Stephen Vladeck — The Shadow Docket

okay we're gonna start because frankly we just can't fit any more people in here this is uh this is terrific I guess there's a lot of interest in the Supreme Court for whatever reason anyway good evening uh welcome to politics and Pros I'm Brad Graham the co-owner of the bookstore along with my wife Melissa Muscatine and we're very delighted to be hosting law Professor Stephen vladick who's here to talk about his new book The Shadow docket how the Supreme Court uses stealth rulings to a mass power and undermine the Republic you can't really tell where Steve stands can you um Steve of course holds a chair in the law school at the University of Texas and has argued more than a dozen cases before the U.S Supreme Court the Texas Supreme Court in various lower Federal civilian and Military courts he also appears on CNN as many of you I'm sure know he appears there as a supreme court analyst and he co-hosts the award-winning National Security Law podcast some fans out there and additionally he writes and edits one first a Weekly Newsletter about the Supreme Court so clearly he's followed the court closely for a number of years and thought and written about its work in the shadow docket he examines the Court's use and many would say abuse of a process under which the justices dispense many cases outside of how we we tend to to think they operate and that is they they issue decisions in these cases without extensive briefings without comprehensive oral arguments and without signed opinions that detail their reasoning this alternative behind the scenes process has existed in one form or another for many years but historically it dealt mostly with non-controversial matters and existed largely to help the court manage its large caseload in recent years though it's been employed differently and with much more significant impact by the Court's conservative majority Steve recounts how this has occurred and how it's helping the justices shift American jurisprudence to the right across a wide range of subjects including abortion Asylum election rules redistricting Maps executions Public Health measures the Clean Air Act and religious liberty it was a conservative constitutional law professor at the University of Chicago who coined the term Shadow docket eight years ago and Steve notes the label was met then descriptively not not pejoratively but as Steve argues persuasively in his book the mounting number and significance of these unexplained unsigned rulings is now truly alarming this practice not only exacerbates perceptions of the Court as engaging in political partisanship and failing to provide adequate guidance to lower courts and government authorities but most disturbingly Steve contends it's undermining the Justice's own legitimacy and threatening long-term institutional harm to the court uh Steve's book is important and timely and written clearly and engagingly for both lawyers and non-lawyers alike so it's uh it's truly worth reading and conversation with Steve this evening will be another very close Observer of the Court Mark Joseph Stern who's a senior writer for slate magazine a mark holds a law degree from Georgetown University and is a member of the of the Maryland bar he's also the author of American Justice 2019 which examined the term that began in the fall of 2018 with Brett Kavanaugh's confirmation and saw the emergence of John Roberts as the new median vote among the justices although that singular swing role I guess didn't last very long for him please join me in welcoming Steve and Mark thank you so much everybody Steve and I are going to put these chairs to their ultimate test tonight um thank you so much for coming out it's really great to see all of you this is an incredible showing I've been to a lot of events here and I have to say this is the most packed house I've ever seen um I'm really they saw the cover and they thought it was a crime Thriller um I'm glad everybody is so riled up for a book about why the Supreme Court is doing bad things um that is something that I will say as a journalist I have struggled to get across for many years at least earlier in my career but over the last few years I would say um we've been seeing a lot more folks like Steve really come out and explain this problem that we have specifically about the shadow docket and talk about it in ways that everybody can understand even though of course Steve is a brilliant Professor who could be having these conversations in the Ivory Tower instead he chooses to come down and talk to us about it for which I am very grateful so Steve I'm I'm gonna ask I'm just gonna tall I'm just going to throw you right into the fire Steve so the supreme court press Corps of which I am a member is having kind of a moment of Reckoning right now um we have failed to investigate the justices as public figures and government servants um and failed to expose their ethics violations I think a lot of us were frankly uh afraid to be called cranks and partisans by the right and to lose access to powerful people who would be offended by such reporting but you my Brave man you have been sharply critical of the Shadow docket for a really long time and now you have written a whole damn book all about it and I'm curious how did you decide that it was worth the many risks of writing a book as candid as this one to educate the public about the problem of the Shadow docket wow you weren't you weren't kidding about jumping right into the fire um so I guess I I really decided to write this book I think it was late 2019 or early 2020 um which was sort of you know the middle of the I would say the sort of the up slot the upslope of the mountain for the Court's behavior on the shadow docket um it really reaches I think a peak in like 2020 2021 and part of it was because I would be ranting on Twitter as usual um about something the court had done in one of these orders that was just wildly inconsistent with whatever the relevant standard was the Precedence Etc and there would be a lot of people who would respond like you know can you explain this for non-lawyers you know the the court says oh you know we're we're staying in this injunction you know what does that mean I was like well actually um so it seemed to me that it actually was really important not just to write about the shadow docket but to make that part of the Court's work accessible to the folks who don't spend their days and nights thinking about you know the all Ritz act um and part of that really was a story not just about sort of explaining what the current Court was doing but about putting it into historical context so that when you know Justice Alito goes to Notre Dame law school in September 2021 and gives a speech about how this is what we've always done you know where the receipts to say actually that's not true and so the sort of the the I don't the sort of the Insight was that it ought to be possible to tell a story that's accessible to everyone about what is new and different about the current course behavior and why those Novelties and differences matter so you've invoked our dear friend Justice Alito so I just have to ask did you send him a copy of the book um I did not um opportunity I mean there are a lot of people in this room who have access to the males um so I am I am often as as I know you are um criticized and sometimes caricatured um by folks who assume that I am coming at this simply as a progressive who means to attack the conservative justices um and I don't like to lean into that charge because one I don't think it's true um and two I don't think it actually advances the debate so I try to avoid at least the appearance that I'm literally trolling the justices who I'm criticizing and I feel like