Scholar Says SCOTUS Could Become a “Pointless Institution”

GOLODRYGA, HOST: Well, as mentioned earlier, that crucial abortion pill case may be heading to the U.S. Supreme Court at a time when trust in the institution is very low. Our next guest says part of the reason is the rise of the shadow docket, where cases are decided quickly without written opinions or oral arguments. Law professor, Stephen Vladeck, traces how it’s changing the Supreme Court in his new book, and he joins Hari Sreenivasan to discuss these stealth rulings.

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HARI SREENIVASAN, HOST: Stephen Vladeck, thanks so much for joining us. Your book is titled “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” First of all, maybe a little bit of a civics primer for all of us, what is a shadow docket?

STEPHEN VLADECK, AUTHOR, “THE SHADOW DOCKET”: Yes. So, it’s not really much more than just an umbrella term for most of what the U.S. Supreme Court does. We tend to talk about the merits docket, that is to say the 60 to 65 decisions the court hands down each term, applicants (ph) have been argued. But in reality, that’s just a small slice of the overall applicant (ph) of the Supreme Court. The shadow docket is a term that was coined by a Chicago professor in 2015 to describe everything else the Supreme Court does, the unsigned and usually unexplained orders that actually account for most of the Supreme Court’s work and that can oftentimes be just as consequential and just as impactful as the big fancy merits decisions that we actually tend to focus on in the — you know, in our public discussions.

SREENIVASAN: Right. We forget that the Supreme Court probably, what, rejects most of the cases that come to it, right? It’s not — it’s a very small fraction that they even choose to hear. So, how, as a refresher — how do the cases get to the Supreme Court before they go down either the shadow docket or the merit case route?

VLADECK: Right. So, the typical lawsuit usually gets the Supreme Court at the very end of litigation. So, after years of back and forth in lower courts, whether lower federal courts, lower state courts. And usually, it’s only at the very, very end that whoever lost in the last round will go to the U.S. Supreme Court and ask the justices to take up the appeal. As you say, the justices can choose whether or not to take up the case. One of the things that we’ve seen though in recent years is another type of order where even before we get to that point, before the case has made it all the way through, a party that lost below say the federal government that had one of its policies enjoined or someone challenge on a state COVID measure who lost in the lower courts might go to the Supreme Court early in the case and asked for something called emergency ruling, you’re asking the justices basically to freeze the status quo or to unfreeze the status quo while the rest of that litigation process plays out. That’s where we have seen a real uptick in the last five or six years in how often the justices are granting that kind of relief in the impact of orders, granting them that kind of relief, and in where those impacts have been felt by all of us, from federal vaccination mandates, to state abortion bans, to congressional district maps. We really have seen these kinds of orders reshape large swaths of American public policy.

SREENIVASAN: So, I want to go through each of those categories one by one. I want to point a quote that you wrote, as the shadow docket has grown, the merits docket has shrunk, giving the justices less time and fewer resources with which to conduct plenary review cases not presenting real or conjure emergencies. So, let’s talk about the frequency. How often are these types of one sentence, one paragraph, rulings happening?

VLADECK: Yes. I mean, we’re seeing them just about every week now. Now, again, we should distinguish between when the court is granting or denying review of a full appeal. So, that superiority (ph). Those, of course, happen all the time, and there are thousands of those every year. But on the emergency side, we are now seeing somewhere between 75 to 100 of these rulings each term. We are seeing the court grant somewhere between 15 and 25 of these per term. And just to put that in context, the court is not even taking 75 to 100 merits cases each time. The last four terms, it’s been around 60. And the number of times we’re seeing the justices intervene through emergency applications, 15 to 25 per term, that is way up in both number and qualitative assessment from as recently as 10 years ago. 10 years ago, maybe the justices would have intervened, five, six, seven times a term. And those interventions would have almost all been in the death penalty cases, where what was happening — where the emergency was, a last-minute request to block an execution or from a state to unblock an execution. Now, we are seeing these emergency requests on questions of statewide or federal policy, everything from the student loan program, to the Title 42 immigration policy, to COVID medication measures.

SREENIVASAN: So, how long are these decisions and what do they typically say? What did the Supreme Court justices share about why they got to a particular decision?

VLADECK: Usually, nothing, and that’s the problem. I mean, so, the typical disposition is something like the application for a stay presented to Justice Alito and by him refer to the court is granted. That’s it. You know, we might get concurring opinions, we might get some dissenting opinions, but it really is the exception that the court will write a majority opinion when it hands down these orders. And, historically, that’s not unusual. You know, 20 years ago when all the court was doing through emergency applications was last-minute stays of execution, I don’t think there was a big clamor for the justices to provide lengthy explanations. But now that these orders are having these profound effects on the ground, the fact that we see the court intervening, oftentimes undoing hundreds of pages of analysis from other court judges and providing no explanation of its own, I think it’s a real part of the problem and it deprives all of us, the lower courts, the relevant government decision-makers, the public of any ability to assess why the justices ruled the way they did.

