Last week, Supreme Court Justice Samuel A. Alito gave a speech responding to criticism of the Supreme Court’s emergency docket levied by, among others, his fellow Justices Elena Kagan and Stephen Breyer. On this week’s episode, we explain what types of cases comprise the Court’s the emergency docket—sometimes referred to as the “shadow docket,” a term coined by scholar Will Baude—and whether the Court’s approach to emergency decision-making has changed in recent years, and why. Host Jeffrey Rosen is joined by law professors Jennifer Mascott of George Mason Law School and Stephen Vladeck of the University of Texas Law School, both of whom testified before the Senate Judiciary Committee at its hearing about the shadow docket this week. They illuminate current debates surrounding the shadow docket and detail some recent decisions that have drawn increased scrutiny to the Court’s emergency rulings, including in COVID-related cases, the Texas abortion case, and in challenges to some of President Trump’s immigration policies.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Sam Desai and Lana Ulrich.
PARTICIPANTS
Jennifer Mascott is an 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. She recently testified before the Senate Judiciary Committee about the Supreme Court’s shadow docket. Professor Mascott previously served as Deputy Assistant Attorney General in the Office of Legal Counsel within the U.S. Department of Justice and, in May 2020, she was appointed Associate Deputy Attorney General where she served in that position until returning to Scalia Law School in 2021.
Stephen I. Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas Law School. He is the co-host of the “National Security Law Podcast” and is CNN’s lead Supreme Court analyst. He also testified before the Senate Judiciary Committee on the shadow docket, and is currently working on a book on the rise of the shadow docket, to be published Spring 2023. Professor Vladeck has argued multiple cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal civilian and military courts.
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
- Will Baude, "Foreword: The Supreme Court's Shadow Docket"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to, We the People weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Last week, Justice Alito delivered a speech defending the Supreme Court's so called shadow docket, where it issues emergency orders in summary opinions. But in our recent dissent in the Texas abortion case, Justice Kagan wrote, "The majority's decision is emblematic of too much of this Court's shadow docket decision making, which every day becomes more unreasoned inconsistent and impossible to defend."
Here to illuminate the debate around the shadow docket are two of America's leading Supreme Court experts and two of our greatest experts on the shadow docket. Steve Vladeck, holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School. He's the co-host of the National Security Law podcast and as CNN's lead Supreme Court analyst. He also testified before the Senate Judiciary Committee on the shadow docket, and is currently working on a book, on the rise of the shadow docket to be published in spring 2023. Steve, congrats on the book and welcome to, We the People.
[00:01:18] Steve Vladeck: Thanks, Jeff. Great to be back with you.
[00:01:20] Jeffrey Rosen: And Jennifer Mascott is an Assistant Professor of Law and Co-Executive Director of The C. Boyden Gray Center for the Study of the, the Administrative State at the Antonin Scalia Law School. She recently testified before the Senate Judiciary Committee about the Supreme Court's shadow docket as well. Jen, it's wonderful to have you back on the show.
[00:01:38] Jennifer Mascott: Thanks so much for having me here again. I think the last time I was on was right before I went on leave to actually be in the federal government working on some of the litigation that we're gonna talk about today.
[00:01:48] Jeffrey Rosen: Well, it is great to have you both back. And I think we should begin with a very basic question, Steve, what is the shadow docket?
[00:01:58] Steve Vladeck: Yeah, I mean I think contrary to how it has been described by, among other people, Ted Cruz and Justice Alito, you know, the shadow docket was, is a term that was coined in 2015, by Chicago Professor Will Baude to describe something that's been on the Supreme Court's docket forever, which is orders. Nothing fancier, nothing secretive, just orders. And Jeff, Will used the term shadow because of their obscurity. Not many of us spend a lot of time focusing on the orders the Supreme Court issues as opposed to the big fancy merits decisions about which some of the, of your episodes are devoted to.
But what Will was responding to and what I've picked up on a bit and what I think has sort of motivated the current interest is the perception that the court is doing more stuff through these orders, which are typically unsigned, which are usually unexplained than it used to. That these orders have gone from entirely procedural sort of docket management types of orders or sort of one off questions about say executions of prisoners based on death sentences, to whether nationwide injunctions will be allowed to stay in effect, to whether statewide COVID mitigation policies will be allowed to stay into effect, to whether controversial abortion laws will be allowed to go into effect.
And those rulings, of course, have a much larger impact. The justices themselves are starting to treat them as precedential. And they're not necessarily providing all that much in the way of explanation for why they're reaching these decisions. So, you know, the shadow docket itself has been around forever. The moderate interest in it, the recent interest in it, I think is a reaction to at least the perception. And I would argue the reality that in the last four or five years, the court has done a lot more stuff, and a lot more stuff that impacts all of us than it had previously in the same context.
[00:03:45] Jeffrey Rosen: Thank you for that helpful definition. As you note and as you noted in your congressional testimony, there are historic examples of shadow docket rulings, including Justice William O. Douglas stay at the execution of the Rosenbergs in 1953. But the use of the shadow docket as opposed to the merits docket has increased especially since 2017. We'll talk about why that was in a moment. But I wanna ask you, Jennifer, on how you would define the shadow docket?
[00:04:13] Jennifer Mascott: Absolutely. Well, on a lot of this, Steve and I are in agreement that I mean, obviously we both agree that the phrase shadow docket came into vogue when Will Baude, it seems Chicago Law Professor first used the phrase in a catchy law review article in,in 2015, and what it describes, as Steve mentioned, is the orders docket for the Supreme Court, the type of docket that all courts have the Supreme Courts had it for decades. And when I was there as a law clerk in 2008, and 2009, of course, the justices often had to would consider petitions from prisoners facing executions decisions as to whether to deny cert petitions for full review of cases has happened on the orders docket.