if I sent the book to the justices who I criticized the most in the book that might not be consistent fair enough disappointing but fair um so let's stick with Justice Alito for a moment as I know everyone wants to do you may not want to troll him but he likes trolling you um you mentioned that Notre Dame speech in which he mentioned you and criticized You by name um perhaps not everyone in this audience had the immense pleasure of watching that speech as I did and so I was wondering if you could talk a little bit more about why he chose to give that speech at that moment in time what the gist was and and why you became a part of it um sure um so to put this all in context because I know there are a lot of folks in the room who aren't necessarily lawyers right so um the part of the Shadow docket that is the real source of criticism in the later chapters of the book is how the court handles what we call emergency application so basically when a party goes to the Supreme Court at a very early stage in a case and says hey Supreme Court we need you to do something to the status quo to either freeze the status quo or unfreeze the status quo for however long it takes this case to work its way all the way back to the court which could be years I mean it could be months years whatever um I really think the inflection point in public awareness of and criticism of the Court's Behavior and the emergency side of the Shadow docket was the sb8 ruling was in September of 2021 when a 5-4 majority refused to intervene to block Texas's six-week abortion ban um nine and a half months before the decision in Dobbs at Overworld wrote when Roe was still a good law and I think that was the first time I suspect some of the folks in this room became familiar with the con the term Shadow docket with the idea of the Shadow docket um and it really you could there's the Chicago policy review has this study that basically shows like public discussion shifts radically and expands dramatically in the days and weeks after that ruling to which me writing a book I'm like this is both amazing and terrible right you know um Justice Pagan's dissent in that case was the first time a Justice had called out the conservative majority for using the shadow docket as such she says uh today's decisions emblematic of this Court's Shadow DACA decision making which every day becomes more unreasoned inconsistent and impossible to defend um I was like there's the epigraph for the book um but I think there was this Groundswell in the days and weeks after that ruling the Senate Judiciary Committee held I think a pretty visible hearing about the shadow docket and the abortion ban uh the Wall Street Journal editorialized about it and I think all of this impelled Justice Alito to push back and so he gave this speech at Notre Dame law school that originally wasn't even going to be public and after there was some pressure they streamed it live on the internet although there's no public recording anywhere but there might be private recordings some of us know how to screen record um but you know I I think the Alito speech was also a bit of an inflection point because it you know by going out publicly and defending what the court was doing I actually think he legitimized the conversation um and made it like an appropriate thing for us to be talking about even as he's saying like just because using the term as an attempt to delegitimize the court um you know I disagree vehemently with what he said in the speech but I think giving the speech actually furthered that increased public awareness of and and sort of Spectra of it and I don't think it's a coincidence that the there's a there's a really important opinion by Justin Cody Barrett that Justice Kavanaugh joins um in a case about the covet vaccine mandate for healthcare workers in the state of Maine where Barrett basically says hey just because you've made out our criteria for Grant and emergency relief doesn't mean we actually have to Grant it um that was October 29th um right and that's over descends from Thomas Alito and Gorsuch and so I asked I usually think that there really is this remarkable moment and Alito speech is part of it where the justices become very aware of this story and at least some of them start reacting to it so you you've brought up abortion as one of the inflection points here can you talk about some of the other issues that were percolating up very rapidly toward the court that sort of led to this sudden rise of the use and abuse of the Shadow docket just over the last couple of years sure I mean so the the book tries to basically pitch the the sort of the the first I mean there are lots of inflection points I guess the book has too many inflection points um but the if you look at just sort of the data the real sort of uptick starts um pretty early in the Trump Administration not because of anything unique to the Trump Administration but because of you know especially aggressive behavior by the Trump justice department um so just you know a data point that I think is I don't want to make too much out of it because it's only one small slice of of what's happening but um across the George W bush and Obama administration so two slightly different two-term presidencies right the government goes to the court for emergency relief a total of eight times so once every other year um and seven of those don't even produce a public dissent I mean those are generally not especially divisive cases Trump goes 41 times in four years and the court grants 28 of those right in whole or in part and most of those grants are over Public Defense so you know I think part of the shift is just about the Court's response to Trump applications many of which were in response to either Nationwide injunctions against Trump immigration policies or injunctions against the efforts to revive Federal executions right or other Trump initiatives and so you know there's there's this possibility that that was just a trump-specific phenomenon that it was like this evanescent thing where the court is just reacting to lower court judges Behaving Badly um even though the lower court judges happen to be from across the ideological spectrum and one of the things that's really remarkable is that when you get to January 2021 and Beyond the story continues right it continues into the body Ministry operation it continues in a whole bunch of covid cases in 2020 and 2021 that have nothing to do with Federal policies so you really see different Pockets where the court is using emergency applications to intervene and to sort of affect all of us in ways that were like once a decade right before the mid-2010s and in ways that before really 2015-2016 you only ever really saw in capital cases in the death penalty context you ask folks and I'm sure there are some in this room who clerked on the court in the 1980s or 90s or 2000s you know what do you remember of the Shadow DACA did say was the death docket right all we dealt with were last-minute applications for stays of execution or unstable executions that's the shift in like the mid-2010s is away from the death penalty specifically and toward every federal policy and many state policies as appropriate fodder for these kinds of orders you have a chapter perhaps my favorite chapter hard to pick that's titled read the opinion and I'm wondering if you could just give us the back story there and why that title is so damn good if you had asked me which chat if I had to guess which chapter was your favorite chapter that that would have been my guess um so um it's chapter seven of the book it's where I started to try to tie all the threads together because the book I mean one of the things I try to do in the book the first half of the book is really meant to