‘The Shadow Docket’ shines light on an increasingly uncommunicative Supreme Court | Rebroadcast

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Transcript

Announcer:

If you are dreading your family’s lack of communication this Thanksgiving, here’s a conversation about another group that’s saying less and less with real consequences. From our back catalog, Steven Vladeck joins the Modern Law Library to discuss the shadow docket and what it means for transparency and civil discourse.

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the A BA Journals Lee Rawles, and today I’m joined by Steve Vladeck author of the new book, the Shadow Docket, how the Supreme Court uses stealth rulings to Amass Power and Undermine the Republic. Steve, thanks so much for joining us.

Stephan Vladeck:

Oh, thanks so much for having me.

Lee Rawles:

So as recently as this summer, I mentioned the Shadow Docket to my mother who retired as an AttorneySync 2014, and she said to me, what are you talking about? So I think for many attorneys, especially those who may not be on Twitter, the shadow docket seems to be a new concept, but it’s not. Can you walk us through what’s the shadow docket?

Stephan Vladeck:

Yeah, I mean the shadow docket is really an umbrella term that encompasses almost everything the Supreme Court does besides what we usually pay attention to. So we spend so much time talking about the big substantive rulings that the justices hand down every spring. We’ve got a whole slew of them coming in the next couple of weeks. That’s important. Those rulings are pretty significant, but it’s actually only a small slice of the actual output of the court that by volume most of what the Supreme Court does is unsigned unexplained orders. And usually we don’t care about unsigned unexplained orders because they usually don’t have much of an impact. But I think part of why the shadow docket has become such a, I think, more visible, more significant topic is because we really have seen, I think in the last few years, a greater incidence of the Supreme Court doing some pretty significant stuff through unsigned unexplained orders in ways that are affecting more and more people on the street. And so I think that are triggering more and more interest in this less well documented, less well studied, well-studied, less often discussed ment of the court’s work.

Lee Rawles:

Let’s bring up a topic that I think most listeners are going to be pretty familiar with, which is the overturning of Roe v. Wade. Can you talk about how the shadow docket decisions impacted this?

Stephan Vladeck:

Yeah, I mean I actually think one of the real inflection points for public awareness of and interest in the shadow docket was September of 2021 when the Supreme Court through a really thinly explained five to four ruling on the shadow docket on an emergency application allowed Texas’s controversial six week abortion ban SB eight to go into effect. Even though under the law that had existed at the time under Roan Casey, the ban was flatly unconstitutional. And the of that decision, which ran about one paragraph was to make abortion functionally unavailable in the nation’s second largest state. 10 months before the court in the far more visible Dobbs decision actually overruled Roe v. Wade. I think that really Lee was one of the first big moments where folks realized that when the Supreme Court issues one of these cryptic orders, it can have pretty dramatic real world effects and it can actually have an enormous impact, at least in the law, on the ground if not the law on the books. And that’s part of the story that I try to tell in the book about why this is such an important feature of the court’s work, why it’s really hard to understand the current court without understanding the shadow docket. And sort of related to those why I think much of the court’s behavior on the shadow docket, including in the SB eight case where the court split five to four, I think actually would really trouble people the more they understood about it.

Lee Rawles:

So for listeners who may not be super familiar with the way appellate law works in the United States, if we were to do a schoolhouse rock version of how a bill gets to do, I have to say if you are so moved, please feel free, but what is the journey that a case would normally take on its way to the Supreme Court?

Stephan Vladeck:

Yeah, I mean this is such an important contextual piece of how this all works. So the Supreme Court sits at the top of our legal system. It is supposed to be the court of last resort. It’s supposed to be where cases end. And so a typical case that goes to the Supreme Court takes a couple of years to get there. It starts in a trial court, whether in state court or federal court. Usually there are some fairly laborious time intensive proceedings in the trial court. There’s some kind of ruling, hopefully a final one by a trial judge. And then we have the appeal. And in almost every case in our system there’s at least one level, sometimes two or even three levels of intermediate appeals courts between the trial court and the Supreme Court. And a lot of times the way that shadow docket disputes get to the Supreme Court is while all of this is happening, while an appeal is taking its time to wind its way through this very, very long process, one of the parties actually wants some kind of interim relief.