And as Steve mentioned when parties bring petitions before the court, sometimes for emergency rulings, those also happen on the orders docket. But you know, the, the justices are really responding to cases in the form that they're brought to them. So as Steve mentioned, the justices of hearing about 60 to 70, it used to be more cases fully on the merits each year. The parties frequently with the federal government sometimes states other litigants will bring to the court request for emergency relief or other matters on the court's orders docket. And so the court deals with those cases in the form in which it's brought to them.
And so, that led to a lot of these rulings which are public, they're on the court website. Sometimes just different justices will issue shorter opinions explaining their ruling. But it's all in a preliminary stage before reaching cases fully on the merits. And the justices have room to then more fully that some of the issues raised before them in subsequent cases.
[00:05:46] Jeffrey Rosen: Thank you so much for that. Steve, in your congressional testimony, you very helpfully summed up the statistics about the shadow docket, you argued that it's been on the rise since 2017. And you offered six changes in how the Supreme Court has increasingly used the shadow docket since 2017. Tell us about how the shadow docket has been on the rise since 2017.
[00:06:13] Steve Vladeck: Yeah, I mean, Jeff, it really is the confluence of a series of overlapping factors. And you know, Jen, and I might disagree a bit about the causes. But the, the difference in usage is a competition of increased volume. So the court is granting more applications for emergency relief than ever before. 23rd of the term that ended on Sunday was the most that I've ever found from a simple term. 19th last term, after an average of about 5.7, during the first 10 years of Chief Justice Robert's tenure. So that by itself is a shift.
These grants Jeff more often than ever before are having effects far beyond the parties to the cases. So as opposed to a stay of execution, which does not dramatically change any legal principle, it does not dramatically affect the applicability of a legal policy that applies to all of us. More and more of these grants are either stay in district court injunctions of federal or state policies, and thereby allowing those policies to go back into effect, pending appeal, or reaching out and freezing state policies that lower courts had not blocked.
So another data point during the court's most recent term, it issued seven emergency injunctions where the justices themselves reached out to block state COVID restrictions during the prior 15 years of chief Justice Roberts tenure issued a total of four. So there's this uptick not just in the total number of grants of emergency relief, and not just in the impact of these grants. But also the wire of the court is now telling lower courts that these grants have precedential effect.
So we're seeing contempt where the court is remanded with disputes to lower courts for consideration in light of an intervening unsigned order. On the shadow docket in the Tandon case, a case about California's restrictions on in home gatherings that the court decided on the shadow docket in April, the court went out of its way to chastise the ninth circuit for not following four prior decisions the court had issued in California COVID cases, none of which had a majority opinion, all of which were orders.
And so, you know, Jeff, to me, it's those three things, especially in confluence, more grants, more grants that have systemic effects, and grants that the court is telling lower courts and everybody else are entitled to precedential effect without much in the way of explanation. No one could have reasonably expected the justices to write lengthy opinions 10,15 years ago, when they were granted a stay of execution for one prisoner on let's say, death row in Missouri.
But when the justices are blocking California's restrictions on in home gatherings or allowing President Trump's controversial immigration policies to go into effect for two or three years. I think that's where the pushback has come in for why providing one sentence of analysis isn't enough.
[00:08:57] Jeffrey Rosen: Jen, what are your thoughts about how the shadow docket has increased? We'll turn to the, why question next, but on the how question, do you agree with Steve that there are more of these decisions more with shadow docket effects and more that have become publicly divisive? In his testimony, he also noted that as the shadow docket grows in terms of divisiveness concerns about stealth votes that can't be determined become more pronounced, and that there are new and unusual forms of relief. Do you agree or disagree with, with that how account?
[00:09:31] Jennifer Mascott: So I disagree with the framing. I mean, Steve has done yeoman's work certainly in, in going through and cataloging the various cases. But I mean, I, you know, from having been there and clerked and seeing the justices ruling in the care that they take with the law. My sense would be, and I think the justices all have, all have said this and feel this that they're approaching even these cases very judiciously trying to apply the rule of law.
And I think there are, you know, attorneys even from different jurisprudential perspectives perhaps than my own that might agree. Tom Goldstein, co-founder of the SCOTUSblog was recently talking about the shadow docket, and also mentioned that really, it's an orders docket. The justices are being brought, these cases it's unclear that they're reaching determinations in these matters that are different than would later happen on the merits.
And I think even Professor Will Baude himself, you know, it's hard to know, is it better for the justices in issuing these orders sometimes to not necessarily have their vote recorded or to write lengthy or opinions, I think, Baude initial articles suggested that part of the problem might be a lack of transparency. And maybe we wanted each vote recorded. And in just the last month in a podcast, he suggested perhaps, maybe he was starting to reach the other conclusion, because if we see these orders considerations as really preliminary, then perhaps not necessarily listing every single vote, and everyone gives the justices the freedom later to think more and perhaps reconsider or, or reevaluate.
But just another thing on framing. And, you know, Steve acknowledges in his comments, obviously, we have had an unprecedented time of emergency in this country with the, with the COVID pandemic over the last year or two. And so of course, as Steve mentioned, some of the response is the court being brought cases that are responding to emergency measures being taken at the state level. And then Steve's research it is, it is true, the 21 injunction salts in 2017.
But Steve's testimony recently had a very helpful chart that started, that show that actually the granting of stays, the uptick started back in 2013. And I think that was coming because in the, during the Obama administration parties were realizing that they could go into federal district courts and get single judges sometimes to issue rulings and injunctions against government policies.
And so then the government was perhaps coming to the court and asking the court to step in. And so in that case, I think when we're thinking about do we want nine justices to be reviewing this extraordinary action for taking up the, taken up the district court by one judge, it almost certainly has to be the case that nine justices together as a multi member body would be able to bring more care and review than just leaving in place, sometimes these extraordinary rulings by one judge at the district level.