speak to everyone um and it's meant to contextualize the court and its docket and its history and then it gets a little more sort of pointed and critical and first person right toward the end um and so chapter seven is where I think you really get to the the meat of the critique um the read the opinion that is a quote from a speech that Justice Amy Cody Barrett gave at the Ronald Reagan Presidential Library um in April 2022 um and you know Justice Barrett gave the speech she knew as we would soon find out that there were these fairly divisive rulings on the merits docket coming down the pike in Dobbs in Bruin in the West Virginia versus EPA environmental case um and she says you know hey before you judge us um before you dismiss us as her words not mine partisan hacks um right um she says don't just listen to lovely journalists like Mark right read the opinion she says right decide for yourselves if we have provided analyzes not not necessarily because you're going to agree with our analysis but maybe you'll at least agree that it's analysis and that there are principles there even if they're not your principles um and I thought that was actually a very consistent position if you look at how the court has talked about its moral Authority historically this is a common theme in Casey The Joint opinion of Justice's um O'Connor Kennedy and Suitor right talks about how the Court's legitimacy Springs from its ability to provide principal justifications for its decision making so two days later right two days after this speech there's a 5-4 ruling on the shadow docket where the court puts back into effect a trump-era environmental regulation that makes it I would say easier for certain types of power plants to pollute nearby waterways and there was no opinion to read um right and so you know part of what I find remarkable about the whole sort of Arc of the conversation is that there's a degree of I think tone deafness um on the part of at least some of the justices about this kind of critique even when in some of their other Behavior they seem to be reacting to it are you suggesting that conservative justices might be out of touch with the American people or not care what they think about the job that the Court's doing was that a question um so I mean I listen I try really hard in the book perhaps too hard um and I got criticized for this from other other sides of the of the aisle um I don't know what I meant by that um um I I don't you do not have to think that any of the justices are acting in bad faith right to still think that a lot of this behavior is problematic um I suspect there are folks in this room who I would never persuade that Justice aren't acting in bad faith and that's fine I mean it's a free country um except maybe for now parts of Texas um I still have tenure for the moment um but but I do I mean I I really want the book you know this some of the some of the book is provocative right but I really do want the book to be attractive and appealing even to folks who are willing to believe in the sort of the better Angels right of all of the Justice nature because you know part of the story here is that I think at least some of what happened on the shadow docket starting in 2017 was not necessarily malicious it was just unconscious um and it was just oh we can do this thing and we can keep doing the same and we'll just keep doing like I actually think there was no coordinated response as opposed to what happens on the merits docket where I think there's a lot more strategy and agenda setting um and that's where I think the court just sort of dug itself deeper into a hole so what would you say to someone who comes up and says Steve loved the book want an autograph but it kind of seems to me like I don't care if the court takes away the right to abortion in a one paragraph order in the dead of night or in a 90-page rant by a misogynistic Justice there's they're still taking away the right to reproductive autonomy why should I care so much about process when the outcome is bad in either way um because one is an exercise of judicial power and one's an exercise of political power um right because you know the the court is going to hand down wrong-headed substantive decisions for as long as the court exists um you know find me an era of the Supreme Court where you thought every single decision the court handed down was right and I'll find you like three months in 1965. um right and maybe not even that um exactly and for every lochner there's a Jacobson um that was okay five of you got that joke okay um so I mean this is where I I mean I am I'm a process person I am a law professor who teaches civil procedure in federal courts um you know where you stand is a function of where you sit um but I really do think that the court following its own appropriate processes and handing down decision that we just disagree with right is actually innate in what the court is right in ways that you know sort of hand them down unsigned unexplained orders that affect all of us that change the status quo where the best explanation for the behavioral pattern in the aggregate is the partisan valences of the dispute and not any coherent through line of legal principle right that's not judicial power on the Court's own articulation of what judicial power is and so I would say yes one is worse than the other um and you know this is I might get kicked out for saying this but this is where I think the sb8 decision is worse than Dobbs expand well because right I mean the so in the sb8 context right the court is um allowing a state to effectively get rid of a right the court has not yet gotten rid of right um through procedural contrivances that everyone knew were contrivance is um by relying on you know sort of the Specter of unsettled procedural questions that the court could have settled um common at the same time coming in a moment where the court had spent most of the last 10 months repeatedly intervened him to block State covet restrictions in context in which there were procedural questions or even procedural obstacles that the court runs roughshod over um right and that to me is a real problem for the court as an institution that goes well beyond how you interpret the right to abortion in the Constitution right and you know don't take my word for it I mean right this is not like one of the con you know it's just progressives um no one of the dissenters in many of these cases is John Roberts right and chief justice Roberts dissented in the SBA Casey descents in the Alabama redistricting case in February 2022 he dissented in the clean water case where there was no opinion um why is he dissenting when he writes it's he's what he's saying is like you know I'm not sympathetic to the position of the liberal justices but I do think that there's a right way and a wrong way for us to be active so it's very clear from your answers tonight and and from the book that you care a lot about the court that the court is an Institute an institution that you care deeply about and so when it does this kind of fly-by-night shoddy work it makes you tear your hair out I want to read a quote from the book you say we need not just a supreme court in name but a supreme court in reality a tribunal that is legitimate and that is perceived as legitimate by a sufficiently large body of citizens I think a lot of progressives today would disagree and I'm curious what you think is so important about the court and its legitimacy that it's crucial for people like you and other progressives to try to shore up that legitimacy at a time when the court is rapidly Shifting the law to the right and also seizing more and more power from the other branches for itself um but how do you really feel um so you know there are ways