So take one example, I’m challenging a Texas state law, maybe I want that law to be blocked for the duration of my challenge. And Texas is saying, well wait a second. We should be allowed to enforce this law until the Supreme Court conclusively resolve the case. So a lot of what the Supreme Court does on the shadow docket is sort of best described as case management where it’s like, well, what should the status quo be while this case works its way to the Supreme Court? And when you describe it that way, it sounds pretty innocent and odine, but that can have pretty remarkable consequences where the status quo is, Hey, is this abortion ban going to be allowed into effect? Is this controversial immigration policy going to be allowed to be enforced right for the better part of two or three years while the case makes its way to the Supreme Court?

And Lee, I think another piece of the story is it’s also increasingly the case that when the Supreme Court is intervening early in the case to decide what the status quo should be while the case works its way through the courts, that actually increasingly is turning out to be the court’s last word as well. So that when the Supreme Court gets this very rushed, very cryptic application for relief from a party saying, please let us do this thing while the appeals running its course, that decision from the Supreme Court is actually going to have increasingly broad impacts beyond the parties to that case. That’s part of where the abortion story, the SB eight story really I think drove home why this has become such an important part of the Supreme Court’s work.

Lee Rawles:

Well, if that is being seen as a bellwether for how the court will eventually decide the case, do you think that that is having an impact on the lower courts if you are a circuit court judge and you haven’t gotten a fully reasoned opinion from the Supreme Court saying what their reasoning is, but it seems like they’re pretty clear favoring one party’s interpretation. Do you think that’s having an impact on the lower courts?

Stephan Vladeck:

Oh, I think there’s no question. And so this is where I think we’re starting to see changes in the Supreme Court’s behavior sort of trickling down to the lower courts. So it used to be, I mean as the book sort of documents, there’s always been a shadow docket. I mean, every appeals court is always going to need some mechanism for dealing with sort of case management for dealing with how we’re going to adjust the status quo. But it used to be that the court’s approach to these kinds of disputes was to decide them very, very small. It used to be that the typical emergency application would go just to a single justice, the designated circuit justice for that particular geographic area. They might hold argument, they might write an opinion, but it would just be them and they would never say anything more than they had to adjust the status quo.

They’d never actually reach some broader legal pronouncement. What has changed, I think in the last couple of years, and the book sort of walks through how this process evolved and when it happened, is now we have the full court handing down these rulings Lee in context in which if you’re a lower court judge, it’s really hard to ignore them. So one really visible example, in February of 2022, the Supreme Court put back into effect Alabama’s Congressional district maps for the 2022 elections. And the idea basically the lower courts had blocked them, lower courts had said, these maps violate the Voting Rights Act. You have to draw at least one more so-called majority minority districts so that you’re not discriminating against black voters in Alabama and the Supreme Court through an unsigned unexplained stay put those maps back into effect so that Alabama got to use those maps in the primaries and in the general election, Alabama’s congressional delegation in the current Congress is based on those maps.

Well, just a couple of weeks after the Supreme Court’s unsigned and unexplained stay, a different judge in Georgia found the exact same problem with Georgia’s maps said, this looks like a violation of the Voting Rights Act to me, we should block it. I should force Georgia to redraw its maps. So there’s another majority minority district in Georgia. And then the judge said, but the Supreme Court just issued this unsigned unexplained stay in the Alabama case. I have to believe it would do the same here. Therefore, I am not going to actually issue an injunction Georgia, even though I think what you’re doing is illegal, I’m not going to stop you from doing it. And so that’s just I think one very, very visible example of how these orders create at least defacto precedents. And Lee, the court itself is actually treating some of its unsigned unexplained orders as precedents in subsequent decisions.

