draft Final Report
Excerpt on the Supreme Court deciding divisive issues and changing the law:
Steve Vladeck: The, problem is the one that I think Adam puts his finger on, which is when the 55 cases are the 55 hot button divisive issues the justices want, all that does is it reinforces the worst perceptions of the court and not the best perceptions of the court, right? That, when the court is actually doing technical lawyering, I think the justices really are at their best.
And I think one of the problems of the shadow docket is that that's the opposite of the spectrum where there's no technical lawyering and it's just a quick up or down vote on whether this policy can go into effect and this one can't be. And that's where I think we're not all going to agree on what the right reforms are, but I think we might all agree that there's opportunities for movement and for making the relationship better that don't all turn on changing who's on the court, that don't turn on altering the composition of the court as I think so many progressives are clamoring for. And that's the conversation I hope the book helps to precipitate.
Jeffrey Rosen:And you do indeed emphasize that you're offering these proposals in the hope of increasing the court's legitimacy rather than thwarting it. Jen, Steve argues that justices of both, of all perspectives, but certainly the current majority is impatient and is reaching out to decide questions because it wants to change the law. And this mirrors the critique that Justice Kagan and Justice Sotomayor have talked about the impatient court and he's claiming that in that sense, substance is following procedure. What's your thought?
Jennifer Mascott: I mean, I don't think so. I agree with the point that if you look at the small number of cases, the court clearly is not being as aggressive as it could be in taking on many, many matters. It has had a lot of big matters kicked to it. Sometimes it's gone many terms in a row without taking on the big questions. Some of us in the administrative law space, which is a little bit different from some of what we're talking about here, have wanted the court to reexamine deference doctrines like Chevron for a long time. And I have to say, they've possibly taken up the question next term, and I just have a feeling that again, we're going to see the court not take it head on.
But, you know, I don't know. Maybe it'll require some rewriting of the ad-law case book I've just joined after, after the end of next term, we'll see. But look, this is a very legitimate, highly honored professional institution that we should all be really grateful for, I think, in American society. For decades and decades and decades, the number of justices has been stable. President Biden put in place a commission of many, dozens of experts, and they did really not coalesce around one strong majority sense that there's a particular reform that really must happen that everybody agreed we'd be better off with.
And to the point about unanimity and controversy, and in at least the past 10 terms leading up to 2022, about 35% of the court's judgments, merits cases had been unanimous. And so I think that's Adam's point a little bit before, that there are a number of cases sometimes which we don't necessarily captivate our imagination as much where the court actually unanimously agrees. And so I'm grateful for what the justices are doing and grateful for this chance to talk with all of you about how we can all be better students and more attentive to figuring out what's happening in the nation's highest court.
Jeffrey Rosen: Very well said. Adam, I think we'll give the last word to you in this wonderful and thoughtful and wide-ranging discussion. What did you learn from Steve's book, The Shadow Docket, about whether or not the Supreme Court is, as his subtitle said, using stealth rulings to amass power and undermine the republic?
Adam Liptak: So Steve's book is fantastic. People should go out and buy it and read it. As to the subtitle, there's little doubt in my mind that they're using this procedure to amass power, and I will not pass on the question of whether they're destroying the republic in the process.
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