to design constitutional systems that don't have a very powerful Supreme Court in them um and their example as examples abound I mean uh you know Britain um I think is a pretty good example of a pretty decent constitutional system with a not very power I mean can you I mean well you can probably name Justice on the UK Supreme Court but I don't know that there are many people in the audience who can um our system is not that system right our system is structured For Better or For Worse in a way where we really do depend upon the federal courts in general and the Supreme Court in particular as like the last bulwark against tyranny of the majority um or The Not So majority as the case may be um and you know that may not be a comfortable thing to say at a moment where these justices are the bulwark um but I mean you know I'll just say I mean look at 2020 I mean look at what happened in the 2020 election context where there were efforts by President Trump and his supporters to get the federal courts in general the Supreme Court in particular right to get in the middle of the election and you know muck everything up um bless you and the court didn't right I mean the court you know I think to its credit I mean yes this is kind of like a participation trophy but you know um the courts did out um right and I think that that's a pretty powerful like imagine how much worse that would have been if the court had given any daylight to any of those lawsuits to and to to Texas's you know fakakta original lawsuit against Pennsylvania and three other states um right so I guess you know I I yes it's a little bit idealistic um you might even call it a bit naive but I guess I just think that if we have a repeat of 2 000 at some point in the near future where the entire presidential election comes down to a single state and where the single state is basically a mathematical tie right um and the Supreme Court is asked to resolve some kind of dispute I think it's much better for the country that the court that resolves that dispute is legitimate then not so you're saying you want another Bush vigor I'm so I'm saying I want a court that has The credibility to issue another Bush versus core um versus a court that doesn't right and I think the The Perils of a court that doesn't have the credibility that the Supreme Court had and then I think unfortunately abused right in December of 2000 are pretty ominous um because you know if if the court can't decisively resolve that who will so we're full of sunshine tonight well let's know let's let's shine some sunshine into this bookstore because I think one of the things I love about your book is that it does kind of have a list of things for Congress to do to fix the problem it's not just a list of complaints and you know I think um this really ties into current events that many people in this audience may be paying attention to um Harlan Crowe Clarence Thomas he loves the book uh Clarence Thomas's billionaire benefactor Harlan Crowe recently took time out of re-reading his signed copy of mineconf to send a letter to the Senate Judiciary Committee declaring that it is literally unconstitutional for Congress to investigate his friendship with Clarence Thomas and Harlan Crowe's reasoning echoed another recent letter by our dear friend Chief Justice John Roberts suggesting that it would violate the separation of powers for the Senate Judiciary Committee to call him to testify about judicial ethics seems to me like both Mr Crowe and chief justice Roberts might need a refresher on all of the ways that Congress has and can regulate the court in the past I'm wondering if you could remind us on some of the ways it can do that um sure I will just say in partial defense of Chief Justice Roberts I think what he said was it would raise separation of powers concerns I say article three um so um I this is actually I mean you know the the book is is specifically about this very nerdy thing right emergency application to the Supreme Court but if there's a broader sort of um Vibe sort of a Zeitgeist um right it really is the sort of the breakdown of the separation of powers and you know if you tell the history of congress's regulation in the Supreme Court you know let's just check off some fun moments so 1802 Congress says Hey Supreme Court don't even bother meeting this year um you know we don't need you um it's like the 1904 World Series um never happened um see seven of you got that joke um right um uh 1868 right the court is hearing a really important case about the constitutionality of reconstruction um keep in mind they're hearing it in the old Senate chamber right which is where the court sat until 1935. um Congress says you know what we don't want you to decide this case it takes jurisdiction away the Supreme Court says yep you can do that um right the court the justices had to ride the circuit right sometimes on Horseback um all the way up until 1911 even though by that point it had long since outlived any usefulness why are we sending the justices out around the country to ride circuit to remind them that you know Congress pulls the levers um my favorite example 1964 Congress votes a pay raise to every single federal judge a long overdue pay raise but the justices get the lowest pay raise um because Congress wanted to send a message that was unhappy with some of the Court's decision-making um right so like the you know some each of these might seem small but like if you take them in the aggregate there are lots of examples of Congress actually regulating the docket of the Court the travel of the justices except on Yachts um right the sort of the budget or salary of the courts long as Congress was not diminishing the salary which article three says it can't do um I think what what the chief Justice's letter really says to me is that like we have forgotten all of that and we've just gotten out of the practice of thinking that part of congress's job is to actually pull levers and exert leverage over the court much the same way as you could say about Congress and the executive branch um right over much of the last 30 40 50 years and I guess you know just I I I I feel bad sort of coming to DC and not quoting the Federalists at least once um but so Madison and Federalist 51 says ambition must be made to counteract ambition plenty of ambition in the court um not really a lot of ambition in Congress to counteract that ambition right now and and why do you think that is you say in the book we are in the longest period without legislation altering the Supreme Court's Jurisdiction in the nation's history why are we in this dry spell and what do I have to do to make it stop DC statehood yes um yeah okay it means something to us Steve I used to live here um used to so I will just say when we when we moved to Texas in 2016 um Karen had a funny line about how when people said you know your Center is going to be Ted Cruz right and her response was we'll have a democratic center before you will boo Karen that burns was she wrong um this is that burns and was she wrong Welcome to My Life um so um I think the the to me what part of what has happened is sort of a broader story that's not about the court at all which is the the shift from the separation of powers to separation of parties um right the extent to which Congress now is sort of out of the business of doing institutional things for the sake of doing institutional things I think you could trace that in turn to polarization um right gone are the days in which there are Liberal Republicans who are to the left of conservative Democrats um but that's true on the courts too and so you know I think part of the question is how do we tell a story about the Supreme Court that doesn't just have everyone retreating into their