Bringing To Light The Supreme Court's Shadow Docket | Steve Vladeck | TMR

joining us now see Steve lattic chair in federal courts at the University of Texas school of law author of The Shadow doc at how the Supreme Court uses stealth rulings to amass power and undermine uh the Republic uh Steve welcome I'm here with Emma vigland um the shadow docket I I I thought I just had not heard about it over the past like 10 years but it is a relatively new um It's relatively new in terms of the amount that it's being used and and and the name Shadow docket is not its official name uh but that's what we've come to understand it um let's start with what but let's start first with what is the Merit docket uh and then we can move to the so-called Shadow docket sure um so the the merits docket is basically what we usually think about when we think about decisions from the Supreme Court when you know the court takes a case usually at the end of oftentimes years of litigation um the affirmative action cases for example when the court holds oral argument hands down you know lengthy signed opinions concurrences descends you name it that's the merits docket that is what we tend to focus on when we talk about the output of the Supreme Court but you know Sam Emma it really turns out that that's only about one percent of the Court's output um and you know most of the other 99 is not stuff we care about it's not stuff we ought to lose sleep over but not all of it and so part of the you know the idea here part of why I wrote the book is because in the last six seven years we've really seen an uptick in how rulings that are not on the merits docket rulings that are by tradition unsigned and unexplained have had far more significant impacts on all of us before we get into that element of it just in terms of the the merits uh docket what are what does having years of court cases that lead to the Supreme Court having a a decision written out having dissent uh written out what does that do what does that provide our our legal system our society broadly speaking yeah but I think there are three real sort of key characteristics to it so the first is of course you're giving the parties the fullest opportunity to be heard um so there's a meaningful chance for every argument to be made for every you know issue to be discovered for every fact to be uncovered and so you're actually providing the maximum amount of transparency um number two um you're giving yourself as judges the most time to actually get it right um to deliberate over the matters to entertain opposing viewpoints to go back and forth with your colleagues um in the Detroit drafts but Sam the third is the most important this is what makes courts courts as opposed to political actors right that the sort of this process the the flow the pro the provision of principle justifications for your decision making is exactly what makes these rulings exercises of what we might call judicial power as opposed to political power and the Supreme Court itself has said that the court has said for Generations that at its legitimacy flows directly from its ability to provide rational principal deliberated justifications for its decision-making not because we're all going to agree with the Justice's principles but hopefully because we're going to agree that the decisions are motivated by principles and that's what you know has come to characterize historically the merits docket for as long as we've known it and and and we should say and maybe you can um uh elaborate on this it is not just the court the these dissents these decisions do not exist as discrete as discrete entities they are seen at in the context of a a temporal flow through society that that that in in some ways like you know the the trunk of a tree has implications for the branch of a tree that's exactly right and so you know what gives the court credibility is not that we agree with it I mean if we look at the course of American History right it's littered with terrible Supreme Court decisions uh many of which provoked massive backlash um rather it's that we believe for better for worse that the court is acting as a court um and it's acted in the judicial capacity and the Hallmarks of that are you know following ordinary judicial process providing principle justifications for decision making and the sort of disabuse him critics um of charges that these are just partisan actors cast and partisan votes part of why we get so exercised when the Supreme Court reverses a precedent for example last term with Dobbs in row is because fealty to precedent the idea that all things being equal courts are bound by their predecessors decisions is a central part of this story it's a central part of why a court is a court and a political actor is a political actor and the blurem of that line is part of where we get into you know the current pushback against the court this is you know part of the story that I'm trying to tell and I hope folks will take away if they you know pick up the book is that this push and pull is not actually about the bottom lines that the justices are reaching in any individual case but rather about the institutional give and take and the institutional process that the justices are following you know in individual cases and in the aggregate hear me out though right it is the shadow docket though refreshing in that instance that it strips the fiction off of all of this right in a pre in a in one Fell Swoop where we know that they're not making these decisions based on rational calculations that this is a political