The Shadow Docket Debate

Governor's mission statement here we go the national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the U.S Constitution among the American people on a non-partisan basis we have a bunch of great Town Halls coming up on June 5th at the NCC in front of the inspiring First Amendment tablet which is behind me will host the state of free expression in the U.S and abroad with the Free Speech hero Gary Kasparov as long as well as Evan mawire and Suzanne nosell of Penn on June 13th we'll have a great discussion about deliberation and Democratic Norms in America with Kenji Yoshino and others on June 19th we'll discuss judge anul thapar's new book Clarence Thomas and the Constitutional stories that Define him with judge Bernice Donald and on June 18th we will have a really Illuminating discussion about the modern history of originalism with Sharif gurgis visit constitutioncenter.org forward slash town hall for all of those programs and more and now it is an honor to introduce our superb panel animal attack is supreme court reporter for the New York Times where he writes the weekly column sidebar he's the author of to have and uphold the Supreme Court in the battle for same-sex marriage Jennifer mascot is assistant professor of Law and co-executive director of the seabling gray center for the study of the administrative State at the Antonin Scalia law school at George Mason University she has served as associate Deputy Deputy attorney general uh in the office of legal counsel and testifies frequently before Congress and Steve laddock is the Charles Allen Wright chair in federal courts at the University of Texas school of law he's argued often before The Supreme Court is the CNN Supreme Court analyst and most importantly for our purposes today is the author of the important new book The Shadow docket how the Supreme Court uses stealth rulings to amass power and undermine the Republic uh welcome Adam Jennifer and Steve Steve congratulations on your new book which all of us have read with great interested in profit uh why don't you start off by summing up your important argument that the Supreme Court is increasingly resorting to the shadow Docket in ways that are not transparent not consistent with non-partisan norms and not consistent with the rule of law sure um thanks Jeff thank you so much for having me uh thanks also especially to Jen and to Adam for taking the time from their busy schedules to join us so you know the book really has two I think overlapping but rather distinct um Theses um and I wanted to describe them both briefly because I don't want to sort of give either short shrift so the first part of the book is really devoted to an argument that we ought to just in general be paying more attention to what happens in the shadows and just to make sure we're all on the same page you know the shadow docket is a term that was coined by Chicago law professor will Bode a former for chief justice Roberts in 2015 really to describe everything other than the merits docket so everything the Supreme Court does beyond the 60-ish decisions that the justices hand down each Sprint after multiple rounds of briefing and after all argument Will's Insight which I'd rather shamelessly appropriated um is that there's actually a whole lot of really important stuff that happens in the rest of the Court's work whether it's granting or denying certiorari granting or denying emergency applications structuring its dockets structural remands you name it and so you know the first part of the book and I think probably the less controversial part of the book is basically uh an invitation to all of us to learn more about the court and to learn more about the Court's history and to sort of view the Court's work more holistically um in ways that I hope will make us all better informed about what the justices are doing and then the second part uses that contextualizing and uses that historical frame in so to try to put into a context how I think the court over the last you know six or seven years has actually used these kinds of traditionally unsigned and unexplained orders in ways that are both novel and problematic um and we can get into some of the details but just at a top level I think it's a combination of really four features um of how the court is using these orders almost all of which are concentrated on the emergency side almost all of which are involved in applications for emergency relief um the first is that we're seeing the court intervene more often and in the types of disputes that are qualitatively more impactful than what had traditionally been fodder for emergency applications um not so long ago an overwhelming majority of the emergency applications that the Court ruled on and that sort of divided the court if at all um involved last minute challenges to executions either to stay executions or to stay them now we're seeing it becoming increasingly the norm that the court is using emergency applications to affect Statewide or Nationwide policies so that's a really big shift relative to Prior practice um the second piece of this is that as you know consistent with the norm in the older contexts in the traditional context they're not explaining themselves right so these decisions are by tradition almost never explained in ways that create lots of troubling questions not just for those of us who follow the court but for lower court judges and for the parties in these disputes um the third is that these rulings are um as you look at the broader pattern across the last six years inconsistent in how they would follow the most plausible coherent substantive principles that might explain them so just to give one example the Court's regular interventions to unfreeze president Trump's immigration policies which seem to be predicated on deference to the executive a view that injunctions of executive branch policies irreparably harm the president Etc hostility and initial-wide injunctions hasn't followed to the Biden Administration where similar disputes have actually resulted differently in the court and that that inconsistency feeds charges that have been leveled by some of the justices themselves that the court is not actually following principles in these cases so much as it's just sort of you know voted up and down on which policies will and will not go into effect and then the last part of the critique is all the while the court is for the first time treating at least some of these unsigned unexplained orders as precedence um that lower courts are bound to follow in one especially notorious example in February 2021 the court chastised the ninth circuit for failing to follow an unsigned unexplained order in a previous case and so Jeff just to sort of sum it all together the critique of the recent behavior is that the court has taken this Authority it has always had and that I don't contest that it needs but is using it