[00:12:13] Jeffrey Rosen: Thank you so much for that, and introducing the important question of why, what caused the rise of the shadow docket? And you said that among the factors are the increase in nationwide injunctions, the unique legal issues arising out of COVID and other factors. Steve, your congressional testimony, you point to the confluence of four other factors which I'll let you lay out. And I wanna thank you for such clear testimony, cos it's very well organized, and I have the four factors before me. Why do you think that the shadow docket has risen?
[00:12:48] Steve Vladeck: Well, I mean, Jen is right, in one sense, right, which is that, you know, the court can't go out and make cases. And so there's no doubt that there are applications coming to the court that the justices are interested in. U, you know, Justice Alito claimed in his speech at Notre Dame that they're receiving more applications, that's actually not true in the aggregate. They're clearly receiving more applications that they want to grant. And that's, you know, that's the shift that I think we're trying to figure out.
Nationwide injunctions are, I think, a very convenient boogeyman for what is explained on this trend, but it actually doesn't. I mean, Jeff, I already mentioned some of the COVID cases where the court reached out to block state restrictions. Those are not nationwide injunctions of the 41 times the Trump administration sought emergency relief from the Supreme Court in four years, compared to a total of eight times from the, the Bu-Bush and Obama administration's over 16 years. Only about half of those applications involve nationwide injunctions.
So I think part of what's going on, Jeff, is that the court itself is shifting in its approach to these cases. Jen is right that you can see the shift happened before Donald Trump becomes president, you can see the shift begin in 2012, 2013. And that's right about the time that the Chief Justice writes this very influential in chambers opinion, in a case called Maryland V. King, where I think it can fairly be read to be saying that, in general, the court is going to defer to the government more at the emergency application stage, that is going to generally believe that injunctions against government policies caused irreparable harm. And that that tilts the balance of some of this analysis in favor of the government party in most of these cases.
Jeff, you can see right the shift start to build after that. But I just, I wanna sort of, you know, clarify that the point is not just that the court is doing more of this and not explaining itself. Like, you know, one could make a coherent case as Will Baude has that we're all better off if the court only did the stuff through one sentence orders. The problem, Jeff, for me is the confluence. It's not just that this is happening more often. It's not just that the court is not explaining itself. It's that both of those things are true. And the court is treating these rulings as precedential.
And it seems to me that if that weren't true, if the court said, "Don't treat any of these orders as having precedential effect," you know, I at least would be a lot less critical of this, because I think it would look a lot more like what had historically been how the court handle these kinds of emergency applications.
[00:15:16] Jeffrey Rosen: Thanks so much for that. Jen, your response to Steve including his points that it would be better if these orders were not treated as precedential, as well as the procedural changes that he noted ranging from the fact that the court stopped formally adjourning for summer recess in the 1980s. And he argues that a majority of justice now have changed the standard for emergency relief and believe that whenever government action is enjoined by a lower court, the government is irreparably harmed.
[00:15:48] Jennifer Mascott: Sure, absolutely. Well, there's a lot there. I mean, as far as ruling on the merits in some of the emergency petitions, that, you know, it is true that in the turning case, which Steve has, has mentioned in his testimony in today dealing with religious liberty, you know, the court looked at and engage with some important issues. But also I mean, it, it engaged with similar issues on the merits and a full case in the Fulton matter dealing with the city of Philadelphia earlier this year.
So I think it is taking a look at similar and the same constitutional issues in a vetted way and having a chance to give full consideration. I mean, another change that took place that's been mentioned in some of the testimony, I think, in other proceedings, where Steve has testified, I think Professor Michael Morley mentioned change in the Supreme Court's jurisdiction in 1988, where there were fewer direct appeals coming to the Supreme Court and in, in some of the reports, and engaging with that legislation, there was acknowledgment, well, we'll still enable the Supreme Court to step in if it needs to in an expedited fashion, because it can always grant serve before judgment and do other things.
So some of the changes are in a response, I think, to alterations of the court's jurisdiction the, the Congress put into place.
And Steve, also, is mentioning, not all of the matters deal with national injunctions. That's true. Some of them have involved discovery disputes some of them ... But even the numbers, the total numbers also, sometimes particular with the Trump administration, are involving not necessarily 41 different policies, with the 41 different motions, but sometimes the same policy facing multiple challenges in the lower courts. For example, with the travel order that might account for six of the emergency decisions that Steve's referencing.
And so the same policy being challenged in multiple proceedings, the government trying to respond, and then the court also having to, having to weigh in, as far as the precedential effect. Again, I think the court is very careful to also give consideration to the same constitutional issues in full merits disputes. But in situations where an emergency order is coming up on almost precisely the same issue, like in California, where the court says, "No, you need to let this worship practice religious liberty, continue." California issues another order squelching it, you know.
The court is gonna say on similar facts, we're going to stick with, with what we, the, the ruling that we had issued the ruling that we had issued in the past and just one, one final thing. And I think this might get to the crux of why Steve and I may have different varying levels of, of concerns or thoughts or views about the court's proper role here. I mean, part of why the orders docket is becoming a bigger issue in question is because I think over the years, the American public has started to turn to the federal judiciary and the Supreme Court in general, more as the final arbiter of policy disputes and issuing fair decisions.
And so, you know, to the extent that we're concerned about these things, and we wanna keep things at the status quo, or to the extent the Supreme Court's even stepping in sometimes to stay, District Court injunctions, it's really coming from perhaps a different jurisprudential view that the policymaking should be done in the, with the elected branches. And so to the extent that at different levels, the federal court's stepping in, perhaps the Supreme Court is having to put the brakes on and say, "No, let's keep the issue with either the states or with the federal government so that it can represent the electorate's interest, rather than you know, elected officials policies being too quickly enjoined."