body so I mean I think Emma there's certainly something to that and you know there there are ways in which properly situated in the shadow docket right properly sort of showing how these unsigned unexplained decisions that have become so much more prominent and visible in the last few years really do seem to be explained best simply by the partisan valence of the dispute I think does open the court up for even harsher criticism than merits rulings with which we disagree whether it's Dobbs or the brew and second amendment case I guess the only thing I would say to sort of slightly to put a softer Edge on it is I don't know that in this context it's nearly as deliberate like I'm not sure that the justices are sitting back and saying oh we can do it this way therefore let's do it this way I think rather it's more that they fell into a bit of a sort of trap um that they have been ill inclined or at least some have been ill inclined to dig themselves out of because they don't want to appear that they're responsive to the very kind of public criticism that at least some of them have lately been and you know question it I want to I want to get back to that after we we examine the the shadow docket but I was gonna my next question was going to be exactly along the lines of what Emma said there like we have we have there are two sort of I think um uh different critiques here um one is that there are underlying aspects of of the Supreme Court that are not just anti-democratic but that the that put into question the um the I guess the pretense some would call it a pretense of of the way that uh judges judge um and maybe that's a critical theory uh uh you know uh argument and then there's the sort of process which like Emma says the the the way that the process has been changed over the past five or six years and the ease in which it does I think sort of maybe lays bare to some truths in that first argument but let's move to um how the the process of law in this country has been it seemed like very easily just chucked out the window because we went I mean talk about um well talk about like the why it gained the name Shadow docket uh when it was officially considered the emergency docket and how just suddenly when the court became majority uh conservative the definition of emergency seemed to radically change over the course of 12 months yeah I mean so there's a lot there I mean so the the shadow docket was a term that was coined in 2015 by a conservative uh law professor University of Chicago named will Bode um and will did not mean it as a pejorative he really meant it as this evocative shorthand that was just trying to describe to you know folks who don't pay as much attention nerding out about the Supreme Court's docket um all of the technical stuff the Supreme Court does that can have significant implications the emergency docket Sam is obviously a big piece of that so just to put this into context you know the typical case comes to the Supreme Court um gosh after two three years of litigation for five years of litigation um where you've got the you know the sort of the process working out all the kicks um an emergency application is when before the case has a chance to get all the way to the Supreme Court someone asked the Supreme Court to step in and either freeze the status quo or unfreeze the status quo while that case Works its way up and so we're talking about like the mythopristone case from last month where we saw the Supreme Court step in to prevent judge kazmarek's order that would have effectively revoked the fda's approval of Memphis on an Nationwide basis Supreme Court stepson says no we're not going to let this go into effect while this case Works its way through um Sam that is not new right like the sort of the notion that the Supreme Court has to have a mechanism for dealing with emergencies is not new as you said in your question the real shift we saw started in 2017 was the court stepping in was the court agreeing that more cases presented emergencies in context that I suspect none of us would think were emergencies and the real sort of uh Catalyst was a whole bunch of emergency applications from the Trump Administration where lower courts had blocked Trump policies uh immigration policies the transgender military service ban you name it um and the government goes to the Supreme Court and says hey we'll be back in a couple of years to fight over whether those lower courts were right or not but we should be able to carry out these policies in the interim and that's where we saw the court really break from its prior behavior in how often it was granting these applications in the effects that those orders were having um and Sam eventually in the inconsistent way in which these unsigned unexplained rulings tended to favor claims from a Republican president but once Biden comes to office not a Democratic president um ditto claims from Red States not blue States like that's where we really saw this blow up starting in 2017. what do you have can you quantify that change over the course of let's say uh you know from Administration to Administration sure I mean so just if we just look at cases where it's the federal government the most frequent party before The Supreme Court that's asking the justices for emergency relief that's saying hey we want you to put this policy back into effect while this case goes forward during the George W bush and Obama administration so you know guys two pretty different two-term presidencies um we saw the justice department go to the Supreme Court a total of