in ways that are um inconsistent um in ways that appear at least to be more partisan than they are principled um in ways that are problematic from a structural perspective and in ways that I think are doing a lot to exacerbate charges however fair or not that the justices are acting more like partisan political actors than like neutral jurists um so that's the sort of the two big thrusts of the book um which I hope are are not mutually exclusive thank you so much for summing uh both uh parts of the book up so well uh Jennifer mascot you have testified before Congress that uh concerns about the shadow docket are overstated and you've said that the arguably increased rate of supreme court orders is due in large part to actions taken outside of control of the Court including the increase in federal Nationwide injunctions and state executive actions during the pandemic to address crises tell us more about that critique and whether or not you're persuaded by any of Steve laddick's arguments to the contrary great well thank you so much for having me on at first I should start by just saying uh generally I'm really grateful to the National Constitution Center for its programs and feel honored to be here because the more I have talked to my daughter when she was in Middle School and my nieces and nephews the more I'm learning that school children across the country are benefiting from your resources and know a tremendous amount about Supreme Court decisions in many different areas and so I feel like a particularly cool aunt being on the national Constitution Center programming today um and so thanks for doing that and you're right in fact I think not only have Steve and I testified before on these issues together before the Senate Judiciary Committee but I believe that Steve and Adam and I and you all engage in a conversation uh on similar issues quite a few months ago and so to treat to be uh it's a treat to me back here one development that's happened since then I want to explore later with Steve is that actually Steve and I since uh this prior discussion teamed up together in fact on a matter on the shadow docket so we can talk about the petition for cert and how that may or may not differ or be similar to some of the other emergency orders we're talking about today but to your question about um whether there's something to be concerned about what I've learned from Steve's book I've obviously learned a tremendous amount Steve's done a lot of work and really um digs in deep to each of these cases and decisions and has a lot of helpful statistics and empirical analysis and I certainly agree that we can never go wrong when we study and bring awareness to what's happening with the quartz docket and so I'm thrilled to see the public paying attention to both the Court's merits decisions and then also what's happening on the order stock it's just to be able to understand every component of what's happening at the top of this third branch in our federal government and you're correct that in my testimony a year or two maybe 18 months ago I did say and still believe that I think that each of the nine justices they're often coming from very different jurisprudential views but I do really um I think it's evident from their work and the explanation and their decisions and how they're handling these cases that they are each trying to apply the rule of law fairly and evenly and transparently to the best of their ability and arguably even though we do have a lot of these cases resolved in the orders docket which has been around since the beginning of practice in the Supreme Court as a lot of Steve's initial chapters in his book explain and and in great detail um I mean arguably the Supreme Court is one of the most transfer is maybe the most transparent branch in the federal government in the sense that particularly in the merits cases we get detailed explanation of the Justice's view they're thinking we can read the parties please to the justices we can read amicus briefs and I think now even on the orders docket we're getting getting increasing explanations from various justices who are dissenting from different orders and learning more about what's influencing decisions as opposed to sometimes what's happening in Congress the executive branch where there are a lot of closed door meetings and we're not sure exactly what's leading to a particular vote in a particular case um also I do think that the rise in quantity of some of these orders as Steve points out is partly due to the issue of Nationwide injunctions and what's reaching the court from the district courts but I think also as I've reflected more in Reading Steve's book and his citation of many of the important matters on which the court has to rule like the eviction moratorium student loans covid decisions and actions religious liberty matters actions at the border a lot of this is being driven I think even more um even at an earlier stage by what the political branches are doing or the states and so in a time when we have for example the president um issuing by paper orders that are you know trying to erase um payment of student loans in a particular way or put a moratorium on evictions and massive actions like this and perhaps even more recently discussion about is there anything that can be done unilaterally in the debt limit that issues of those kind of magnitude when they're challenged in the court are necessarily going to lead to the third branch being asked to weigh in um and so a lot of the magnitude of what the Court's ruling on is the magnitude of what governmental actors are trying to do in a in a really rapid way I think for our country's citizens and so we should also take time to pause and and focus on whether we're comfortable I think with the balance of power that's happening between the federal and state levels and executive branch in Congress before it even gets to the court thank you so much for all that Adam um in your role as scrupulously neutral Observer I wonder what you uh Native Steve laddock's argument that um in particular the use of the Shadow docket has been deployed in partisan ways because the justices are inconsistent in how they follow the most plausible Rule and and they're treating uh Trump policies different than Biden policies what's your what's your response thanks for that question Jeff thanks for having me congratulations to Steve for a fabulous book and also for his superhuman book tour that uh that that we're now all part of um so that the court divides along partisan lines happens in both the merits docket and the shadow docket so I don't know that that's an especially Illuminating metric to look at but I think and and Steve's book is is is really quite fair in exploring some of the cross-currents here I I guess I'd make two points um one is that I think we all agree and and Jen inflicted this uh that the court is different from the political branches