[00:19:15] Jeffrey Rosen: Steve Jen's, defense of the shadow docket, attributed rise to cause similar to that invoked by Justice Alito. He, Justice Alito acknowledged that the court said been issuing more of these rulings, he preferred the use of emergency docket rather than shadow docket. And he said that the media had created the impression that a dangerous cabal is deciding important issues in a novel secretive improper way in the middle of the night, hidden from public view. And he said this was a false and an inflammatory claim.
And he attributed the spike to applications from the Trump administration after lower courts blocked the programs, the pandemic cases changes to election rules, requests from prisoners fearing exposure to the virus, and restrictions on house of worship. And all these cases, he said the court had applied its usual standards. And it was ranked nonsense that the court issued its orders late at night to avoid attention. What do you make of Justice Alito's account of the causes for the rise of the shadow docket and his defense of its use?
[00:20:23] Steve Vladeck: Yeah, I mean, I think there are two things off the top to say in response. The first is yes, the, the, if you, if you describe every single category of application the Supreme Court has received in the last couple of years, you're describing the rise of the shadow docket. I don't think that's especially mind blowing here. The problem, Jeff, and this is where I'm so glad that you opened with the quote from Justice Kagan's dissent in the, in the Texas abortion case, is that these neutral principles that Jen has alluded to, that Justice Alito has insisted the court is following aren't actually reflected in the Court's decisions.
So for example, if the concern about nationwide injunctions is that it's just inappropriate for the federal government to be subject to nationwide injunctions and frustrated in its enforcement of immigration policy. How to explain the decision in August, in Biden V. Texas, in which the Supreme Court declined to stay in nationwide injunction issued by a federal district judge against President Biden's attempts to rescind MPP, the remain in Mexico policy.
If the concern is that the court shouldn't be deciding important procedural issues on the shadow docket in the first instance, which is what the majority relied upon to justify and not intervening in the Texas abortion case. How to explain the ruling last November in Roman Catholic Diocese, where the court reached out four minutes before midnight, the night before thanksgiving, to block New York restrictions on indoor religious gatherings that at that point weren't even in effect against Roman Catholic Diocese churches or the April decision that Jen referred to about the in home gathering restrictions in California, where the court made new law about the scope of the Free-Exercise Clause. Maybe it's a Free-Exercise Clause holding we like, maybe it's when we don't like, the court is not supposed to make new law in this context, is only supposed to grant relief if the rights issue are, quote, indisputably clear.
So, you know, Jeff, I think the biggest problem with the notion that this is all just the justices reacting neutrally to external stimuli that have provoked a, unusual number of meritorious applications is then why the differential treatment. And there's an easy way that the court could defend this differential treatment, the court could actually try to explain why the Roman Catholic Diocese and California cases are different from SBA, the court to try to explain why despite its aversion to nationwide injunctions throughout the Trump administration, it was willing to leave one in place, the first time the Biden administration propping in the Supreme Court.
And here we come back to why it's problematic that the court is not explaining itself, because if you have these latent inconsistencies, and if you don't have the court getting less justifications for the inconsistencies. Jeff, it leaves at least the impression that Justice Kagan described in her dissent, that these rulings are inconsistent in ways that don't smack of principle, they smack of party.
[00:23:14] Jeffrey Rosen: Jen's, you've now heard Steve make three critiques. First, that the shadow docket rulings are insufficiently explained or unexplained. Second, that they're inconsistent in how they apply the same procedural standards and ways that he testified appear to favor Republican policies or [inaudible 00:24:10] over democratic ones. And then the critique that he made before, which is that the Justice insists that these inconsistent and insufficiently explained rulings have precedential effects. And he called out the Roman Catholic Diocese decision as an example of prematurely and unnecessarily resolving unconstitutional questions. What's your response to those critiques?
[00:23:52] Jennifer Mascott: Well, I mean, to the extent that parties bring matters to the Supreme Court, I mean, the Supreme Court justices are going to need to rule either by declining to grant relief or granting relief. And so we're sort of the makers of our own fate. If we're bringing matters to them. They're going to need a rule and obviously they have views on the Constitution. They clearly believe that religious liberty in the First Amendment is something that should be protected and had concerns with some of the COVID measures perhaps not adequately pro-protecting that.
They also obviously have views on the role of the federal legislature and executive branch and carrying out different policies. And so they're going to apply those things. But to say that it's partisan, I think is, is not, is just not accurate. I mean, apparently, I mean, it seemed that President Trump, for example, in the wake of the November 2020 election desperately wanted various individuals to weigh in and take action and his own appointees declined to rule the way apparently, that he, by his own term said at different times, he would have wanted them to roll.
When I go back to Steve's very thorough and scholarly work on the Harvard Law Review in 2019. He mentions that I think the first grants of a petition have served before judgment in 2020 since maybe to 2-2004 ... I'm sorry. Yeah, in 2020 since 2004 was in the census litigation. And even there, the court ruled, yes, it did grant relief by stepping in early. But it also ultimately did not completely rule for the administration that was asking for relief, second guessing and going behind and questioning Secretary Ross's motives there.
And so it's not necessarily the case that every time the court chooses to step in, that it's necessarily even ultimately helping the party that requested the relief. We also had the court not fine for President Trump in the big DACA case with the Chief Justice not going the way of, of President Trump. And that had been a case where there have been requests for the court to step in early on. And so, and even with the Texas litigation, I mean, the Texas case prompted the, the Senate Judiciary Committee to have the recent hearing. But ironically, that was a situation where the Court declined to step in.
And I think if you look at the reasoning given by the justices there, they said there might very well and there are certainly serious constitutional questions on the merits about the Texas law. But we all know and agree that the Texas law was structured in a way where the parties who were bringing the enforcement action were private parties. And so it raised very unique questions dealing with state sovereign immunity and jurisdictional questions. And so, I think is somewhat of a sui generis matter.