eight times so once every other year um and the court granted four of those denied for but seven had no dissents right so the Court's rulings tend to be not divisive or especially contentious in the Trump Administration in four years um the executive branch grows to the court 41 times so you know more than 20 times as often and the court acquiesces in 28 of those cases 28 times the justices step into grant emergency relief say I'm in a context in which this was allowed Donald Trump to build the border wall right this is allowing Trump to carry out Asylum policies that every Lower Court held to be unlawful and you know that's really where we start to see this pattern shift from the Obscure once in a blue moon um emergency docket of the pre-trump era to what's really become the norm in the six years since so in those uh prior 16 years under the uh the first 16 years of the 21st century um eight cases you say seven of which were uh unanimously and I I don't you know I don't know what that percentage is 85 percent I don't know somewhere around there um what of the 28 during the Trump years um that were the court actually you know acted upon like what was were those how many of those were unanimous um so uh one weird thing about writing about all this is that we don't actually ever know um because the votes are not public um but so the the way I started talking about in the book is whether there were public descents and of the 28 times that the court grants emergency relief to Trump I think 25 or 26 of them had Public Defense no so right so I mean it's clear that this is dividing what the justice is to a degree we haven't seen before um those dissents increasingly take on you know sort of charges not just that the substance of the case didn't justify intervention but that the court was abusing these emergency applications Justice Sotomayor is the first to level that charge in a September 2019 descent so Sam I mean the Trump cases are not the end of the story they're really the beginning of the story but that's where we really start to see to go back to you know where you started this the the notion that it's an emergency um or in formal legal terms that the government is irreparably harmed anytime one of its policies is blocked by a lower court we had never seen that mentality before we'd never seen this kind of aggressive intervention by the court before it's almost as if a word can be interpreted in different ways by different people as even if the word is written down um I mean there's not only that yes I would go even further and just to say that part of what compounds even the sort of interpretive disagreements that in good faith we could say are underlying these disputes right is that no one's actually writing down why the court is intervening so you know what compounds all of this is that the normal defense against charges at the courts being inconsistent is missing because the Court's not providing any kind of explanation for why it keeps ruling for Trump so that when shock of all shocks right President Biden comes to office and the very same arguments are made by the solicitor general by the federal government and the court now rejects them um it's not necessarily defying prior rationales because there were no prior rationales all right that's the right that's the that's where it starts to look really bad and uh and and we'll get to this as well but that is um that strikes at the heart of accountability in terms of how the decisions are are being made right I mean if if I don't know why the first decision on what grounds it was made even if I totally disagree I have no way to address that in the future uh because it's all just it's it and it could very well there could be a sort of consistent rationale um the one would imagine you would people would would try would would be would be happy to provide it if there was a consistent rationale but there isn't in this and um let's talk about like what the nature there's really basically two um I guess you could say silos of major uh cases that you you uh write about in the book that um were uh where really in many respects new law is being created and I want to talk about that the general implications of that as well and how you can have new law created with no underlying explanation about it um but it's essentially covid and religious liberty um and then the second tranche is uh voting rights um let's talk about the first um it's not just coveted regulations but it was really focused on how it impacted religious people that's right so so you know one of the I mean back to back to the point about how it it undermines public confidence when there's no rationale you know there were efforts to defend the Court's behavior in the Trump cases as being sort of you know uh Evanescence as being a response to this unusual hostility on the part of lower court judges to president Trump and so you know that's just it's just about that and that's why the covet cases are important because here's a context where you have challenges to state laws not federal laws um where Trump is nowhere in the conversation and where the court is behaving similarly where we see you know the justices except in emergency challenges to covid mitigation measures in blue States primarily um on what end up being novel religious exercise grounds uh where the court actually ends up handing down a new understanding of free of freedom of religious exercise in the Constitution um in the context of these you know unargued unsigned unexplained cases and that's remarkable Sam I think in two respects