in that it claims legitimacy by Dent of giving reasons and what tends to be missing on the emergency orders are any or certainly any uh fully set out reasons and that alone ought to make us suspicious of this process the second thing I would say is that the Court's ordinary attitude toward what happens in the lower courts when people seek review on the merits Target is to leave them alone then you have to clear a very high bar to get the court to Grant your petition seeking review your petition for surgery you got about a one in a hundred shot and the shadow docket should not give people a shortcut to get to the court and to get a preview of a merits decision and ordinarily the answer ought to be that the status quo below ought to hold now you can argue about what the status quo means what it is these are hard issues but I was very taken by a short concurrence that Justice Barrett joined by Justice Kavanaugh issued in a coveted case for Maine in which she said listen basically we're going to let the lower courts decide most of the stuff most of the time and only intervene when it's really important and that same standard that we use on the merits dockage for deciding whether we're going to intervene ought to influence the shadow docket and I'll make one final point that the lack of hearing argument in these cases and it would be possible to hear arguments on stay applications circuit courts do it all the time withdraws an important aspect of the Court's deliberation oral arguments are not really an effort to gain information from Advocates it's a chance for the Justice to talk to one another and there's no reason why in big cases they couldn't schedule arguments and they don't have to be at a bench the court knows how to have telephone arguments they've done it for an entire term so there are things the court could do to address some of these issues in sting raises thank you so much for that Steve um make um at greater length if you will your the argument in your book that the treatment of Lower Court decisions shows that the shadow darken is being used in a more partisan way than the ordinary docket you say that far from having a general presumption of leaving the lower courts alone the justices are intervening or not based on their substantive views of whether they like the Constitutional climate in particular you argue in the free exercise of religion cases and the abortion cases they're they're um intervening uh in partisan ways that that can't be squared with the general procedure and you note that chief justice Roberts has been joining the Liberals in several of these cases in a way that he isn't in the uh Merit stock at uh showing that he shares this critique tell us more about this powerful uh argument that you have yeah thanks Jeff I mean so if if we just sort of start with the September 1st 2021 ruling by the court of 5-4 decision to not block sb8 the six-week abortion ban in Texas you know I think that rule in really did a lot to put the shadow docket on the public radar I think there's a lot more public awareness of this after that wrong than before and you know if we just looked at that ruling in the abstract compared to 15 20 years ago the non-intervention by the justices might not have looked that surprising right that historically as Adam I think rightly points out like the courts you know sort of default was to leave the lower courts alone and even if the lower courses behave badly to not sort of jump in rashly what I think made the SBA non-intervention so exasperated and so vexing and what was at least the source of my critique of it if not everyone's uh justice kagans I think as well is that this was coming at the end of this remarkable period starting in November of 2020 where the same justices the same five justices in the majority of the SBA case had intervened over and over and over again to block coveted mitigation measures in blue States almost exclusively in New York California New Jersey Colorado there are a few others um based on both novel understandings of the three exercise clause ones we might like or not like but that were clearly novel and you know in sort of defiance of procedural obstacles and roadblocks that the same justices then invoke as the reason for staying in their hand in the Texas case and so you know the the charge that comes out of that Jeff the charge of inconsistency that Justice Kagan leveled in her descent I think actually is a stings more than just the word inconsistent it's actually even more pejorative than it sounds because what it's suggesting is that the five justices who were willing to intervene in these novel procedural contexts in the covet cases to expand an existing constitutional right right we're unwilling to intervene in the Texas abortion case because they didn't want to protect a settled constitutional right um and that I think is where you get the concern that the absence of full-throated explanations does nothing to disabuse the public of those charges right that that usually one of the things the majority opinion is good for is providing at least some basis for saying they're not rule in this way just because they want to they're willing this way because they have legal principles that require them to um this was Justice Barrett's defense in April 2022 in a speech at the Ronald Reagan Presidential Library she says you know don't just sort of look at the bottom lines of our rulings look at what we've said before you dismiss us as in her words not mine partisan hacks um right the the quote that comes out of that speech was read the opinion well two days after that speech hers is the dispositive vote in a 5-4 ruling on the shadow doc could put him back into effect a controversial Trump era uh clean water rule in which there was no opinion to read um and so right Jeff to me the the problem that we're seeing in the last couple of years is that whether the inputs whether Jen's right that lower courts are forcing with Justice's hands right and that they're sort of a a newfound need for this degree of emergency intervention the way the court is intervening the frequency with which it's intervening without explanation the context in which it's Chosen intervened and not intervene it's when you add that all together that you start to see serious problems this is part of why I think it needed a book right because it really takes the whole data data set to see the seriousness of the charges let me say one last thing because I know I know Jen and I are going to disagree about this um like I think it's perfectly awesome um for folks to disagree about sort of whether particular pieces of the Court's behavior in recent terms have been as problematic as the book suggests they are I'm just so thrilled that we're having this conversation um because like the first goal of the book was to get us talking about it um and so you know that's it's a happy day for me even if uh even