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 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. Host Jeffrey Rosen moderates.
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Today’s episode was produced by Tanaya Tauber, John Guerra, Lana Ulrich, Bill Pollock, and Sam Desai. It was engineered by Bill Pollock. Research was provided by Lana Ulrich and Sam Desai.
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 both the U.S. House and Senate 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
- 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
- National Constitution Center, “The Supreme Court’s ‘Shadow Docket’,” We the People podcast
- Does v. Mills (2021)
- Whole Women’s Health v. Jackson (2021)
- Tandon v. Newsom (2021)
- Biden v. Texas (2022)
- Calcutt v. Federal Deposit Insurance Corp. (2023)
- Thornburg v. Gingles (1986)
- Judges Act of 1925
- Draft Final Report, Presidential Commission on the Supreme Court
Excerpt from transcript on the amount of injunctions the current Supreme Court issues:
Steve Vladeck: So just to tie the loop together, right? What Jen's talking about is an injunction pending appeal, the most extraordinary form of emergency relief. And Jen is rightly explaining why the justices have historically been very reluctant to issue injunctions pending appeal, because unlike a stay, an injunction pending appeal is reaching out to stop the state from enforcing the law directly. And so, again, in the abstract, I think that's a perfectly coherent defense of the court's non-intervention in the SB8 case. The problem is that, whereas the court had only issued four injunctions pending appeal in Chief Justice Roberts first 15 years on the bench from 2005 to 2000, at the end of 2019, in Justice Barrett's first six months on the court, the court issued six.
And so it's just against that backdrop, where the court was doing exactly what Jen's criticizing, to block California COVID restrictions and New York COVID restrictions, the fact that all of the sudden they found their hands tied because the partisan valence of the dispute was flipped. That's the problem I'm trying to get at.
Jennifer Mascott: And I agree, and I want to, I'm sure Adam has things to say too. I look again just now, I'm switching hats to the executive branch. It was an extraordinary time. My recollection, partly because I was at DOJ at the time, is that Justice Barrett was confirmed about five months into the pandemic, and there continued to be efforts to try to deal with it. On the executive branch side, there were lots of things happening. The Trump administration was moving rapidly to try to get the economy to be producing masks, to be producing vaccines, to be trying to figure out how to keep people safe. And there were all kinds of extraordinary uses of the Defense Production Act and other healthcare emergency authorities and all sorts of efforts to try to orient the economy on the political branch side.
And so I guess part of what I'm saying is, and I'd be curious, and actually this would be an opportunity for another book even at the five-year mark. I wonder if we'll look back and see if these justices are issuing or stepping injunction pending appeal with the same rate as Steve is citing in those few months that were Justice Barrett's first months on the court. Because again, it's just very hard with the pandemic. I think there were a lot of sui generis and efforts that were being taken at the state level and at the federal level. And I would just have to imagine that a lot of that was impacting the need for the court to be weighing in rapid order.
Jeffrey Rosen: I'm going to ask Justice Liptak to adjudicate this really important discussion, both about the increase in the numbers of injunctions pending appeal and the increase in the overall grants of emergency relief. Steve says that there were about six averaging a year in Justice Roberts' first terms and 20 in OT 2020. And also, Adam, Steve claims that the Trump administration placed a big role here, that in four years Trump’s solicitor general sought emergency relief from the Supreme Court a total of 41 times, a more than 20-fold increase over Bush and Obama's SGs combined. What do you make of all of these numbers?
Adam Liptak: So I don't think there's a dispute in general, correct me if I'm wrong, that there has been an increase in this activity. The question is, is it problematic? What gave rise to it? And the more conservative argument is typically that, in the Trump era, lots of district court judges around the nation shut down government programs through nationwide injunctions, and that caused the Trump administration to go to the court. And it was knocking on an open door because this court was sympathetic to the Trump administration's policy goals and solicitor generals of both parties said they would've done the same thing in that same dynamic. Now, the argument gets refined a little bit because, and Steve will give me the actual numbers, but maybe a third of these applications involved nationwide injunctions and lots of them came up in other contexts.
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