the first is um I think it puts to bed and the argument that would happen in the Trump cases was somehow Trump specific and wasn't part of a broader shift in the court and how it approached this but second it was incredibly sort of clear just how much of a difference Justice Amy Coney Barrett made in those cases because you know in the summer of 2020 when Justice Ginsburg is still on the court the court actually turns away the first slew of these kinds of claims in a case from California in a case from Nevada with Chief Justice John Roberts joining the four you know Democratic appointees in deny and relief as soon as Barrett's on the court her very first public vote as a Justice um is to reverse that is to flip that over starting right before Thanksgiving in 2020 where now you have a 5-4 majority going the other way with John Roberts joining the more liberal justices and dissent all because of you know this perception that these covid restrictions were interfering with religious exercise in ways that were unconstitutional and that's where I think Sam you really start to see the gravity of the charge that this was not just about a you know one-sided set of cases involving the Trump Administration but a more profound shift in how the Supreme Court as an institution was approaching these kinds of applications for emergency relief and and we should also note and I don't know that it's really an issue in terms of like our audience here but but more broadly speaking the the question of whether kovid was real or dangerous or uh or whatever completely irrelevant in this situation and and I say that because um whether if we have another pandemic and it could be one where uh it's the uh the the virus is not nearly as uh lethal or uh have the same Health implications or it could be one like I don't know a a virus a novel virus that is like Ebola where you know uh your eyes liquefy and uh it happens like that we don't know if I'm in a state government I don't know what I can do at this point because there's absolutely no guidance from the Supreme Court other than we're going to shut it down uh based upon this notion that like well people in churches I guess are protected from the implications of of a virus as opposed to people in a movie theater let's say right I mean that's that's one of the big problems here so I I think that's one of the problems you know what's that would be bad enough right I mean it would be bad enough if the court was intervening to block all of these covid restrictions without explaining why it was intervening um what makes it even worse Sam is that it's intervening in a context in which it's only supposed to be able to rule for the challengers it's only supposed to be able to block these policies um if the right to relief is in the words of the Court indisputably clear um and so what's especially gallin about the Kovu cases is that here's a contest where on the Court's own interpretations of its Authority it's not supposed to be intervening in close cases and it's not supposed to be intervening just because it happens to disagree with prior law and yet the court is repeatedly intervening in order to move the law forward from their perspective right in order to change the law that's exactly what the emergency Doc it's not supposed to be for right the emergency supposed to be for when lower courts have errored so egregiously vis-a-vis the status quo not as a way of making a new law faster and that's where you know the I mean the book has this sort of subtle but I think pretty clear shift from the sort of the descriptive part of the book to the more critical and prescriptive part of the book and this is where it gets hard to not be critical of the court because it's an abuse of the Court's procedural rules to do it this way it's an abuse of the Court's sort of institutional relationship with state governments um and it's all in the context in which the court is not providing justifications for these kinds of interventions and Sam all wow it actually has cases on the merits docket raising the same questions where if they really wanted to change the law they really wanted to revisit these precedents they actually had a perfectly clean and appropriate vehicle for doing so that's where it starts to look like this might actually be at least somewhat willful right on the Justice's part so okay and just to be clear to put a finer point on that the emergency docket um had been used as a way of dealing with an immediate miscarriage of the law as opposed to and and this happens all the time a um a sense that the law should evolve uh either the law should evolve in a certain direction or that past precedent had been problematic and was was misdetermined so when addressing the nature of a law or our understanding of it emergency docket had never been really used in that way um only when somebody more egregiously was not following the way that the law was understood by the court because otherwise how can you show that you're being irreparably harmed by law that isn't settled um right I mean that's the you know the what's supposed to differentiate a court like the Supreme Court intervene in early in a case versus waiting for the case to work its normal process through the courts is whether if we don't intervene now you the party asking us to intervene are going to suffer a harm that we can't fix later right that won't be redressed by us ruling for you six months 12 months 18 months from now and you know Sam back to where you started right I mean the in a world in which we understand irreparable