There was a run of California COVID cases where litigants challenged California’s COVID mitigation measures on the ground that they discriminated on the basis of religious exercise that they basically singled out religious worship for especially restrictive treatment. And in a series of cases, the court relied upon one of its first rulings in a California case, an order called South Bayi in order where there was no majority opinion. And yet in case after case after South Bayi, the court points back to South Bayi and says, Hey, lower courts, you should have followed that there’s an order called Gateway City Church versus Newsom, where the Supreme Court says the Ninth Circuit clearly errored and that the result was dictated by South Bayi again where there was no majority opinion. And so I think part of what has changed in the last couple of years is that what used to be these very cryptic do no harm, make no law orders by individual justices in context in which they weren’t speaking for the full court have become full court rulings that are both sort of implicitly and explicitly being treated as precedents that lower courts are bound to follow even when there’s no analysis to apply.

And as much as that I think makes life difficult if you’re a lower court judge or you’re a government official, I think it also raises some really important and challenging questions about the court as an institution if it is handing down rulings that it knows are having these downstream effects without explaining what it’s doing. I think that’s the real sort of shift in the court’s behavior in the last couple of years that the book tries to document and I should say criticize.

Lee Rawles:

We’re going to take a quick break to hear from one of our advertisers and when we come back, I’ll still be speaking to Steve Vladek about the shadow docket. Welcome back to the Modern Law Library. I’m your host Lee Rawles, still here with Steve Vladek. So Steve, you brought up case management and one of the most powerful tools the Supreme Court has is a word that I’m afraid I’m going to be pronouncing incorrectly. Sari, for anyone who is not familiar with this term, can you take us through what cert is and how the Supreme Court uses it and how it really is a very powerful tool in this branch of government?

Stephan Vladeck:

Absolutely. So if you’re a mispronounced, and so am I, but C is actually a critically important mechanism that I argue in the book, I think is directly responsible for part of how the Supreme Court became so powerful in a nutshell, C is just a fancy way of basically saying that the Supreme Court gets to pick and choose which cases it hears that its appellate jurisdiction is discretionary in almost every case. There are a couple of exceptions, but they’re so small. And one of the most important things to say about Ari is that it’s a modern phenomenon really from 1790 when the court first met all the way through 1891, all of the Supreme Court’s jurisdiction was mandatory, meaning that if a case was brought before it that justices had no choice but to hear it. This leads to a completely overcrowded backlog of cases by the 1890s and Congress sort of slowly starts to reduce the backlog, but it’s actually President Taft who will eventually become Chief Justice Taft, who’s pushing the hardest to expand certi to give the court virtually unfettered discretion over its docket.

And Lee, he does this not just to sort of make the justice’s lives easier, he does this because it’s in keeping with his vision of what the Supreme Court is, right, that the Supreme Court is meant to be not just a supreme court of appeals, not just a court that resolves disputes among lower courts and that sits to hear all cases, but that the Supreme Court was meant to be a constitutional court to be above the ordinary sort of push and pull of the legal system to pontificate from on high, all of the big sort of legal questions that are facing our legal system today. And so it’s TAF first as president and then later as Chief Justice who really pushes for the radical of certi entirely to consolidate the court’s power by giving the court the ability to say, no, we don’t want this case.

And yes, we want that case. And by sort of using its power over its DACA to set its agenda, this culminates it 1925 with the passage of the Judiciary Act of 1925, which was known then and now as the judge’s bill because the justices wrote it. And right after that, bill goes through Taft goes even further. Not only does the court claim discretion over which cases it’s going to hear, he also starts to claim discretion over which issues the court is going to decide within those cases. So much so that today there will be cases where the court actually rewrites the question that the parties presented and then agrees to hear it. And so what that means in practice is that on the merits docket, that part of the court’s work that we do pay the most attention to. We got to keep in mind that all the court is deciding is the 55, 60, 65 cases, it wants to decide on the terms it wants to decide them using the questions it has agreed to resolve.