partisan camps right how do we tell a story about the court as an institution that actually needs fixing and needs um input from the other branches in ways that are not simply meant to destroy the power of the current conservative majority and I think that's a conversation that may be not as exciting or thrilling or salivating for folks who dream of four new seats on the court to be filled by a Democratic president I'd put you in one of them um to be clear that wouldn't solve the problem but I mean I mean I I it wouldn't I mean the right you could put you know I mean you could put William O Douglas and Hugo Black and I don't know Thurgood Marshall and pick them um and it wouldn't solve the problem of the courts on accountability it would just make it less visible that the court was not accountable right and so to me like this is getting a bit beyond the book but I think part of the the undertone of the book is you know the court was even when it was doing lots of bad things for much of its history it was accountable um and a lot of what we're seeing today is a court that's just not accountable at all and just one really really silly small example of this um this term right the court we talked about the shadow doc let's talk about the Merit stop it for a second the Court's gonna hand down maybe 57 decisions on the Merit stock at this term it's going to be the fourth term in a row that the court doesn't get to 60. um before 2019 the last time the Court's docket had been that small was 1864. um now you guys might be saying great decide fewer cases um I would prefer a court that decides five cases a term um but actually what's missing is the court acting like a court right what's missing is those parts of the justices docket that are not high profile socially divisive statutory or constitutional issues where historically the court actually you know made it made its BET right or it really sort of was able to you know be a court and not just an arm of political power so the disability runs all through the book um but of course I could quote you a thousand different shoddily written Wall Street Journal editorials right now that say the court is not supposed to be accountable it's supposed to sit above and beyond the other two branches of government what is what is your response to that line of thinking which is very powerful on the right right now no I mean I mean listen you can I am you know as as progressives go I'm probably about as firm a defender of judicial Independence as there is um Independence is not anathema to accountability right and and the and it never has been I mean right the each of the branches are independent that doesn't mean they're unaccountable um the deal we made the deal the Constitution makes is we're going to have unelected federal judges Who Remain accountable through all of these other levers not that we're going to have unaccountable judges who can do whatever the hell they want um and those levers are political levers to be pulled by the political branches who are themselves politically accountable if you look at the Court's history there are lots of examples of political pressure actually exerting itself on the court and pushing the justices to change their ways like that's not bad that's the system and so I think it's actually really dangerous to go down this road where accountability is somehow inconsistent with Independence that's not what anyone thought at the founding it's not how anyone acted for the first 150 175 years of the quarters institution and I think it's it's conflating two very different things do you think that pursuing ethics as uh Senate Democrats are trying sort of to do right now um is is a valid and legitimate way to increase accountability for the court or do you think it's really just a smoke screen for Democrats who are angry with the Court's decisions and want to strike back any way they can um yes um no I mean I I think right the if you talk I mean you know it depends on who we're talking about right so um I would you know there are there are bills that I think are designed simply to rein in the court for the sake of raining in the court and then there are Bill's like the one that Senator King and Senator murkowski introduced the the king murkowski bill it's this remarkably um sort of I would say uh I was going to say milk toast but I feel like after events of the last 24 hours I can't um right um but it's a very middle of the road bill right the murkowski king Bill basically says Hey Supreme Court you need to adopt a bunch of rules right we're not going to tell you what the rules are you tell us what the rules are and you need to hire someone who's actually going to enforce those rules and you need to have that person who you've hired report to us when justices Break The Rules just in case we need to impeach them right like that's basically the bill um I don't see how that's remotely unconstitutional right um and yet even that right is pilloried by you know right-wing columnist as a clear reference of the separation of powers that bill strikes me as a serious if fairly you know soft punch in attempt um just to say hey justices we want you to do this thing we're not going to tell you how to do it we're just going to tell you that you have to do it and that seems you know if that's unconstitutional then we might as well just get out of the business well and and yet it was pilloried as you say it stands no chance of passing the Senate but you're also up here sort of preaching the value of not retreating to our partisan corners and of coming together to find solutions that aren't based in politics how do we Square those two things how do we Square the ideal of everyone coming together to actually restore uh judicial accountability as the framers envisioned it with the reality that when uh an independent and a moderate Republican introduced the kind of weakest ethics bill you can imagine it gets laughed out of the Senate and mocked ruthlessly by right-wing columnists so I'm a lawyer not a political scientist uh not my problem no um so I I think by having conversations like this I mean I don't mean to be trite like I think you know I think the the principal goal of the book is to is to elevate public conversation about the Supreme Court is to try to affect the discourse in a way where we're not just falling into the same Dobbs bad Roe good um framing of all conversations right and I think you know if there are folks who are capable of being persuaded that it's in everyone's interest no matter where you sit on the political Spectrum for the court to generally be perceived as a healthier higher functioning institution a more responsible player in our system than maybe the the change is incremental maybe it's small maybe it's just granting emergency relief less often um or not doing it at 11 58 PM so Mark can sleep um right but but it's changed and you know I think I I guess I I come from the the line of Mets fans um who believe that change starts with very small things like a new owner um right and and and that you know better to sort of try different ways of changing the debate than just giving up just a quick note in a few minutes we're going to begin q a we would like an orderly process there is a microphone up here next to the pillar if you can't see it you will when you approach please form an orderly line at the microphone at your leisure and we will get to as many questions as we can before 8 PM although if I'm keeping with the theme of the book my answers will be unsigned and unexplained so I I want to bring this back to to close where I began which is like you know this is obviously a huge issue it's making a splash your book is a bestseller can we can we get a round of applause for that yeah I I think that