harm traditionally um it is impossible to see how someone can be irreparably harmed by a lower Court ruling that Faithfully applies exist in law um right versus I'm irreparately harmed because the lower courts not changing the law the way I want it to ha I I can't hear the the phrase irreparable harm without thinking of bush V Gore and I wonder how much and that was not obviously that was not a that was not there was at least some theoretical there was there was a dissent but we were at least got to read their reasoning uh in that and I would say at the very least and it was about the the least in my estimation but um how much did that notion of irreparable harm influence uh the the this new I guess um concept of a irreparable harm well I mean I think it starts slipping not that you know roughly around the same time as Bush was to score I mean I do think that you can see you know especially some of the conservative justices taking a more capacious view irreparable harm um where it's in the eye of the beholder right where in Bush versus Gore the irreparable harm was letting the recount continue um from the Republicans perspective and the irreparable harm from the Democrats perspective was stopping the recount um but wasn't the the justification of the justices about the irreparable harm to George W Bush was that he had already been declared President and if he's not now then it's going to make it seem like maybe he's not president it'll harm the country right in the sense that there will be on faith will be undermined in democracy no my understanding is that the irreparable harm was specifically to George W bush as a candidate so I mean so so Sam that's what Scalia says later um in public speeches in the actual opinion right the the harm that justifies the Court's intervention and let's just let me just add sort of one piece of context Bush versus Gore started as an emergency application in the Supreme Court but the justices understood that they couldn't end it that way so they actually turned it into a merits case they actually you know expedited the heck out of it um had you know what sort of passes for regular briefing on a hyper expedited schedule held oral arguments and everything I mean they they gave it the full you know the full nine yards um the the justification that the majority I would say invented in Bush versus Gore was the need to meet the so-called safe harbor deadline of the Electoral count Act of 1887 that it would be that it would irreparably harm Florida voters if Florida was not able to certify um a Victor buy the Safe Harbor deadline and that was what Justified stopping on the recount um you know we can we could we could probably do hours on on whether that was valid and persuasive analysis what I'll say is at least it was analysis I mean right there right they explained the damn thing um right contrasted with the you know last year's Alabama redistricting case where you know a 5-4 majority over a descent from among others John Roberts you know great fan of the Voting Rights Act um where a 5-4 majority allowed Alabama to use an unlawful congressional district map with no explanation whatsoever say I'm in a ruling that could very well have altered the balance of power in the House of Representatives let's talk about the the court and the uh the Purcell is it the Purcell um uh Doctrine is it uh that's what they call it right okay and this is um it seems to have been updated uh to uh when it impacts a potential Democratic win then uh we don't feel as worried about upending the laws but if we think that the Republican win is locked in then we're okay but will you give it a less tainted uh uh definition so I mean Purcell itself is a shadow docket rule I mean Purcell itself was a ruling in 2006 um which the Supreme Court decided without regular briefing and without oral argument and you know the principle at the heart of it is actually not that objectionable uh the principle is just that as we get closer and closer to election day federal court should be especially wary about any injunction that could confuse voters right that like in general we don't want to change the rules on the eve of an election in a way that confuses voters if you say it that way it sounds perfectly reasonable um right the problem is that the court has applied it in a manner that is so facially inconsistent um right in the Alabama case election day was nine months away um right and the primary was like you know four months away um that it really does smack a partisanship when Purcell is trotted out to justify blocking Lower Court ruins that appear to favor Democratic voters but uh not blocking lower court rules that appeared if they were Republican voters and you know the book tries to offer receipts um to show that that's exactly how you can characterize the Court's interventions and non-interventions in 2020. Sam with this all gets back to is there might be neutral plausible defensible reasons why the justices voted one way in case a and the other way in case b because they're not providing those rationales right it really undermines public faith that the neutral principles are what's doing the work here and I mean it also I think uh yeah I mean I I I I I think there it also could be the reason why that the the that they are using uh this uh method is because there are no uh principles uh at work here at least ones that people would think are are judicial in any way um talk about how the the pushback to this and how they have responded and by they I mean you know maybe samuelito um how they have responded