SREENIVASAN: Justice Alito has kind of pushed back on this idea in multiple ways. One of the quotes you have from him is, the catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way. He obviously doesn’t like, not just the phrasing, but the entire concept that the court is doing something untoward. And you take almost an entire chapter to try to push back against that. What’s your evidence against what he saying?

VLADECK: Well, I think the evidence is the decisions. I mean — and so, for example, one of Justice Alito’s responses to critiques, I’ve been critical of the fact that the court is treating some of these orders as presidential and yelling at lower courts that have not followed unsigned unexplained orders. You know, Justice Alito denies they are doing that, but we can point to the specific cases where it’s happened. So, I think part of what’s going on here is that for Justice Alito’s perspective all the court is doing is what it had always done in the death penalty context and just in a slightly different context. And what that totally fails to acknowledge and fails to account for is why it’s problematic that the court is not explaining itself, that we are not seeing rational, is that we’re not even seeing the vote count.

I mean, we don’t even know which justices are on which side in a lot of these contexts when the decision is happening with these downstream effects, when the decision is affecting who is voted for for Congress, as we saw in the congressional redistricting cases, when the decision is affecting whether or not a controversial immigration policy will be allowed to be enforce for upwards of two to three years, when the decision is blocking California or New York COVID mitigation measures.

And so, I think this is where the Alito critique fails to account for what the court is actually doing. What he is defending as a strawman, and if you actually look at the whole body of these cases, just what the book does, you really see a far more troubling pattern not of conservative versus liberals, but of a court that just seems to be unbeholden to any need to explain itself, even when these decisions are having such massive effects.

SREENIVASAN: The part that you are also concerned about is this precedent setting nature of these, really, unexplained decisions. And tell me and the audience, why that’s important?

VLADECK: To put it sort of more playing terms of why these matters, if we go back to why we, as a polity, give all of this power to unelected judges, it’s because we expect them to act in a way that is judicious and judicial. And at the heart of judicial power, what separates judges from politicians in robes is the principled rationale, is the ability of the courts to provide justifications for why they are ruling one way and not the other.

The Supreme Court itself has always said, our power comes from our ability to provide principled explanations. When you don’t have those explanations, what you’re missing is not necessarily principles who would agree, we might disagree with the principles that the court is adopting in cases like Dobbs or Bruen, when it comes to abortion or guns. But they are principles. And what is missing in the unsigned unexplained orders is any sense that the justices are ruling the way they are because of fidelity to some kind of neutral legal rule as opposed to because they want party A to win and party B to lose.

And one of the most disturbing things we see when we look at all of these cases in the aggregate is that there’s really seldom a coherent legal through line that explains why, in some cases, the court rules one way, in some cases it rules the other. Oftentimes the best predictor is whether the case has a partisan balance. And if it does, we’ve seen the court tend to favor Republicans, tend to rule against Democrats.

SREENIVASAN: So, is there a partisan effect on when these unsigned decisions increased in volume?

VLADECK: There’s certainly, I think, an alignment and there’s a correlation between the shift and the change in membership on the Supreme Court. I think it’s harder to prove causation. But we really see this pattern start to pick up in 2017, before there were any big changes in the court’s composition in the middle of the Trump administration. And then, it’s with the confirmation of Justice Kavanaugh to replace Justice Kennedy with the confirmation of Justice Barrett to replace Justice Ginsburg, that’s when we see it really accelerate. I don’t think that’s because these are conservative as opposed to liberal justices. I think it’s because the speed breaks, the sort of the moderating influence of having justices like Anthony Kennedy who is in the middle were removed.

And so, the court, I think, has just found it more and more convenient to use these unsigned unexplained orders to resolve more and more these applications. Not necessarily intentionally, but in a way that has produced all the significant downstream effects.

SREENIVASAN: When we think about these emergency applications, a lot of people will understand the idea of death penalty cases. And the Supreme Court had a finding late in the ’70s about this. What does that do to the context of where we are today?

VLADECK: In response to the reinstituting of the death penalty in the 1970s, we see the court move towards resolving all remotely contentious emergency applications as a full court. And we see the court move away from having oral arguments on emergency applications, having expended briefing, writing opinions.

And I think what got lost in the history is that, for 35 years, those moves, which I think are deeply problematic, we’re confined to the unique space of the death penalty. And so, we didn’t really talk about it much. We didn’t notice it much.