says more about the times we live in than the book uh take some goddamn credit Steve for Christ's sake it's a good book so I'm in the media I'm covering this stuff I gotta say when it began it was a struggle to figure out how to explain it to people I think that a lot of my colleagues in the supreme court press Corps also struggled this was a relatively new phenomenon you said you're a law professor uh not a political scientist you're also kind of a journalist but just pretend you're not sit on the sidelines and tell us like what grade do we get in reporting on the shadow docket are we doing a good job explaining this stuff are we conveying the importance of it to the American people are we dropping the ball um is this law school grades College grades like Elementary School grades the most generous curve that you've ever given um so I think improving um I'm reminded of the assessment that our four and a half year old just got for you know trying to do cartwheels inside the classroom um you know maybe we should work on not doing cartwheels inside the classroom um so I I actually think I mean this is first of all Mark I put you I'd be at the Leading Edge of the press Corps when it comes to being reactive to this stuff I I think that there are there are two things to say the first is I think the Press Corps has gotten the message um and the book actually tells the story back to the the Clean Water room from April 2022 where Barrett Was the dispositive vote and John Roberts joins the three Democratic appointees in dissent um Roberts wasn't just at the center he actually signed on to Justice kagan's descent and you could hardly see a story about that ruling that didn't flag the significance of John Roberts joining Justice Kagan and criticizing the shadow docket as such um that was a far cry from two years earlier right so I think there's been Improvement I think there's a larger problem that you've written about the dolly has written about that you know Jay Willis has written about which is you know the supreme court press core is largely dependent on the court to cover it in ways that I don't think we would see the White House Press Corps being dependent upon the White House and Congressional press Court Etc and I think there's a there's a stickier question there not about how the Press Court describes what the court is doing but about how the Press Corps sort of prioritizes describing things that the court isn't doing um so I want to say right the Court's going to decide 57 cases this term right in a whole bunch of those the court will have either only granted some of the case or will have Rewritten the questions presented like that should be part of stories about these decisions right like the court you know when when you get out like the court was unanimous in 14 cases yes the court that chose the cases it was going to hear chose some cases that were easy like you know again participation trophies so I I think there's progress I still think there is a way in which the coverage of the Court especially as we enter the big month right June tends to really get distracted by the bright lights where there there's process stories where there are institutional stories to tell even in the context of the affirmative action cases um like the good example on the affirmative action case is um the court rushed the affirmative action cases onto its Docket in the North Carolina case the court granted certiorari before judgment leap frogging over right the fourth circuit that should be part of the story right that like hey here's a court that was in a big hurry to decide affirmative action I'm not sure it will be except now it'll be in yours um I could ask this guy a million more questions but we've already got a fear assembly long line everybody give it up for Steve and now ask him the hardest questions you can think of first up all right yeah I've ever start off with a nerdy question um at the very beginning you mentioned that the uptick in the use of the Shadow docket uh at least started as in part a response to the to uh Nationwide injunctions that were being issued primarily by liberal judges striking down immigration bans um so my question is to what extent do you think the uptick in the shadow docket correlates with the uptick and the uh issuance of Nationwide in Junctions by both liberal and conservative judges there's yeah it's a great question um so I think there's at least a loose correlation um but part of the problem I mean one of the things about writing on this book is I really try to anticipate and sort of fold in all of the attempted justifications right like this is why this happened as opposed to this um so Nationwide injunctions these are right injunctions that are not just limiting the the defendant from acting against the plaintiff but they're actually limited on the defendant from acting against anyone um right probably more accurate to call them non-plaintiff specific injunctions but even the lawyers would you know fall asleep at that term um the problem with sort of thinking that it's about the rise of Nationwide injunctions is twofold one even in the Trump cases I said there were 41 applications fewer than half of those were about Nationwide injunctions um right a bunch of the Trump cases were actually about more tailored injunctions or subpoenas or other sort of Demands that were not the the Nationwide injunction bugaboos um two um again this is where I think putting the whole thing in context matters if it was really about hostility Nationwide injunctions you would have expected that hostility to persist into a democratic Administration um Justice Gorsuch and Justice Thomas both wrote separately in different cases during the Trump Administration about how Nationwide injunctions are a real problem and we ought to take up a case where we can limit them the next Nationwide injunction against a Biden policy that either of them vote against will be the first um so you know again like the the explanation falls apart when you look at the justices Behavior across multiple right across multiple valances um I do think Nationwide injunctions are a problem because what they do is they raise the stakes of a lower Court decision in ways that you might not see for a plain vanilla injunction but I don't I mean the covid cases are just another whole set of cases that weren't nationwide injunctions at all and so the Court's Behavior I think is sort of not directly a response to and not entirely about Nationwide injunctions as such okay thanks hi hello uh so first just want to say I want to thank you for being one of the only lawyers on Twitter who doesn't make things worse when you tweet about student debt so thank you um and I guess my question is what role has Federal Federalist Society had through their roles on law schools and grooming judges in creating this whole mess and why are they welcomed at law schools just an easy question not political at all no um um so okay um I I think let me let me sort of take the first question and figure out how to not answer the second um so to the first question I mean I think there's no question in The Narrative of the book I think is consistent with this that you can see the sort of the problematic behavior of the Court accelerate um first in 2018 when Justice Kavanaugh is confirmed to replace Justice Kennedy and then especially in 2020 when Justice Barrett is confirmed to replace Justice Ginsburg um I don't know that that has anything to do with the federal society as such um but rather is just a solidification of a majority on one side of the biological Spectrum I I can't prove right that if things had gone differently in 2016 and Merritt Garland was now the median vote on a 6-3 liberal Court um right that we wouldn't see some