if even if not especially if Jen is right well it's a happy day for a constitutional debate and we're grateful to all of you for for having it genuine Steve do disagree what just what's your response to his to the claim that he just made that even if you think there are more Nationwide injunctions and even if you agree with Justice Alito that the Court's receiving more requests for intervention uh a factual claim that Steve disputes um the kinds of rulings that the Court's holding down the way they're doing it uh show partisanship not principle well I think that the juxtaposition that Steve raised is an interesting one in the difference of the outcome with some of the rulings during the covet era and then the example of Texas SVA because when you look at those examples it starts to seem more that the objection is really about the outcome of what the justices are doing in these cases rather than the shadow docket mechanism themselves it's itself like in finding the political action to be unlawful or unconstitutional or not um and and and that I mean obviously many lawyers and litigants and justices are going to disagree about where the legal Authority lies and so it's it totally makes a lot of sense for there to be vigorous disagreement about that in our society but I don't I don't think those examples in particular show that the methodology of the justices or the procedure is necessarily particularly nefarious I think during the covet era it was really unprecedented in many ways and as an executive branch lawyer at the time you know we were constantly faced with questions about how to be really faithful to the rule of law and thoughtful and also try to help facilitate uh the um elected officials being able to play the important role of Trustees over the American people and our system of government that needed to happen in kind of a rapid efficient way and I'd imagine those questions were coming into justice as well and I mean from my standpoint I think the Texas sb8 consideration actually for the justices turned out to be maybe a really wonderful model of the justices taking a lot of care in the emergency orders docket because there was actually an opinion issued although not as as lengthy as the marriage docket and there was oral argument and I think one thing that made the particular question that came up to the court a little bit more complicated and maybe caused them the Justice to be more hesitant and wanting to weigh in on the marriage right away is there were threshold questions about who had a right to bring action by Design with the individual who had helped the Texas legislature draft the bill and so the justices were not necessarily clearly given the question is our precedent on row being followed in Texas it was a lot of more complicated jurisdictional questions that I think Merit a consideration and my recollection is that uh when the court ultimately um ruled in more depth it kicked one of the interpretive questions actually to the Texas Supreme Court and so it took itself out of the equation at least a little bit in terms of interpretation of the law there um and then in the end obviously the core questions that were really motivating a lot of concern and interest in the country were the questions about the extent of the right of privacy under the Constitution and the court of course more fully addressed that later on in the separate Dobbs decision a few months later on the Merit socket there was no oral argument in the SBA case at the emergency application stage um right I've posted a link in the chat to the decision which is about a paragraph long um right the ultimate decision in the SBA case in December after the emergency application was resolved um didn't kick anything to the Texas Supreme Court the fifth circuit did that on remand um and in fact I think especially ironically four of the five justices who voted to not intervene on September 1st who voted to let espe go into effect because of these procedural concerns they had about whether these State officials were proper defendants ultimately said they were or at least four of them were um right and so this is this is where I think the charges of you know sort of insufficient transparency insufficient explanation and seeming partisanship really start to land because contrast that with how the same five justices just uh five months or earlier four months earlier in a case called Tandon versus Newsom um had reached out to block California's restrictions on how many folks could assemble in private homes with no more process right based on a novel theory of the free exercise clause with similar procedural obstacles like that's the problem is when you put these things side by side and I think I just see I mean I just think sometimes and analyzing it and it is very complicated and there can be disagreement about which metrics are most important but sometimes I wonder if there aren't either category errors or oversimplifications with with some of this in terms of looking at the posture of the issue when it comes up so for example the Texas heartbeat bill I mean Adam Adam hinted at this a little bit in an orthogonal way earlier what is the definition of the status quo if the status quo is the government action initially here in the Texas sv8 matter the first time all the court really did was declined to issue a ruling that would have treated the bill as if it could not be enforced basically and so to go the other way the justices would have essentially been rapidly in an emergency posture allowing Lower Court decisions to stand that took a quite a dramatic action of stopping up you know an elected governmental entities action and so I understand why it was really noteworthy because the action itself the legislation itself was so unusual in terms of the type of legislation that we've seen from state legislatures in the past but when it came to the court the court was essentially in that first moment trying to decide whether it was going to keep its keep the courts from being the entity that was going to change things and I think ultimately the justices took a little bit more time to examine some of the issues which is how we got through the cycle that Steve detailed of eventual argument and then a little bit more in depth so just just to tie the loop together right what Jen's talking about is an injunction pendant appeal the most extraordinary form of emergency relief and Jen is rightly explaining why the justices have historically been very reluctant to issue injunctions tending appeal because unlike a stay an injunction pendant appeal is reaching out to stop the state from enforcing the law directly and so again in the abstract I think that's a perfectly coherent defense of the Court's non-intervention in the SBA case the problem is that whereas the court had only issued four injunctions pending appeal in Chief Justice Roberts first 15 years on the bench from 