You ask people who clerked on the Supreme Court in the 1980s and 1990s about the shadow docket, what they remember is the death docket. The real shift, right? The move that the book tries to document from 2016 and ’17 onwards is all of these pathologies that have come to mark how the Supreme Court handled last-minute applications in the death penalty context have become normalized into context that have nationwide policy implications, whether it’s about President Trump building his border wall or whether it’s about the attempt to ban access to mifepristone on a nationwide basis. And I think even if that move in the early 1980s was remotely justifiable in the death penalty context, it just doesn’t hold up once the Supreme Court is handing down orders in this context that are having such massive legal and practical impacts on the real world.

SREENIVASAN: I know that Justice Alito is opposed to the idea. Did you have a chance to speak to any of the justices about this practice or have they been making statements that you can cite on the record about how they feel about this?

VLADECK: So, I mean, I think the best evidence we have is what they have been writing publicly. And so, Justice Kagan, I think, has been leading the criticisms of how the conservative majority has been using the shadow docket. She’s now written, I think, four separate dissenting opinions in some of these cases where she’s called out not just the result but the procedural shortcuts that the majority was taking. But I actually think the most interesting figure here is Chief Justice John Roberts. Roberts, who I think, is deeply sympathetic to the results the court is reaching in all of these cases, has been dissenting a lot with the other — with — you know, with Democratic appointed justices.

In the Texas abortion case, in the Alabama redistricting case, in a clean water case from April, 2022. And in that last one, in the April 22 clean water case, he actually joined Justice Kagan’s dissenting opinion to accuse the five other conservative justices of taking procedural shortcuts. And I think this is such an important point because it really underscores why criticism of the court’s behavior is not necessarily partisan. You can be a — you know, died in the more conservative judge, like John Roberts, and still think that there’s a right way for the Supreme Court to hand on these rulings and a wrong way for the court to hand down these rulings. Now, I think the fact that Roberts has been publicly critical is such a telling part of the story.

SREENIVASAN: So, what is the check that exists on the Supreme Court, perhaps a check that we are not exercising today that we use to find normal because these are lifetime appointed justices, and at some point, there is a decreased confidence in how they’re doing their jobs?

VLADECK: Yes. I mean, this is, I think, a big part of where we are. And in that respect, I think the rise of the shadow docket is actually just a symptom of a broader disease. This is where I think we also have to bring in all these stories about the justices’ ethics and financial disclosure.

Historically, the principled checked on the court was Congress. Indeed, until 1935, the Supreme Court sat in the capital. And I think part of what has gotten us to where we are is that, progressively and especially in the last 35 years, Congress has basically taking its hands off and had gotten out of the business of being part of this ongoing interbranch dialogue about keeping the court in its lane. So, when John Roberts writes back to Illinois Senator Dick Durbin and says, I’m not going to come testify before the Senate Judiciary Committee because of separation of powers concerns, I think that’s a reflection of a very modern and not remotely historical view of the separation of powers.

Historically, the court was part of the conversation as opposed to today where it seems so completely above and oblivious to it.

SREENIVASAN: What’s happened to our public confidence in the Supreme Court over the past few years?

VLADECK: I mean, if you look at, at least, the survey data that’s out there, it’s going down. And I think this is a bigger problem than the justices really, I think, want to admit publicly. It’s not that the Supreme Court should be guided by public opinion polls and it’s not that the Supreme Court should just do what a popular majority wants it to do, but the Supreme Court does not have an army, right?

The reason why we as a polity follow the Supreme Court is because there’s, at least, some substantial belief in the court’s legitimacy as an institution. The more that the belief erodes, the more that we lose faith in the idea that the justices are exercising judicial power as opposed to political power.

I think the more dangerous a slope this means we’re on. Because if we get to a point where there are large swaths of the population that refused to accept the legitimacy of decisions from the Supreme Court, then the Supreme Court, at that point, becomes almost a pointless institution, one that can’t stand up when we need it to do to the majority. That would be a huge problem for our constitutional system and it’s one that, frankly, the justices should be at the front of the line in trying to avoid.

But from the perspective of the court as an overall institution, we see a bit more of a historical ebb and flow that suggest that our current moment, however frustrating and exasperating it may be, is not one from which we can’t recover. What we need though is we need to have consensus that the court, as an institution, ought to be more accountable, that Congress ought to be more involved in relationship with the court about its docket, that the justices should be more committed to providing principled rationales for their decisions, even if we’re not all going to agree with them.

And finally, that the justices should, I think, be less in the business of criticizing critics who are worried about the court, who are trying to save the court from itself. That’s why, I think, this is such an important moment for the court, but also one that has a lot of — sort of, a lot time, a lot of games still be played.

SREENIVASAN: Professor Stephen Vladeck from the University of Austin, and author of the book, “The Shadow Docket,” thanks so much for joining us

VLADECK: Thank you for having me.