And it's hard to really apply the typical procedural rules there where the court is saying, "What party would we step in?" And, and also, I think it bears noting there that it was the lower courts, actually, both the district court, in a sense, and then also the Court of Appeals issuing the stay that the Supreme Court decided not to disrupt. So sticking with the pre-litigation status, status quo.
So of course, I mean, there are many issues to unpack here. I think everybody would agree that the justices all they're, they're smart, they're fabulous lawyers, they've got worked out constitutional views that are coming through in their rulings on these. But I just think across the aisle, all nine are really trying to rule in a way that they believe is consistent with the rule of law, whether it's on the orders docket or at merits cases.
[00:27:15] Jeffrey Rosen: Steve, Jen just gave a bunch of examples of cases during the Trump administration where the court ruled against the Trump administration. What do you make of that as a counter to the argument that the shadow docket is being used in partisan ways? And, and what do you make of Justice Alito's conclusion that the catchy and sinister term shadow docket has been used to portray the court as having been captured by dangerous Cabal, that resorts to sneaky and improper methods to get its way, he said this portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.
[00:27:50] Steve Vladeck: So I think the first thing I said, I didn't realize I was so intimidating. The second thing to say, I mean, listen, yes, there are examples of emergency applications that the Trump administration or more specifically President Trump lost. But this is the same problem I had with Justice Alito speech, which is cherry picking examples that are outliers for, you know, to rebut the general proposition of the lack of explanation. The problem one more time, right, is not that there are a lot of these. And it's not that they are disrupting the status quo or not disrupting the status quo.
The promise that the court is not telling us what the difference is, between the cases where they are disrupting the status quo in favor of positions that are ostensibly identified with Republicans, and the cases where they're not disrupting the status quo in cases where that result is ostensibly identified again with Republicans. Jeff, the problem at the end of the day, is not that there are outliers. The problem is that the pattern looks distinctly partisan, and the best way the court can disabuse us of that notion is to tell us why these cases are not in fact, inconsistent with each other.
And the point that I don't think Jen has about it, the point that I don't think Justice Alito did write by is that the court is not explaining itself. Justice Alito tried to say why they're not explaining themselves. But I think the problem is that that discounts how increasingly apparent it is that there are at least latent inconsistencies in some of these ru-rulings. To the broader point of Justice Alito's insinuation that those of us who are criticizing the court or trying to intimidate it.
I mean, I wrote a long piece in slate that was published on Monday that tried to suggest that this is actually a deeply unfair charge that there are those of us who are critical of the court entirely because we fear for his legitimacy. And where does the courts legitimacy come from? Well, Jeff, the Supreme Court has told us this legitimacy comes from its ability to offer principle justifications for its decisions. Here we have a contest where the court is handed down ever more decisions that are having ever broader impacts that lower courts and government officials are being told or precedential where the court is not offering principal justification.
Now, maybe it can. I mean, I don't you know, I didn't hear anything I said to be suggesting that they are acting in a distinctly partisan way, or that they are incapable of providing principle justifications. The fact here, though, is that they're not providing principle justifications that satisfactorily explain why the cases seem to be coming out so heavily in one way or the other. And that's not just me saying that, that's Elena Kagan saying that. And when someone like Justice Kagan, who does not throw these, you know, charges around lightly, publicly accuses her colleagues of being inconsistent in their unreasoned and unprincipled decisions on the shadow docket.
You know, I think that's a charge that requires more than just, hey, at least we didn't throw the election to Trump. You know, that, that seems to be a very different kettle of fish and a charge that is not just rebutted by saying we can point to a handful of cases where we didn't rule the way you thought we would.
[00:30:48] Jeffrey Rosen: Jen, what do you make of Steve's claim that the fact that the court isn't explaining itself creates at least the appearance of legitimacy issues, and Justice Kagan called him out. And he says, in his recent slate piece that this, the legitimacy of the court is eroding quickly, the court is unpopular now as it's been in a generation. And he's worried when he sees justices behaving in ways that whether deliberately or not reinforce the progressive narrative that the court has been subjected to partisan capture.
[00:31:22] Jennifer Mascott: Thank you, Jeff. I mean, to be clear, I might be one of the only ones not bringing charges against anyone, because I think that all of the justices are trying to decide cases and orders requests according to rule of law. And I think that Steve has done a lot of thorough work and honestly has concerns about what he perceives to be you know, just concerns about wanting the court to rule more broad-broadly, or I mean, to explain more thoroughly. And this is where I think at the end of the day, I mean, my own jurisprudential view about the proper role of separation of powers and federalism would be to desperately want the court to be looked to less as the arbiter of policy and having to make all these decisions and all these requests brought to it because I don't think that nine individuals who are not popularly elected can really reflect the pulse of the needs in the United States.
I think it's 50 separate states, I think it's the federal government. So I think that's one thing driving it. I mean, as far as Justice Kagan's plea for or concerns in the Texas thing, I mean, sure she wrote a dissent. She was on the losing side of that case, and there's some frustrations, I think, similar, perhaps to Justice Alito, who had frustrations in California V. Texas, where the court decided seven members, including Justice Thomas and majority and Justice Kavanaugh, not to even consider the merits of the latest Affordable Care Act dispute because of standing.
And so two justices and dissent had quite strong views and accused the Court essentially of sort of playing games, because now the basis on which the law was upheld, the taxing power no longer is relevant, because there's no longer attacks or the concerns of some people writing separately in Fulton, so, saying, "Why on earth are we not revisiting Smith, in this case on the merits?" So I mean, justices are writing separately on both sides and dissent and concurrences. And not necessarily always getting the response of their colleagues other than what the colleague write in the majority.