2005 to 2000 the end of 2019 Injustice Barrett's first six months on the court the court issued six um and so it's just like against that backdrop where the court was doing exactly what Jen's criticizing to block California coveted restrictions and New York covered restrictions the fact that all of a sudden they found their hands tied because the partisan valence of the dispute was flipped that's the problem I'm trying to get out in the book and I agree and I want to I'm sure Adam has things to say too I mean I look again just now I'm switching hats to the executive branch it was an extraordinary time I mean my recollection partly because I was at doj at the time is that Justice Barrett was confirmed about five months into the pandemic and there continue to be efforts to try to deal with it on the executive branch side there were lots of things happening there were the Trump Administration was moving rapidly to try to get the economy to be producing Mass to be producing vaccines um to be trying to figure out how to keep people safe and there were all kinds of extraordinary uses of the defense production act and other Health Care Emergency authorities and and and in all sorts of efforts to try to orient the economy on the political Branch side and so I guess part of what I'm saying is and and I'd be curious and actually this would be an opportunity for another um book even in like at the five year mark I wonder if we'll look back and see if these just ices are issuing or are stepping in Junction pending appeal with the same rate as Steve is citing in those few months that were Justice Spirits first months on the court because again it's just very hard with the with the pandemic I think there were a lot of sui generous and efforts that were being taken at the state level and at the federal level um and I would just have to imagine that a lot of that was impacting the need for the court to be weighing in in Rapid order I'm going to ask Justice liptach to adjudicate in this really important discussion both about the increase in the numbers of injunctions uh pending appeal the increase in the overall grants of emergency relief um Steve says that there were about six averaging a year in Justice Roberts's first terms and and 20 in OT uh 2020 and also Adam uh Steve claims that um the Trump Administration placed a big role here that in four years Trump solicitor general sought emergency relief from the Supreme Court a total of 41 times a more than 20-fold increase over Bush and Obama's SGS combined what do you make of all of these numbers so I don't think there's a dispute in general correct me if I'm wrong that there has been an increase in this activity the question is is it problematic what what's the what what gave rise to it and the more conservative argument is typically that in the Trump era lots of district court judges around the nation shut down government programs through Nationwide injunctions and that caused uh the Trump Administration to go to the court and it was knocking on an open door because this court was sympathetic to the Trump administration's policy goes and solicitor generals of both parties said they would have done the same thing in that same Dynamic now the argument gets refined a little bit because and Steve will give me the actual numbers but maybe a third of these applications involved Nationwide injunctions and lots of them came up in other contexts uh Steve your uh response and um what about the argument that Adam just made that uh although the numbers undoubtedly increased um they don't have a partisan balance yeah I mean so so I I don't disagree that by themselves the fact that the executive branch was seeking emergency relief more often was a problem independent of the executive branch I mean chapter uh gosh uh four of the book um right talks about the solicitor general and the role of the solicitor general historically and it suggested I think you know the solicitor general was I was at least I think in some respects behaving very aggressively compared to the prior traditions of that office be that as it may um none of that would have mattered if the court had denied those applications and I think one of the things that happens is you know of the 41 Jeff you mentioned applications that the Trump Administration brings to the court five of them never get resolved on them like five of them don't get to an up or down vote five of them get withdrawn before they are voted on the court granted 28 of the 36 in holder in part and so you had this repetition that we had never seen before I mean I'm I'm sure Adam had this experience on the journalistic side of just sort of having more of these um than we had seen previously and in context in which the impacts were far greater and again like I think there's a story you can tell if you just looked at the Trump cases about lower courts behaving badly about executive branch policies and the need to carry them into Force you know I might not agree with that story but it's a story um the problem once again is once you contrast how the court treats applications from the Trump Administration with how the court treats applications from the Biden Administration in very similar contexts so just to give one example there was a case last term called Biden versus Texas it's really hard to keep all the Texas cases uh separate um but this one was about the bind administration's attempt to rescind the remain in Mexico migrant protection protocols one of the Trump administration's immigration policies um so like a number of trump policies the Biden initiative here was subject to a Nationwide injunction issued by judge kasmarek in Amarillo the fifth circuit refused to stay the Nationwide injunction the Biden Administration went to the Supreme Court and said just like all of these cases where you stayed Nationwide injunctions against Trump immigration policies so too we would like you to stay this one and in August of 2021 over three public dissents with no explanation the court refused to stay the injunction but then took the case on the merits and reversed and ruled for the Biden registration and so Jeff again it's the it's not any one of these rulings in the abstract that's the problem not even any one set it's when you start looking at context in which claims that were similarly situated are resolved differently and where the most telling explanation for the difference is not the nature of the claim or the legal arguments that were deployed but rather just the partisan valence of the dispute that's where I think the charges become hardest to dispute and most serious as a critique of the Court as an institution again what about that claim that similar cases are not being resolved similarly and as uh evidence for that Steve mentions chief justice Roberts who did tend to join the conservatives on the merits but in a series of of Shadow document cases join the Liberals because he