of the same behavior um so I don't think there's nothing inherently conservative or ideological about what the court is doing I think it's just you know um to to quote Lord Acton power corrupts um to the point about sort of law schools I mean I you know I listen I teach it the um the flagship Public University in the state of Texas um one of the things we have going for us is intellectual diversity and it seems to me that it's incumbent upon us especially these days to um hear all points of view so that people can go and say why those points of view are completely fakakta um and you know this I mean I I go through this every time you know I'm invited to speak at what our you know UT has a very robust and very good fed sock chapter and they're kind enough or insert adjective enough to invite me to a bunch of their events um and I will go to UT events um and debate almost anyone I won't go to non-ut events because that's my obligation to my students um and I think that's part of the job wow okay you guys are an easy audience um how if at all do you think this book enjoy sorry oh yeah I'm one of his students um um your grades coming I have to stop myself from asking when it is but um so how do you think this book and kind of your role and your viral criticisms of the Court um has impacted your role as an advocate before the court um yeah um well I mean my record before the book was 0-3 so um I have nowhere to go but up um so you know listen I think I this is I mean you start this is Mark's first question in a way right like I I think um I'm I am a scholar and an academic first um and an advocate second um and I have the luxury of not having standing clients for whom I have to take institutional positions and so you know I get to pick and choose my cases based on cases where I want to be involved in where I believe in the thing we're doing um and I'll just say if there are justices who are like oh we should grant that case except that vlodix on the petition I think that says more about them than about me um you know but but maybe that's naive I don't know all right thanks yeah hi welcome back um first off we're down one nothing mid third so Mets fans man what else is doing yeah uh but my question is uh in the book and here tonight you talked a lot about what Congress can do is there anything that chief justice Roberts can do to police his own house or is he just gonna stand by and let everything go like the rest of everything um so um chief justice Roberts is not uh in this context a parent of children right um he is and he is first among equals right he has no authority to tell the other eight justices what to do about anything other than opinion assignments which is you know important but limited in this context um he has the bully pulpit which I don't think he's used very much um right um I'm sure that his job is a lot of fun right now um I'll just say you know so so I think the the the sort of the short answer is there's not much he can do to coerce the other eight justices there are examples he can set there are things he can do to try to lead and I will just say not that I am suggesting this but it is worth saying out loud um that if he really thinks that the future of the court is on the line he can resign um and give this you know give the center seat to a Democratic president with a Democratic Senate um [Applause] okay yeah and the Mets are going to win the World Series you gotta believe um I I would not put money on either of those things happening but so the the point is just that like you know his principal power is what he can say right both behind the scenes and publicly not what you can do and I think you know the question is how he chooses to wield that power hi um one of the problems it would seem uh about restoring the Integrity or the sense of public perception of the Integrity of the court is that the uh conservative majority has in particular weakened the political the the the Congress through its uh uh uh watering down of voting rights and gerrymandering and so on it albeit that sure there are some democratic states that have gerrymandered but it's predominantly uh indirect one of them's a couple miles that way or a couple feet that way yeah so um it seems in a sense it seems that the that the Roberts majority and Roberts even before he had the majority that were working um on behalf of insulating themselves from the from the Congress yeah I mean so I I think it's definitely a fair criticism of the court that it's voting rights jurisprudence and its gerrymandering jurisprudence have complicated the political story in some pretty problematic ways um you know I still think that in a world in which Congress and I mean this like members across the ideological Spectrum saw their job as you know checking the court no matter who was in charge of it those decisions would matter less I mean not not less in the grand scheme but they would matter less than so far as inhibiting congress's check and function and so you know to me like part of the story here is like how do I appeal to you know members of the House in Texas um who might be very very happy with the way the court is going substantively but who ought to be invested in the court being healthy institutionally and that's a story that ought to be told regardless of gerrymandering or limiting the VRA hi thank you so much I'm Liz and I'm with our children's trust and we represent the 21 youth plaintiffs from the Juliana versus United States case and we we certainly thank you for your scholarship and your work we have used it in our work as well and you mentioned in your Harvard Law review article that this is a case that is a striking example of the Shadow docket and as you may know the Trump doj filed six roots of mandamus in our case and as you also may know we are currently in the U.S District Court and the ruling should happen any day now on the motion to amend the complaint and if the Biden doj files a seventh writ of mandamus um what is your take you know this is a case where the kids are just trying to get to trial and um is this a misuse of the Shadow docket um so I guess I would say the Biden justice department um some of some members of whom might be in this room um are maybe not necessarily the same thing as the Trump justice department um and I don't know that the Biden Administration would be in quite as much of a hurry to take an extraordinary writ up on whatever the district court does in the Giuliana case um so but I do think I mean there's there's a larger story here about just sort of how everything has become an emergency um where you know I think 15 20 years ago the Juliana litigation whatever folks think of what the district court did initially you know the reaction would have been this is not an emergency right and so the government can sort of appeal in the normal course as opposed to all the Extraordinary Measures the Trump Administration pursued um now right there's a mindset that I think is prevalent not just on the court but even among lower courts that you know almost everything is an emergency um that anytime any Court blocks anything a government's doing it's some kind of emergency and I think that this is not a Giuliana specific story but I think it's a story about like how do we get back to a world in which we understand that like injunctions are not per se emergencies um that the government is not irreparably harmed if it's stopped from carrying out its policies for a couple of days um right like that it's more complicated and so that's hopefully where this is going maybe with some help from doj thank you um can you talk about how the lack of Title VII protections for Judiciary employees is related to the lack of judicial accountability and where you weigh that in