And I think it’s not obvious, I think even to lawyers, how that relates so directly to the rise of the Supreme Court as this dominant force in American political culture. But I try really hard in the book to explain first through the sort of the 20th century history and then through the same sex marriage cases in the 20 teens, I mean just how direct a correlation there is between the court’s ability to control its docket, which all happens on the shadow docket. It all happens through unsigned unexplained orders and just how much power the justices have today to basically pick and choose the specific legal questions they want to decide in the cases they want to decide them and nothing else.

Lee Rawles:

Well, let’s get into the same sex marriage decisions because I found it interesting in the book the way you showed what you meant when you said that by deciding to hear a case or declining to hear a case, the Supreme Court actually was deciding the issue essentially. So could you talk a little bit more as you did in the book about what the same-sex marriage case illustrates about the shadow docket versus the merit docket?

Stephan Vladeck:

Yeah, and I think this is a really, really great illustration of how the shadow docket, and in this case Ari can have just as profound substantive effects as the kinds of emergency orders that we’ve seen in recent years, like in the SB eight abortion case. So the conventional wisdom is that the Supreme Court legalized same-sex marriage nationwide in its June 26th, 2015 decision, a case called Obergefell v Hodges. And what the book tries to show is that it’s actually not really true that by the time the Supreme Court decided Obergefell same-sex marriage was lawful in 37 of the 50 states, and that although 19 of those 37 states had chosen to legalize same-sex marriage themselves, 18 hadn’t. And that in 18 of those states, the reason why same-sex marriage was legal was because the Supreme Court had refused to take up appeals by states of lower court rulings that had blocked marriage bans.

And so there are a number of these decisions in the summer of 2014 where federal appeals courts across the country block state marriage bans on the ground that they violate the rights of same-sex partners and the Supreme Court is asked to step in and to resolve, Hey, is that true? And on the first Monday of the court’s October, 2014 term on October 6th, 2014, the court denies without any explanation seven petitions from five states basically asking the court to step in on the same-sex marriage issue. By denying Hurri, the court thereby allowed to go into effect lower court rulings that had blocked those marriage bans. So that really within a matter of hours in some states days and others, the same-sex couples were getting married simply because the court denied C. Now the court is eventually forced to step in because one federal appeals court about a month after, goes out the other way, the sixth Circuit, the Cincinnati based appeals court actually upholds same-sex marriage bans creating the kind of circuit split that the court had to resolve.

That’s how we get Obergefell. But until the sixth Circuit had ruled, it seemed like the Supreme Court was perfectly happy to clear the way for same-sex marriage on a nationwide basis just by denying cert. And I think that’s a pretty powerful introduction to folks who don’t follow the court as carefully into just how strategic behavior by the justices through unsigned unexplained orders. Simply like those saying, we’re not taking up these appeals can produce immediate, powerful, remarkably important downstream effects in reality. And I think that’s also true in the emergency application context, but it can be just as powerfully true in what we might think of as more ordinary denials of permissive appeals.

Lee Rawles:

So your thesis in the book is that this use of the shadow docket has undergone a considerable uptick, especially since the Trump administration began. How have the past five, six years been different and increased concern about the shadow docket versus the way the shadow docket was being used before? You said in 2014 the shadow docket had a, well, not the shadow docket SI had this powerful effect. So what made the Trump years so different and how does that continue today?

Stephan Vladeck:

Yeah, so I mean think this is, it’s a really important point, but also a subtle one. So what made the Trump years different was, especially on the emergency application side, how often the court was granting emergency relief, that is to say stay in a lower court injunction, so allowing a Trump immigration policy to go into effect or directly reaching out to block a state policy in the California COVID cases. What had changed from the sort of pre 2017 period is that before 2017 where the court was most active in emergency applications was almost entirely limited to the death penalty. And that ever since the reinstitution of the death penalty in 1976, that had been the dominant and in some years almost the exclusive source of emergency litigation before the Supreme Court. You ask anyone who clerked on the Supreme Court in the eighties or nineties or two thousands, what was the shadow docket?