to it but how the how the court has also responded to the claims um that they were over using the the shadow docket and whether that's also just not even their response is not inconsistent with the potential charge that they're deploying it when it's at most favorable for a republican Administration yeah I mean it's been found I mean it's been fascinating to watch one of the awkward things about writing a book about unfolding events is that events unfold around the book um but you know I think this is a this is where we see the court as a vein on it and and I do think that there's a growing divide between for example Alito on one hand who has been very critical publicly not just of the Shadow DACA criticism but of of me by name right um where the charge is that you know this is not really a good faith effort the charge is that this is just people who are unhappy with the results who are trying to further attack and delegitimize the current conservative majority you know I I think there are lots of pretty straightforward responses to that one is just to point out cases where I think the court reached the wrong result but the right way um and the flip side cases where the court I think reached the right result but the wrong way I mean those exist I talk about them in the book Sam the the bigger point is that um Alito increasingly doesn't appear to be in the majority on this so we have seen especially since late 2021 I think a real softening in the approach and the aggressiveness of Justice Barrett um and Justice Kavanaugh where now we're seeing more and more cases like the mipopristone case where some combination of Alito Thomas and Gorsuch are dissenting and the court is otherwise hewing to the more traditional norms for these kinds of cases so I guess it's it's a two-part story for you know for Alito and Thomas and Gorsuch these criticisms have been unfair they've been you know sort of bad faith efforts to delegitimize the court but for Barrett and Kavanaugh they appear to have hit hope where we're not seeing them vote for emergency relief as often where you know we're seeing efforts to actually take contentious cases that start on the shadow docket like the student loan cases and kick them on to the merits docket where there seems to be some awareness that this is actually not a good way for the court to run the railroad but is there are we comparing apples sense in that these cases that have been showing up in the emergency docket are not initiated by the federal government right in the way that they were during the Trump Administration um so that's there's some of them that's true but Sam some of them are that's not true I mean so you know the in the miphoprestone case the Food and Drug Administration was one of the parties that sought emergency relief from the country um right there have been a couple of immigration cases um the Navy Seals vaccine mandate that was the bind Administration asking the court to step in um the CMS health care worker vaccine mandate from last year that was also so you know I don't think it's quite so easy to say it's apples and oranges I think the broader point is that there's still some bad behavior but that maybe the high water mark is behind us right that the sort of the Crux of the Court doing whatever the heck it wanted on the shadow docket was you know 2021 um perhaps culminating with the sb8 ruling the ruling that refused to block Texas's you know controversial six-week abortion ban and I think what's telling about that is that you know I think it was after the sb8 ruling in September 2021 that a lot of folks first became familiar with the shadow docket as a phenomenon right you see sort of much more public discussion and discourse about it you see much more public criticism about it justice Alito gives his first public speech defending it um right not that long thereafter and to me there's a there's actually a bit of an optimistic message there which is that here's a context where the more the public understood what the court was doing and the more the public reacted badly to what the court was doing the more at least some of the justices seem to moderate their behavior um that to me is actually a a useful story about the moment we're in far more so than you know when Alito says anyone who attacks us is trying to delegitimize us um what are other mechanisms of Reform that we could pursue that are less contingent upon you know bad PR for the court which you know right or the justices feeling shame yeah I mean you know uh I'm not I think they're they probably all have their different lines in which that shame kicks in I suspect for um you know two or three of them that line is imperceptible to the human eye um but what uh uh what can we do as a society to structurally um you know because we're also having an accountability issue in terms of Ethics at this point and we don't seem to have a mechanism uh or to the extent that we do a mechanism uh is not being used to in any way call these uh these people to account who whose decisions now impact the lives of millions upon millions of people they just reversed a an individual right for the first time in 50 years you'd know better than I and maybe it's the first time ever uh that an individual right has been uh rescinded not not through the the shadow docket necessarily although the Texas case set up right I mean in many respects set that up um what can be done so I mean I think the ethics story is actually just the opposite side of the same coin um and the coin here is the lack of accountability so you know