As for explanation. I mean, of course, there has to be a stopping point, right? Because some of the decisions is here on the circuit docket or denials of petitions for cert, the courts, never given explanations about ... or, well rarely gives explanations about why it denies cert. It's not gonna necessarily be able to give an explanation on all of these cases. I think if we would look if we go through all of Steve's careful research we would see in matter after matter, regardless whether the court issues an in depth opinion at every step along the way.
If you look at the sum total of the policy, so for example, with the travel orders, six emergency rulings, finally we get Trump V. Hawaii, a decision where the court actually gives extensive explanation about its views generally of the challenges brought against that policy in its final form, and why at the end of the day, At least in its third iteration, the court finally found it to be constitutional. Similarly, in the census case, we finally get resolution.
I assume one reason the court, even if it thought it had jurisdiction in the Texas matter might be hesitant to rule on the merits is because it's got Dobbs, a challenge from the state of Mississippi coming before it on the merits docket in December, where the court is going to look at the constitutionality of Mississippi's ban on abortions past 15 weeks. And I'm confident we will get extensive explanation from the court in that case about its view of the constitutional nature of the lawfulness of Mississippi's law.
And so I think if we look systemically, the court is giving us explanation on these very important questions that are being brought before it. But I would really hope that as a body in the United States, we will learn a lesson from this to look more to the 50 state legislatures and the Federal legislatures for answers to some of the concerns that are plaguing the country during a time of great need.
[00:35:02] Jeffrey Rosen: Steve, what's your response to Jen's answer that the court may issue summary opinions and some shadow docket opinions, but eventually it does explain itself in full opinions. And what are the claim that the court doesn't do all that well, when it decides cases quickly? Bush V. Gore a famous example. Critics on both sides just said the opinion wasn't that well reason because it was done so quickly. And we saw during the election, Justice Kavanaugh had to revise some of the facts in one of his election opinions, because it was written so quickly. So what about that argument that it's fine to decide some questions on the shadow docket, as long as eventually the, the issue is decided and explained on the merits?
[00:35:45] Steve Vladeck: So I guess those, those are related but also distinct. So we try to take them, take them in order, Jeff. I mean, I think to the, to Jen's point about how the court eventually is, or may decide questions. I mean, that's, that's of cold comfort, of course, to the millions of Texans who, you know, as we record this have now been deprived of their constitutional right to a pre-viability abortion for 35 days. It's of little comfort to the millions of Californians who had their COVID, who had the state's COVID restrictions enacted by the duly elected governor, frozen by the Supreme Court in a way, Jeff, that never got to the Supreme Court on the merits.
In the travel ban cases, you know, Jen says the court eventually ruled on travel ban 3.0. Yes, why was it 3.0? Because these cryptic emergency orders in travel ban 2.0 force the Trump administration to change the policy. So I guess I am just, you know, I am of the view, that the notion that the court will eventually reach the merits doesn't account for the justification for having an emergency intervention in the first place, which is to protect rights or not to protect rights. And that if we're going to concede, as I think we are, that these rulings are in fact, having these broad systemic effects, that the justices are in fact treating them as precedential. Then the issue is their lack of explanation.
Jeff, you're entirely right. I don't think the Supreme Court has a very good track record historically, when it decides cases very quickly, you mentioned Bush V. Gore, you mentioned justice Kavanaugh's concurrence in the Wisconsin State Legislature case, from October. I would add, of course, and not to saboteurs from World War Two. But to me, the lesson to take away from that is if the court really feels impelled to act on an emergency basis, it should act as small as possible.
And that the, the lesson there is that if time is of the essence, rule as narrowly as possible, and if the circumstances don't permit that, figure out what is the best way to preserve the status quo, so that your emergency ruling, when you haven't had time for plenary review disrupts the rights of Americans the least and disrupts the balance of powers the least. And here again, I think you can point two examples of cases that are consistent with that view on the shadow docket. And you can point two examples of cases that are inconsistent.
And the central charge by central concern, the thing that I have literally, you know, lost sleep over sometimes is what justifies why sometimes the court is going out of its way to issue early emergency rulings to protect, for example, religious liberty, but not to protect abortion. And there might be an answer beyond we like religious liberty, and we don't like abortion. But this is where I come back to why if you're going to issue broad precedential rulings, you've got to tell us what they are. And if you're not going to tell us what they are, they should be neither broad nor precedential.
[00:38:25] Jeffrey Rosen: Thanks so much for that. Jen. What's your response to Steve's claim that the abortion cases seem to be treated differently than the religious liberty cases? And I wonder what you think influences the time that justice has taken in general. There was a famous article that Henry Hart wrote about the 1958 Supreme Court term called, the Time Chart of the Justices, he said that the time that the court takes is a function of the purposes they're trying to achieve and the audiences they're trying to reach. Does that still hold up and, and do the justices actually need time to reason well?
[00:39:00] Jennifer Mascott: So, thank you. So, on, I mean, on the Texas case, I mean, Steve started off by saying that if the case is brought up in an emergency posture, the justices be best to leave things in place as much as possible and rule narrowly. And I mean, in that matter, that is exactly what they did. Ultimately, they left in place the pre-litigation status quo, they left in place what had been done at the district court in the court of appeals level. And it is true, the justices and the justice actually did explain a little bit their reasoning, they mentioned major constitutional issues on the merits that they're gonna get to in Dobbs, they also raised procedural concerns.
And I do think it bears pointing out that it's, it's unclear to me that those of us talking here or, you know, professors, or even the judges have yet figured out which party the Supreme Court or anybody would have properly issued an order against in that litigation because of unique issues of state sovereign immunity and how the law is put together. And so, if we're thinking about rights, I think it's important really to keep in mind that the Supreme Court there actually has not taken any action in any way to strip anybody of any rights, whether you think the rights exist or not, it was the Texas Legislature passing the law.