They would say it was the death docket. And so there were already some troubling pathologies and how the court handled those death cases. You’d have full court rulings with no explanation even when you were changing the status quo, you’d have treating some of those orders as having downstream effects. But Lee, at least back then, they really were limited to the unique context of the death penalty. And I think there’s a mentality among lawyers that death is different and that there is a sort of a different set of rules for death cases. What changes in 2017 is all of a sudden the court starts intervening over and over again at a greater frequency than ever before, not in the death context, but in the context of nationwide policies where the court intervenes to put back into effect. For example, the second iteration of the travel ban, the third iteration of the travel ban, the transgender military ban, various controversial Trump asylum policies, Trump’s plan to ask a citizenship question on the census.

And there’s a whole run of decisions where with no explanation the court allows the Trump administration to carry out policies that multiple lower courts had blocked. This I think then begets the next wave, which is when the COVID pandemic hits. You see the court being similarly willing to reach out and block COVID mitigation policies, especially in blue states with no explanation even when lower courts had written dozens if not hundreds of pages about why those policies were lawful. So just to tie all this together, I think what changes starting in 2017 is a combination of really four different things. One, the court is intervening far more often than it had. And the other point, outside death penalty history,

Lee Rawles:

Welcome, who now continue our program

Stephan Vladeck:

Progress are not necessarily providing explanations, almost never providing explanations even when they’re upsetting the status quo, even when they’re reversing what the lower courts had done. Three, these interventions are treated by the justices as both formally and functionally presidential, which the court had never done with these kinds of rulings before as we talked about, for example, in the Alabama and Georgia redistricting cases and the California COVID cases. And fourth, and I think Lee, this is what ties the thread together. These interventions at least appeared to be in defiance of the consistent rules the court had previously followed for when it could act in this respect. So like the California COVID cases, the court is issuing relief that’s supposed to require that the right at issue be indisputably clear when in some of these cases it’s relying upon a new theory of the free exercise clause.

It shouldn’t be possible for a new theory to be indisputably clear. And what really I think leaves at least me with a sour taste from all of these interventions by the court, is that they also appear to be inconsistent with regard to who they favor, where the court goes out of its way to block Blue State policies in the emergency context, but not red state policies where the court goes out of its way to put back into effect Trump administration policies, but at least to this point, not Biden administration policies. And so this all sort of culminates in a, I think, very real sense that the shadow docket is a place where the court is making policy without necessarily making law and intervening in context where the most coherent, consistent explanation for the behavior is the partisan valence of the dispute and not the underlying substantive principles. And I think it’s all of that sort of stew taken together, which I sort of need a book to unpack. That’s a big part of why I think the shadow docket is such a problematic feature of the court’s behavior. Today

Lee Rawles:

We’re going to take a quick break to hear from our advertisers Again when we return, we’ll be talking about Chief Justice John Roberts. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Steve Vick. So Steve, this massive shift you’ve seen with the shadow docket, this has all happened under the watch of Chief Justice John Roberts. Could you talk a little bit about what his view of the shadow docket seems to be? I’m asking you to read tarot cards a little bit, but this has happened under his watch. Do you see it as something that he has encouraged, something that he enjoys, or is he being swept along with greater forces?