thought that the procedures weren't being fairly followed well I also think um the chief justice has you know his issue his opinions in some of the recent last couple of years shows that jurors prudentially he does not always line up necessarily with the new block of five justices so I think again jurisprudential distinctions that apply more broadly even than just on the shadow docket or some of what is is motivating these differences and that sometimes some of the trends and factors that Steve is identifying are principles that we might see carry out on the merits docket as well as on the I also do think it's important to know that the court is still issuing a lot of rulings even in the Bible Preston case is a recent example where Justice Alito was in uh dissent and the court stepping in in an emergency posture and I would actually be interested um I guess in in two things one if Steve has is there a standard I mean would would the would the better alternative be in all of these cases um for the court just to give oral arguments and are we putting a particular type of Lower Court ruling in a particular bucket would this be any time there's a request for injunction pending appeal that there would be oral argument other other types of emergency decisions and then the second thing that's maybe shifting gears a little bit I thought it was interesting that the court today actually issued a summary of reversal in a case where there had been a petition for certain review of a six circuit decision I mean the challenge to FDIC action and so here the party actually petitioned and positioned the case for full merits briefing where normally the party wants the more contracted briefing and the court said well this was so wrong we can get rid of this more efficiently Through summary reversal and are there some times when it is indeed the fact that the court has seen an issue so clearly that it's actually a more efficient use of resources to dispose of it without oral argument or would it have been preferable even in this case for the court to go ahead and hear the case before issuing uh this kind of decision Steve your thoughts on on that so I mean let's be clear the summary reversal this morning had an opinion of the Court um and it had a a I think it was an eight page opinion of the court that provided a pretty thorough explanation for why the court was summarily reversed in the sixth circuit um yes I think that is preferable to an unsigned unexplained order um I also just want to say I don't think Contra gen that chief justice Roberts's dissents in these cases are remotely traceable to substantive disagreements with the other conservatives I posted into the chat the Alabama voting rights case um in which last February the court stayed uh two different District Court injunctions that would have required Alabama to redraw its congressional district Maps um and you know I think there's no majority opinion I think our speculation I I suspect Adam agrees um is that this is because the court is willing to reconsider a 1986 precedent called Thornburg versus pingles um the Chief is right there with them how do we know he said so um right he says in his descent I am you know I I agree maybe the time has come to reconsider Thornburg versus gingles but not like this um right the chief's descents have always been about the procedural shortcuts and why he thinks it's inappropriate for the court to be taken these kinds of you know procedural steps for what they can eventually do on the merist docket I actually think Jeff that underscores the critique rather than distinguishing it Adam let me just give you the numbers that Steve offers about the chief he says by almost immediately after Justice Barrett's confirmation Roberts started joining the Democratic appointees by April 2020 Robertson publicly descended from nine different five to four rulings since October 2027 of those nine came on the Shadow docket uh do you agree with Steve or not that Robert's objections in these cases were procedural rather than substantive and has to do with his desire to preserve the Court's legitimacy so the the case uh Steve just mentioned is a very good example of Roberts on the substance being in one place and on the procedure being in another place and the consequential decision that you know the court uh uh stayed for the purposes of an election a voting map that made makes a difference in the composition of Congress uh on the other hand in the covid religion cases while Ginsburg was still alive uh Roberts joined the majority to defer to State action and let State officials accountable officials informed by their health advisors make rules about public Gatherings including in churches and then when Barrett replaces uh Ginsburg and the Court's attitude toward these restrictions changes uh Roberts is now in dissent with the three remaining liberals and I think that's a point more on the merits than on procedure Steve um you started us off by saying there are two broad arguments uh in the book One the historic the uh evolution of the Court's efforts to control its own docket vis-a-vis Congress and then second the increasingly partisan use of it today to take us back historically the book begins with this riveting and memorable encounter with Justice Douglas uh who's being asked to enjoin the Vietnam War and and tries to do it uh uh over Justice Marshall and the rest of his colleagues objections and then you note that the use of emergency orders has been used and expanded in death penalty cases and election cases but you say that something recent and you trace it back to Chief Justice Taft's effort to allow the court to control its stock it in the Judiciary Act of 25 um but then you say of course that it's being used in different ways today so put the whole thing in that broader historical perspective sure and this actually this also gave me a chance to answer Jen's question from last time that I that I neglected to answer about what I would prefer um so you know I think a lot of folks even who pay attention to the current Court may not appreciate how much of the way the current court operates is new or at least new relative to the founding era so you know for the first 101 years that the Supreme Court exists as an institution it has zero control over its docket every single case on the Court's docket is one that it has to eventually resolve one way or the other um right chief justice Marshall will say in 1821 it would be treason to the Constitution um if we were not to exercise jurisdiction over cases Congress has given us jurisdiction um that shift the shift towards certiorari toward the modern um approach where the court has almost unlimited control over its docket um is one that starts with very very small steps in 1891 and that is then blown up by Chief Justice William Howard Taft once to have to Chief Justice and for Taft certiorari was means to an end um Taft really