And it's not outside of the realm of folks possibility to be able to direct objections and concerns to the Texas legislature itself. And so I think they're the Supreme Court, the folks in the majority really did feel it was their duty to at this point in time, not disrupt the pre-litigation status quo. And the religious liberty cases. Again, certainly the justices have certain jurisprudential views I think there as was sort of latent, and acknowledged in Steve's comment about it. You know, there were possibly competing values, right?
We had the governor who was expressing some health COVID concerns, and then we had people saying their immediate implications for our religious liberty. And I think they're, these were newer issues, newer actions in, in an emergency state that we hadn't necessarily seen up at the court level before, in contrast to perhaps abortion, which move a thought through a little bit more of it to be considering in Dobbs. And the court felt like it needed to in this case, with however, the circumstances and factors were presented to it, that the religious liberty concerns there, perhaps for more burdened, then whatever impact was going to be brought about by certain individual houses of worship not following certain COVID restrictions. And so I would imagine, that's why they, that's why they stepped in.
As far as timing on the decisions. Yes, I think the justices are trying to take the time that they can to issue important decisions. Now, I mean, certainly, that rule can apply across the board, in the, the sense that, you know, at least when I was clerking there, one of the types of matters that would come up most frequently on the order docket that the clerk's were helping out with were people petitioning for emergency relief in situations where there was an execution. And these were often petitioners who had perhaps requested relief from federal courts multiple times, and they're requesting at one last time, the eve of an execution and so the justices have to step in and every, all resources of the court are devoted to work figuring out the right answer.
And so obviously there, there's a circumstance, a state action that's about to take place that's driving the timing of the justice consideration. So sometimes I think these are timing things. You know, if you are, even with the government, right, some of the things that were driving emergency consideration, perhaps during the Trump administration border wall immigration policy, these things, the executive branch would have at least perceived on a more factual emergency at the border, or a pandemic crisis perhaps with the Biden administration and the eviction moratorium.
And so sometimes, to the extent there's urgency, I do think that's impacting the justices. But again, my, I, I do think it's helpful to just try to you know, think about is there a problem which I think Steve is admirably doing and figure out if we think there is one to objectively solve it. But always try to, to the extent that we can assume the best motives of others. And I think here, the justices really are in all of these cases looking at them carefully trying to apply the rule of law, and I'm sure that they are up at night, just as much concerns about, you know, trying to neutrally apply the law, as we are as outside observers, you know, trying to figure out how these different cases should come out, and how we can do the best job in our callings.
[00:43:19] Jeffrey Rosen: Thank you so much for that. Steve, in your congressional testimony, you identified a number of potential reforms ranging from reforms that could come from the court itself, including formally publishing any order by an individual justice denying an application and also reforms that could come from Congress, which could codify the features for granting emergency relief. Congressional reform, of course is tough in this current climate. Let's focus on reforms by the court. What, what do you think would be most helpful and [inaudible 00:45:02] actually be adopted?
[00:44:00] Steve Vladeck: Yeah you know, Jeff, it's the right question. I think the most important thing the court could do is try a little harder to persuade us of what Jen just said. And what I mean by that is, you know, instead of going out and giving speeches where we attack critics of the court, just do the work. And if you're, if you actually think there's a coherent way to reconcile the Roman Catholic Diocese, Tandon and SB eight rulings. Great, right [inaudible 00:45:31] it says so. If you really don't have time to write that opinion, issued administrative stay. I mean, this is a, it's a technical point Jeff, but it's not a, an unimportant one that, you know, just 11 days before the SP eight case.
Justice Alito, in his capacity, a circuit justice for the Fifth Circuit, issued an administrative stay of the injunction in the MPP case, even though we all know how Justice Alito probably felt about that injunction to by the court time, right to actually think it through. So back to hearts forward in the Harvard Law Review, right, that, you know, there's something about time that allows the justices to be judicial and judicious in ways that they can't on the suit in the moment, you know, in the heat of the moment.
And so when Jen talks about, like capital cases, yeah, I mean, one question I wanna ask on the reform front is, why do we not let prisoners bring some of these cases until the 11th hour? Right? Part of that's because we don't allow method of execution challenges until an execution warrant has been issued by the state. Well, maybe that's a problem in those procedures, and not in the sort of timing of the appeals by the lawyers. So Jeff, when I think about reforms, right, I think about sort of ways of taking pressure off the shadow docket, and ways of sort of ameliorating the concerns at this part, that these decisions are on principle and inconsistent.
And so to the on principle and consistent part, the most obvious reform is explanation, that if the courts gonna grant relief, or if it's gonna deny relief, but a justice is gonna dissent, commit to even a four paragraph ruling that explains what the right test is. By the way, in the Texas SB 8 case the court conflated the two different standards for relief for the different kinds of emergency relief the parties were seeking. So set out the right standard, then apply it.
And Jeff, a model of this to me, is the court decision also in August, to vacate the stay of the order blocking Biden's eviction moratorium. I actually thought that was a good use of the shadow docket where the court wrote eight pages. And it said, "Here's the standard we apply. Here's how we're applying it. Here's why we think we should make it to stay." It says everything that that's the exception on the shadow, Dr. Jeff, not the rule. So more of those ... And to the sort of broader concern, right, that the court is ruling in ways that smack more of, you know, parties in principle, right? The easiest way to fix that is just to say, "No, here are the principles."
And you don't get those principles from merits decisions in other cases. You don't find out in the Dobbs case about Mississippi's law, what the principle was that justified the ruling in the SB8 case, the principles need to come in the cases in which they're presented. And if the court doesn't have time to articulate those principles, it should either buy itself time, as Justice Alito did in the MPP case, or it should write nothing and not tell the court that they're bound by the nothing that the court said. And those reforms are not about results, Jeff. Those, those reforms are without regard to who wins and who loses, right?