Stephan Vladeck:

I actually think, and I say in the book, I think to some degree he’s the canary in the coal mine and he has stopped singing. And this to me is perhaps the most interesting data point. I think it’s a common reaction when people like me are publicly critical of the court that the procedural critiques are actually just frustration with the current composition of the court that are dressed up in procedural close. And the reality is that’s not true, but it’s hard for me to prove it. It’s not hard for John Roberts to prove it. So Roberts has been, especially since 2017, as we’ve seen this uptick, the one justice who has regularly voted against what we might think of as expectations in these cases. In the SB eight case in the Alabama redistricting case in a bunch of the California COVID cases, he has joined the Democratic appointees after Justice Ginsburg died in dissent him before she died in the majority where his reasons, his arguments are not that he’s agreeing with the more liberal justices on the merits, but that he has procedural objections to the relief that the litigants are seeking, that he thinks the shadow docket is not the right place to be resolved in these kinds of questions.

He writes a really important concurrence in a May, 2020 COVID case where the court refuses to block an early iteration of California’s COVID policies, but only by a five to four vote where it’s him and the liberals and he says, these policies might be unlawful, but you’re not asking us to review them de novo, you’re asking for an emergency injunction. And that’s a pretty steep hill to decline. He’s dissenting once Justice Barrett joins the court with the more liberal justices, as the court starts granting more of these injunctions he dissents in the Alabama redistricting case because he thinks even if the court is going to change its interpretation of the Voting Rights Act, that’s something the court should only do after full briefing and argument, not through an unsigned unexplained order. He joins Justice Kagan’s dissent in April, 2022 ruling about the Clean Water Act statute where the basic complaint of Justice Kagan is that the conservative justices were taken inappropriate procedural shortcuts now for the first time hears Roberts agreeing with her.

And so I think what that really underscores, Lee, is two things. One, that this is not partisan, that you can be a conservative, you can be a very pro ideologically right of center judge and still think that these procedural shortcuts are problematic. Indeed, they might even be anathema to your long-term interest and your long-term goals. But two, and perhaps just as importantly that it’s really important to sort of look at the shadow docket not just as the sum of the results that the court is reaching, not just as the, does this policy go into effect as this policy blocked, but that the procedural steps matter and lawyers of all people should be the last, not the first to say that procedures are relevant. And I think that’s part of why the book closes with a little bit about John Roberts, the conclusion he figures very prominently in, because it seems to me that as damning as it might be for someone like me with my politics to be so critical of the procedural shortcuts and the inconsistencies that the other five conservative justices are taking in these decisions, I mean, it is really something when that criticism is coming from John Roberts where we know that he’s sympathetic on the merits, where we know that we know where he stands on abortion, on affirmative action, on voting rights, on the environment, on the free exercise clause.

And he’s still standing up and saying, this is not the way to run a railroad. And I think that what’s really remarkable about that is not just Robert standing up as the trying to stem the tide, but that he hasn’t been able to persuade, at least at this point any of his colleagues to join him.

Lee Rawles:

One thing that’s often said about Roberts is that he cares very deeply about the court as an institution. You’ve said before in our conversation and definitely in the book, your concern is that this use of the shadow docket is causing serious long-term institutional harm to the court. Can you elaborate on that? When you say that this is institutional harm, what do you mean? What would it be doing to the court?

Stephan Vladeck:

Yeah, I mean, so this gets to a broader conversation about where the court’s authority and legitimacy comes from, and folks are going to have different views about that. The book really sort of relies upon what the court itself has said in its prior decisions and in its public speeches. So Justice Barrett gave, I thought a very revealing public speech at the Ronald Reagan Presidential Library in April of 2022, where looking ahead to Dobbs and to Bruin and to all of the other high profile divisive decisions that she knew were coming down the pike, she says, Hey, listen, don’t just judge what we do by the bottom lines we reach. She says, read the opinion. And the idea is that what gives the Supreme Court legitimacy, what gives it credibility is not who wins and who loses in each case, but rather the public perception that the court’s decisions are guided by principles, maybe not principles that I or the average person on the street agrees with, but principles nonetheless, we may not agree with the principles.