wanted the Court's role to evolve from what he would describe as a supreme court of appeals just the last in the you know Spectrum the tier of appellate courts resolving the individual cases to more of a constitutional Court um right the institution that was sitting above and apart from The Fray of ordinary judicial business and he saw sir shurari as one of the critical ways to achieve that alongside things like getting the court out of the capital where it sat until 1935 right benefited its own building um created on the judicial Conference of the United States I mean there are lots of things Taft wanted to do basically to give the the Supreme Court itself and the federal Judiciary in general more autonomy and Jeff what came with that was not just more control over the Court's docket but power to dictate what the court was going to decide even within the cases it chose to hear so today the very first page of assert petition lists the questions presented um right the notion that the Court's not taking the entire case it's taking up particular questions that as we know sometimes the justices will modify sometimes they'll only Grant one question as opposed to all of them sometimes they'll rewrite the questions presented and then granted that's what happened in the major Second Amendment case last term where the the question that was granted was one the justices wrote themselves um sometimes they'll decide questions that weren't presented like overrule and Roe versus Wade and Dobbs was not part of the questions presented and so Jeff this is all part of the Supreme Court you know sort of claiming more and more power over its docket over its control um and while this has happened Jeff the Court's docket has shrunk so that you know as recently as the 1980s when there were still some mandatory appellate jurisdiction um right the court was here on 150 175 cases a term as recently as when I was in law school it was still here in 90 cases a term right this term is going to maybe get to 57. um that'll be the fourth term in a row then it's under 60. um when it hadn't been under 60 since 1864. so these are all of a peace Jeff with the court just having more and more control as Congress has exercised less and less control and just really quickly and to Jen's question about so what would I prefer well one I prefer Congress to reassert some control um I think that would be a useful thing but two when it comes to emergency applications in particular I actually think there's a lot to commend the pre-1980 model of having these resolved by individual justices in Chambers where they could have argument where they could take briefing where they could write opinions and where no one would mistake the opinions they wrote whether it was Douglas in a Cambodia bombing case or Marshall um for an opinion of the full court I think that that would sort of balance the need for some kind of disposition with process with the avoidance of sort of the full court being viewed as having resolve these matters that that to me is the best way to split the difference Ben what do you make of that alternative it is so vivid to think of Justice Douglas going from phone booth to phone booth on the Yakima Trail to phone in his order and joining the Vietnam War um would that promote more accountability to return to that model I mean I I do obviously agree that you know treating all of these questions with care is a good thing I mean I I just I think in our current contemporary times I've always perceived the justices um tradition right now of very rarely um doing anything other than referring these matters to the whole Court as being a matter of comedy and collegiality because I guess what I fear in these hyper partisan times and times where it seems like just a lot of folks wanting to question that there would be more room for speculation about what would the full court do and a claim that each Justice was trying to be partisan and how they were handling the issue alternatively on the majority of what Steve just said though about Congress stepping in I heartily agree I think it's very refreshing to think about um the history and the trajectory of when Congress and in what ways it used to control more of the Court's docket and handle mandatory jurisdiction versus discretionary and I think it'd be really actually quite interesting to see what might happen if Congress really would again step in on the front end in terms of framing um I mean you could frame all kinds of things right because that's one area in which Congress has clearly been given Authority particularly with the lower courts and often you know with with questions the Supreme Court takes up as well is what uh questions is the court going to be able to resolve and I think if the Congress could also look at the scope of remedial relief that the court is providing and that it would be much more preferable for Congress to weigh in on the front end ex-ante by guiding uh Supreme Court's Jurisdiction in advance before we get specific cases and controversy then a lot of what's Happening Now whereas Congress doesn't want to coalesce around a certain substantive agreement so instead it has a lot of hearings or raises transparency questions on the back end and Reporting requirements and things that are a little bit more second guessing rather than trying to control and direct not the resolution of cases we would never want Congress obviously stepping in and away that seems to be a back door for um certain political preferences and individual cases but to be a little bit more clear up front about what the court should be considering or what kind of belief it can provide I certainly think that's an area that Congress should spend more time examining Adam your thoughts on whether Congressional intervention and a return to the single Justice model would be better and and in particular Steve's main concern is that these unexplained decisions are being treated as precedent in a way that they weren't before are you concerned about that so the single Justice model still exists to a large extent most of these emergency applications are turned down by a single Justice I sense after at least informing the court that that Justice intends to do what he or she wants to do um on the point about increasing the Court's docket withdrawing some of its discretion I think that would be a fabulous thing uh people don't pay attention to many of the cases the court works on but in some of the more routine cases the justices authentically put on their lawyer hats and try to figure out the correct answer and it's a joy to behold and it doesn't divide along partisan lines and there aren't enough of those cases and there are plenty of heart issues the court could be looking at and instead we have this model that Mark Lemley and Stanford calls the Imperial Court which is ambitious and impatient and wants to deal with the big social issues right away and