And this is why I think that the piece of this that shaped that the most is when someone like Justice Alito says, you know, "The critics only problems that we don't like the results." that to me is preposterously unfair. Right that, you know, there are plenty of results on the shadow docket. I'm perfectly okay with as long as they're explained correctly. We, as lawyers especially should be willing to accept that process matters. And that the court's legitimacy depends upon the view, that we're not just trusting the justices to abide by the rule of law, we're actually seeing it in their work product that they're doing it.
[00:47:49] Jeffrey Rosen: Jen, are there any reforms you think the court might adopt on its own, that would be helpful? You both agreed that the shadow docket has increased in its use since 2017, although you disagreed about the causes and the effects, but on the theory that more explanation can be better than less or anything the court could do to reassure its critics?
[00:48:11] Jennifer Mascott: As far as the courts reform itself, I mean, my position is that I think generally the court is working well. I think that it is a good nonpartisan institution. I thought the same thing in 2018, after Justice Kavanaugh was confirmed, and then I started being asked questions about whether the court was illegitimate because he was, he made it through the confirmation process. I think the answer's no, I mean, and, and as far as explanation, sure maybe on the orders docket. There's not as lengthy opinions, but I mean, anybody who can read the dozens and dozens of pages that come out with every marriage ruling now with multiple separate opinions and say the court doesn't explain itself I think you know, clearly the justices aren't trying to explain, explain themselves.
And I mean, since the phrase was used preposterously unfair, I think the particular charge that, about party over principle, I just, that, I mean, I just have to object on the merits. Because I think when you look at the individual justices, particularly my former boss, Justice Thomas, just time and time and time, again, whether it's in Fourth Amendment cases, whether it's in preemption cases, again, joining Justice Breyer, in the Affordable Care Act case is constantly joining rulings, and so are many of the other justices that are not lining up with what you think quote unquote, conservative justice might do on the merits.
And I feel sometimes as though those are over looked and even when you look at SCOTUSblog statistics on how much the justices agree, there are certain aspects of that, that suggest that the newer justices are willing to sort of buddy up and team up with people who are on other sides of the aisle, perhaps than in the past. So again, I would just go back to I think we should try to, you know, respect people as trying to be good faith actors. If we're gonna think about reform, Steve does raise some ideas that I think are worthy of consideration. I also would hope that they're all thought about in conjunction with reform particularly at the district court level and national injunctions, because I think whatever a body of nine justices is doing cannot be as alarming as decisions issued unilaterally by one decision maker who's obviously gonna have their own personal biases at play.
So I hope that as we think through what the court is doing on the orders docket, we will also think about what's happening at multiple levels, and Congress certainly could try to step in and rethink jurisdiction, and I'm always in favor of Congress's legislative body taking a trenchant look at ways in which it can help represent the interests of Americans and as strong of a way as possible.
[00:50:39] Jeffrey Rosen: Thank you so much for that. And thank you for raising those legitimacy points, which we will certainly return to on future episodes of, We the People. Well, it is time for closing arguments in this wonderful discussion. And, Steve, the first one is to you. Why do you believe the shadow docket is troubling, and why should, We the People listeners care about?
[00:50:59] Steve Vladeck: So thanks, Jeff. I'm so glad to have the chance to do this and to get to join you and Jen. I will just say, Jen's last point is exactly the problem. Which is, yes, we see what we call strange bedfellows on the merits docket, we see a seven to two ruling on standing and the Affordable Care Act case. We've got a lengthy opinion from both sides about why the justices disagree. We don't see that on the shadow docket. The court issued 68 orders during the October 2020 term from which at least one justice publicly dissented, Jeff.
And none of them, zero of the 68 did a justice to the right of Chief Justice Roberts publicly joined the Justice to his elect. That to me is, you know, suggestive of a larger problem than just these are all happening quickly. And there's not time for explication. So when I think about like, what worries me about the shadow docket? Why I think it's a problem. It's not because I think the justices are acting in bad faith. I don't, you know, I don't, it's because they keep giving us fuel for the perception that they are. It's because they are, you know, not doing anything to disabuse those who would assume bad faith.
When they don't explain these inconsistencies, when they tell us these rulings that don't have analysis, or precedential, when they seem to be favoring one side over the other dependent upon whether they're the executive branch of the federal government or the state, when red states do well, and blue states do poorly, when Republican administrations do well, and Democratic administrations do poorly. And the way that you disabuse us of that charge is you provide principled justifications for why you're ruling the way you are.
When we look at the uptick in applications that the court is granting, when we look at the fact that the court is trained on this precedential, when we look at the paucity of the justifications the court is providing, Jeff, that's why I think this raises serious legitimacy concerns. Not because I think the justices are arguing in bad faith, but because I can't prove that they're not.
[00:52:56] Jeffrey Rosen: Thank you so much for that. Jen, the last word in this great discussion is to you. Why do you believe that the shadow docket is not a problem? And why do you think that, We the People, listeners should not be concerned about it?
[00:53:08] Jennifer Mascott: Well, first, thank you so much for having me on. Any day that I can have a lengthy discussion with Steve Vladeck. And Jeff Rosen is a great day. And so I'm very honored that you would bring me in to participate in this great, very important discussion. And look, I, I think the Supreme Court, as I, as I said, you know, is, is doing its best to try to handle really challenging cases. And I really hope that we the American people, as we continue to engage in discourse, whether it be on issues with the courts or issues with our elected legislators and executives will follow the model that I think actually the court often shows us with collegiality. Where I do think, you know, often the justices are praising each other publicly as, as people and as great public servants.
Historically, you know, we saw the great friendship between Justice Scalia and Justice Ginsburg, I think there are across aisle friendships. And so I think the co