We agree that they’re principles and what’s missing from almost all of the court’s, shadow docket interventions are principles so that as opposed to a ruling like Dobbs or Bruin where we can fight about justice alitos analysis or Justice Thomas’s analysis, or we can fight about the principle the court says it’s following and that lower courts now have to follow in life cases. All we have when the Supreme Court hands down one of these unsigned unexplained orders is tea leaves. And it’s really, really hard, I think to find principled decision-making in context in which the court doesn’t explain itself in context in which it at least superficially appears that the court is behaving inconsistently in ways that map more closely onto partisan politics than they do to any legal principles. And so I argue in the book perhaps somewhat counterintuitively that I actually think what the courts do on the shadow docket is much worse for its institutional health in the longterm than even the most controversial ruling that’s handed down on the merits docket.

If for no other reason, because here’s a context where those of us who want to defend the court as an institution, those of us who don’t just assume that everyone’s acting in bad faith have no way to respond, have no evidence to disprove claims, that the justices shadow docket votes are simply motivated by partisan politics and have no consistency other than the color of the state or the color of the plaintiffs from a political partisan perspective, that to me is a much bigger problem when talking about the long-term legitimacy of the court than whether we think rulings like Dobbs and Bruin or right or wrong.

Lee Rawles:

You brought up some of the court’s COVID decisions where it said whether or not certain restrictions could go into effect, but one thing I’d love to talk to you about is kind of ironically during COVID time when suddenly we had much less in-person access to many places including courtrooms, lots of places were going all virtual. This actually allowed in many places more access or easier access by the public to court proceedings. We actually at the A b ABA Journal are about to release a feature about the court watcher phenomenon where people who aren’t necessarily from a legal background became observers of their local courts and or even courts across the country and what was happening in those courts in those proceedings. However, at this same time, it sort of seems like the Supreme Court has distanced itself further. And you had an interesting sentence in part of the book where you said the contemporary court might even be said to see the public less as its audience than as its enemy. So I’d love for you to talk a little bit about that attitude where they seem to be perhaps cloaking more of their actions rather than allowing more access as many of the lower courts have.

Stephan Vladeck:

Lee, it’s such a great point, and I think it depends on the baseline you start from. I mean, it’s true that during COVID, even the Supreme Court accommodations that as recently as four or five years ago, we would never have thought the court would make, I mean telephonic arguments live streams. I mean that would’ve been crazy for anyone who watches the court that closely before COVID. But this is the same court that put up those massive security fences right after the Dobbs leak. This is the same court that has really stopped publicizing the Justice’s public speaking appearances. If you look at the Supreme Court’s dedicated webpage for speeches by justices, I believe the last one that’s on there is a speech by Justice Ginsburg in 2019, right? This is a court that has been famously not transparent about everything from the Dobbs leak investigation to financial disclosure forms from both sides of the bench, right?

And even with live streams, right? This is a court that isn’t live streaming the opinion hand downs, even though there are contexts in which those are of course far more important than the oral arguments that help to produce those opinions. And so I think what you see in the court’s behavior across a range of axes is a court that really feels less need to be public, less need to be open, less need to be sort of visibly transparent, a court that thinks that simply posting its decisions on its website suffices to satisfy whatever transparency norms we think might exist. I mean, justice Alito gave a speech at Notre Dame Law School in September, 2021, where one of his criticisms of people like me and our critiques of the shadow docket was how could it be in the shadows if everything’s on our website? Well, first of all, it’s on one of five different pages on the website.

Second, just on the website doesn’t mean it’s accessible. And so I guess there’s a mentality here that the court just feels perhaps to a greater degree than at any point in its history that it’s really not beholden to anybody else, that it’s not beholden to Congress, it’s not beholden to the executive branch, it’s not beholden to the American people. And I think that’s a dangerous road to go down because I think a big part of how the court gets into institutional trouble in the long term is by no longer being remotely reactive to broader public pressure, to broader public debates, to broader accountability desires. And I think that in that respect, a lot of what’s happened on the shadow docket in the last five or six years is not a disease unto itself. It’s a symptom of this broader disease of a course that really has no need to look over its shoulder and feels no real pressure coming from elsewhere and feels like it can do whatever it thinks is right without consequence. And that has not been true at any prior point in American history. And I think it’s something that we ought to be thinking about even if we actually like the bottom lines that the justices are reaching in these cases.