the the book starts with a chapter about the history of the Court's relationship with Congress um and how for so much of the course history really the first 200 years um Congress was actively involved and invested in regulating the Court's Docket in supervising the court in pulling levers you know to keep the court from getting too far um out of stream out of step and what has shifted so dramatically in the last really 35 years is that Congress has just gotten out of that ball game um and that's I think reflected in the rise of the Shadow docket it's reflected in the decline of the merits docket the court is hearing fewer cases these days on the Merit docket than at any point since the 1860s uh when we were you know just fighting a civil war um the ethics piece is I think consistent with that the notion that there's no no mechanism by which anyone other than the justices can hold themselves accountable for you know egregious personal behavior and so Sam I think that what can be done is yeah at the bottom at the very beginning anything to resurrect that relationship anything to bring back the idea that uh judicial Independence and judicial accountability are not mutually exclusive and that Congress actually has an Institutional obligation to exert a control to exert pressure on the justices not to reach any specific ruling in any specific case that's the Court's job but rather to keep the court just sort of generally within the lines of acceptable accountability that to me is where we've totally run off the rails and that's where I think the conversation has to start do you uh have a theory uh as to why there has been a um a diminishment of the number of merits cases I mean is that a function of like things are more contentious on the court is it that people are shy uh so I think some people are shy I mean if I were you know Progressive right now I'd be trying to avoid a supreme court review of of ideological cases like the plague but Sam I think it really comes back to you know the justices have there's no pressure on them to take any cases other than the ones they want um right there's no pressure on them to take any cases other than the ones that Advance the broader ideological project and so that means that like what's disappearing from the docket are you know technical cases that are of interest to lawyers but not necessarily you know in line with current social debates um direct appeals of criminal convictions especially in state courts have virtually disappeared from the docket and I think you know what that reflects them is just the conservative justices feel no obligation to any constituency to take any cases other than the ones that are you know their bread and butter and that had not been true and any prior point I mean until 1891 the court had zero control over its docket until 1925 it had virtual virtually zero control over its docket until 1988 it only had sort of partial control over its docket so you know to me these are all sort of telling the same story about a court that just doesn't feel beholden to anything or anyone other than itself that's where the public pressure story becomes important right because that's the most obvious entry point into actually trying to exert pressure for reform who had control over the docket in those uh Congress they would specifically have classes of of cases that must go to the Supreme Court or did they deal individually uh classes of cases so until 1891 if the Supreme Court had jurisdiction over a case it had to hear it um right until 1925 that was true for any case coming from you know with a couple of sort of scatter shot exceptions I mean Sam it's still true today it's just true for such a small category of cases that no one knows about it right the there are a small set of campaign finance and redistricting cases over which the Supreme Court today is still required to hear appeals it's just that's like one case per term and that was the norm until not so long ago so restoring this Dynamic bringing back the idea that you know the court really operates not at the whim of Congress but you know with the sort of ongoing Dynamic inner Branch relationship with Congress I think is really uh sort of structural way to get at a whole bunch of these different flash points yeah it's important to I think for people to be aware of just how much um influence or how much of a role Congress has in these things that we uh we have come to understand the Supreme Court is like sort of standing above on uh on you know Mount Olympus without any um uh constraints that are allowed by Congress and that's just not the case Steve laddock uh chair in federal courts at the University of Texas school law the book is Shadow docket how the Supreme Court uses stealth rulings to a mass power and undermine the Republic we'll put a link at majority.fm thanks so much for your time today really interesting thank you guys for having me

Channel: The Majority Report w/ Sam Seder

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Keywords: Sam Seder, Majority Report, Emma Vigeland, Matt Lech, Politics News, Democrat, liberal, progressive politics, left politics, Seder Majority, shadow docket, shadow docket explained, supreme court shadow docket, what is the shadow docket?, the supreme court and the so-called shadow docket, in the shadows, emergency docket, shadowdocket, tv shows, news show, hachet books, steve vladeck, hatchet books, hatchett books, hatchette books, stephen vladeck, hachet book group

Id: hNr2JxgVoN4

Length: 42min 31sec (2551 seconds)

Published: Sun Jun 18 2023