terms of Court ethics priorities like the ja versus Supreme Court ethics is one more likely to become laws and together well I mean this is uh I mean Elisa you know more about this than anyone I think in the world um um and I'm saying those things even though you're wearing a Williams sweatshirt in front of me I mean sorry come on man um Western Western Massachusetts colleges we take them seriously um so um I think it's the same story I mean right and I think it's it's or at least it's the different side of the same coin where it's the it's a mentality that like the normal kinds of accountability mechanisms shouldn't apply to the Judiciary and that's true on the you know sort of misconduct side personally right as a in addition to financially so you know I see this I mean I would hope that any comprehensive set of reforms would include that kind of traditional misconduct as well but um maybe it's possible that those reforms actually have an even better chance thanks yes me again before that would shoot out now I used to be a student a very vocal and disagreeable one just vocal uh related to your point on emergencies and that injunctions are not necessary and requests for injunctive Relief are not necessarily emergencies there is a concept called concept creep and certain things seem to have out uh strongly disproportionate effect on the scope of attention not merely uh the time taken up I would argue that the increasing Reliance on requests for injunctive Relief by the doj and other parties uh tends to take up a disproportionate amount of the Court's time and moral reasoning and as such the re the rationale of the emergency uh that prompted the request for injunctive Relief will also erode the Court's distinction between what is timely and what is not so I mean I I think there's no question that there's at least correlation between how much more active the court has been on emergency applications in the last six or seven years and the decreasing size of the merits docket um you know proving that it's causation I think there there are nine people who can prove that um let's see David E lavari dissertation 2018. okay um for the second edition um but I mean the the larger point though is I mean I think there there's also a story here that's further into the weeds but still a story that these cases consume oxygen right and they take up resources and if you do believe as I do that there are entire swaths of you know jurisprudence that the court is staying out of that maybe it shouldn't um right the court has largely stopped taking up direct appeals in state criminal cases uh which used to be a real sort of Chunk of its docket um you know there are costs not just to right what the Court's doing on the emergency side of the docket when it's spending more time on them no doubt hi my name's Tom and I actually was a student of your father's uh you mentioned that uh you were from DC so I wanted to tell a story this will be less uh legal and more uh you were probably around 10 and one day I was walking back from class at Georgetown on the hill past Union Station and up Massachusetts Avenue and I ended up behind your father and you Uncle oh Uncle your uncle there are two of them ah ah actually there are three to count my aunt um okay well maybe this wasn't anyway uh we were in front of the Heritage uh foundation and uh he told he was explaining to the two boys with him that about the First Amendment and uh how what the question I have is how is it to have grown up in a family that not only has several uh you know one generation but two generations your grandmother being a very respected attorney how did that form how you are today um Thanksgiving was rough um no I mean so so my my little sister I have two sisters and my younger sister is the only one who's not a lawyer my older sister's a lawyer my dad's not a lawyer but his siblings are lawyers his parents were lawyers um my grandmother was Columbia Law School class of 1947. um as she would say nine years before RBG she was very insistent about that um she actually she argued the case in the court in 1981 um she lost um so it's a it's a family tradition although Uncle David actually has won two right I think he's three AC um so this is if you need a Vlad it go to him um so so my little sister when uh when I was in law school she was an undergrad and we were at Yale at the same time um which she hated except for the fact that it meant she could use my car um and she came to the moot Court finals when I was a 3L and she had never seen an appellate argument before and so she come to me after she says I finally get it I said what she said I finally understand Thanksgiving so um but I mean listen it's it's uh you know I I'll put it this way I clerked for Marcia burzon on the ninth circuit um and her she knows my entire family including my grandmother and her assessment of Me by the time I was done clerking and said I'm the conservative in the family um and I think that's probably right um so it's it's it's you know it's a cool tradition to be part of um and and it made for some awkward oci interviews when I was in law school because everyone is being sued by my grandmother one last question hi uh thank you for coming here uh and um yeah thank you for writing this book um I know you mentioned uh uh justice Roberts retiring um I wanted to actually ask about not seriously manifested everybody I suppose I'm asking more seriously about uh justice Sotomayor um I know she's turning 70 next year um we have Democrats probably going to lose the Senate next year as well um they may have to win three consecutive elections by five points or more in order to get it back which could mean maybe 15 20 years of not of a Republican Senate uh I'm wondering given that you know a confirmation of any successor to her would depends on the health of Dianne Feinstein uh do you think Justice Sotomayor should maybe announce her retirement maybe even effective June 2024 and um I know it's a tough one but you know maybe effective June 2024 announce it now and uh you know save us from a court that could become entrenched until maybe the 2070s 2080s if we get to a 7-200 majority wow um food for thought seriously um so I I mean I will just say I you know if I had been at the lunch that President Obama had with Justice Ginsburg um I don't know what I would have said um right I mean these are humans and you know they are political creatures but they're also humans who know themselves and they know their bodies and they know their future is hopefully better than I do um I don't think it's my place to say that Justice Sotomayor should resign um I can see the arguments for it I can also see the arguments against it I think her voice is unique on the court right now in a lot of ways that you know are not just unique to the current court but actually that the court hasn't had since Justice Marshall retired in 1993 or 93 91 um that would have been better um right um I I you know I think the Justice have to keep their own Counsel on that but I do think that you know hopefully if there's a lesson from the Ginsburg story is that that Council should be informed by a realistic assessment of the politics and the Actuarial Table such as they are so copies of Steve

Channel: Politics and Prose

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Keywords: books, book, politics and prose, bookstore, author, author talk, author video, book talk, new books, book store, indie bookstore, independent bookstore, book tube, booktube, reading vlog, annotating books, book annotations, reading vlogs, journalism, journalist, Washington DC, DC, bookworms, bookworm, book worm, book worms, book chat, @politicsprose

Id: K-m2FAI0Cow

Length: 64min 22sec (3862 seconds)

Published: Thu Jun 01 2023