devotes much of the attention to the entire term of the merits docket to that I think if the court had to handle 100 cases a year which is you know well within historical president it would be to the good for the litigants seeking to get answers to those questions but it also be to the good in terms of the justices working together and figuring things out they're smart able lawyers and when they put their minds to work on cases that are not the big social controversies but are difficult questions of patent law or almost any other topic in the law it's a good look for the court Steve you contrast the current situation with uh the age of what uh as you know Alexander Bickel called the passive virtues and the idea in in the 1950s and 60s when the court decided not to decide the interracial marriage cases for years after Brown uh there was a bipartisan consensus around the virtue of not deciding to promote the Court's legitimacy what changed um in that regard aside from the partisan valence of the justices and and why is it that no one on the current Court seems to be devoted to the passive Richards um you know that's such a good question question Jeff we probably need another hour um but I'll just I'll start by saying I mean I think it's worth reminding folks of something that I think is is obvious in retrospect but you know even the Warren Court the ideological alignments did not match up with the partisan affiliation of the presidents who appointed the justices um right I mean Warren himself was appointed by a republican Brennan was appointed by a republican um you know Byron white was appointed by a Democrat and that you know part of the the problem of the moment we're in is that you know since 2010 for the first time in the Court's history there's one to one parity between where the justices are ideologically and what parties president appointed them um and that wasn't true until 2010. so I think that's sort of sharpening the edges of the conversation um in ways that are pretty significant as for sort of the passive versus I mean you know only taking 55 cases a year is somewhat passive um right or at least somewhat virtuous from Bickel's perspective um right the the problem is the one that I think Adam puts his finger on which is when the 55 cases are the 55 hot button divisive issues the justices want um all that does is it reinforces the worst perceptions of the court and not the best perceptions of the court right that that you know when the court is actually doing technical lawyer in I think the justices really aren't their best um and I think that you know one of the problems of the Shadow docket is that that's the opposite of the spectrum where there's no technical lawyer and it's just a quick up or down vote on whether this policy can go into effect and this one can't be and that's where I think you know we're not all going to agree on what the right reforms are but I think we might all agree that there's opportunities for movement and for making the relationship better that don't all turn on changing who's on the court that don't turn on altering the composition of the Court um as you know I think so many progresses are clamoring for and that's the conversation I hope the book helps to precipitate and and you do indeed emphasize that you're offering these proposals in the hope of uh increasing the course legitimacy rather than um supporting it gen uh Steve argues that justices of both of all perspectives but certainly the current majority is impatient and is reaching out to decide questions because it wants to change the law and this mirrors a critique for Justice Kagan and Justice Sotomayor have talked about the impatient court and he's and he's claiming that in that sense substance is following procedure uh what's your thought I mean I don't think so I I agree with the point that if you look at the small number of cases the court I mean clearly is not being as aggressive as it could be and taking on many many matters it has had a lot of big matters kicked to it sometimes it's gone many terms in a row without taking on the big questions some of us in the administrative law space which is a little bit different from uh some of what we're talking about here have wanted the court to re-examine deference doctrines like Chevron for a long time and I have to say I mean they've possibly taken up the question next term and I just have a feeling that again we're going to see the court not take it you know head on but you know I don't know maybe maybe it'll require some rewriting of the ad law case book I've just joined after after the end of next term we'll see but look this is a very legitimate highly honored professional institution that we should all be really grateful for I think in American Society for decades and decades and decades the number of justices has been stable um President Biden put in place a commission of many dozens of experts and they did really not coalesce around one um strong majority sense that there's a particular reform that really must happen that everybody agreed we'd be better off with and to the point about unanimity and controversy and in at least the past 10 terms leading up to 2022 about 35 percent of the Court's judgments in merits cases have been unanimous and so I think that's Adam's point a little bit before that there are a number of cases sometimes which we don't necessarily um Captivate our imagination as much where the court actually unanimously agrees um and so I'm I'm grateful for what the justices are doing and grateful for this chance to talk with all of you about how we can all be better students and more attentive to figuring out what's happening in the nation's highest court very well said Adam I think we'll give the last word to you in this wonderful and thoughtful and wide-ranging discussion um what did you learn from Steve's book The Shadow docket uh about whether or not the Supreme Court is as his subtitle said using stealth rulings to amass power and undermine the Republic uh so Steve's book is fantastic people should go out and buy it and read it as to the subtitle there's little doubt in my mind that they're using this pal uh this procedure to amass power and I will not pass on the question of whether they're destroying the Republic in the process wonderful um thank you so much Steve blanik uh Jennifer mascot and Adam webtech for a wide-ranging Illuminating and just great discussion friends who are listening uh whether you're persuaded or Not by Steve's arguments he has convinced us of the Urgent interest and importance of studying procedure and I uh joined Adam and and Jen in urging you to uh read the book because uh I know you'll learn from it uh Steve congratulations and Jennifer and Adam thank you so much for joining

Channel: National Constitution Center

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Length: 58min 1sec (3481 seconds)

Published: Tue May 23 2023