Lee Rawles:

Well, to close out, you brought up public debate, and one thing you say in the book is that this book began for you as a Twitter thread. Twitter’s actually where I first encountered you speaking about various cases. And so I’d love to just hear from you about how Twitter discussions have helped shape this book. I mean, we are talking on April 4th. So listeners, you are listening to this in I believe May and so many things may have changed, but as of now, what do you think of Twitter as a useful public square where you talked about the shadow docket where this book was first germinated? What happens next?

Stephan Vladeck:

Well, I mean, Lee, I think there are obviously lots of issues with Twitter today. And the noise to signal ratio I think has increased dramatically, which makes it both less useful, I think, to be doing this kind of work on Twitter and more toxic. But I wrote this book because it really seemed to me that it was a gap and a mistake that lawyers and law professors and the professional legal media don’t do more to try to make the more technical parts of the Supreme Court’s workload accessible to non-lawyers. And what I found, I mean, what really I think emboldened me was the more I would tweet about the shadow docket on Twitter, the more people would pay attention to it. And the more that I could see understandings of the norms and the rules and of what was weird and what wasn’t weird, seeping into popular discussions of the court on social media, on TV shows, wherever.

And I think what that really drove home for me is that it’s not that there’s a lack of appetite on the part of the public for these kinds of nuanced technical discussions of what the Supreme Court actually does. It’s that we’re not supplying enough of it that those of us who are on this side of the information disseminating the universe aren’t doing enough to say, Hey, when the Supreme Court denies cert, here’s why that’s a big deal. Or, Hey, when the court grants this emergency application and doesn’t explain itself, here’s why that’s so problematic. I think it’s really important now more than ever when so many folks are getting their information from their own constructed set of sources that we not, I think fail to take seriously that we not undervalue the utility of putting out in the public discourse, even technical legal concepts, so long as we try to make them accessible to lay people.

Because I think it’s clear now, maybe to a degree that it wasn’t at any prior point in recent history that the Supreme Court and the federal courts in general have an enormous impact on the day-to-day lives of so many of us. And helping folks understand what that impact is and where that impact comes from and how that impact is created, not just by a 98 page majority opinion in a single case out of Mississippi, I think is a really salutary project. Even if the takeaway is actually, now that I understand it, I’m not troubled by what the court is doing. And just the last thing I’ll say is because my real hope at the end of this is that even folks who are more sympathetic to the current majority, even folks who like the bottom lines that the justices are reaching might agree with Chief Justice Roberts, that process matters. That the court ought to be acting in ways that are as transparent as possible, as well explained as possible, as consistent as possible because it’s in all of our interests, especially those who like the current majority, that we think of the court as a healthy, well-functioning principled institution. And I think the real bottom line of the book is the more you understand the shadow docket, I think the harder it is to walk away from the current court with that conclusion.

Lee Rawles:

Well, Steve, thanks so much for joining us for this episode of the Modern Law Library. If my listeners wanted to get ahold of more of your work, where could they do that?

Stephan Vladeck:

Well, as we discussed, I’m on Twitter, or as one federal judge recently put it, I’m a law professor with a Twitter account. My Twitter is at Steve Vladi. I also write a weekly substack newsletter about the Supreme Court. It’s called One First, a Not very Subtle Homage to the Court’s mailing address, and that’s at steve vladi.substack.com. And I would love any listener feedback. So you can also always just email me at s law dot u texas.edu.

Lee Rawles:

You can also reach us at the Modern Law Library at books at ABA Journal dot com if you have a book that you’d like us to consider or feedback to the show. If you enjoyed this episode, please rate review and subscribe in your favorite podcast listening service.