SIO447: Steve Vladeck on the Shadow Docket

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:16 Thomas: And welcome to Serious Inquiries Only. This is episode 447, and boy do I have a good one and a fascinating one for you today. So, about a year ago, I talked to him about his book that was coming out called The Shadow Docket. Maybe you're familiar. Publishing it now. It's a really good conversation. I wish it could have come out earlier.

Published it now, and I want to use it as a plug because Steve Vladek is coming on Opening Arguments next week, and it'll be kind of a sequel to this conversation. It'll be interesting to see what has changed in a year, but this was really good one, it was about the shadow docket, of course, his his book that you should go out and read if you haven't.

It's about court legitimacy and lines and the boundaries of that, where he thinks it is, where I think it is, and what can be done, and I am really excited to finally get to put this out there. So thank you so much for listening. And if you'd like to skip this little break, go to patreon.com/seriouspod, support the show. There's a bonus coming out imminently, little seriously awful hypotheticals involving a man and a bear. If you know, you know. Lydia and I had a conversation on that.

It was a lot of fun. Right. After this little break that you don't have to hear if you're on patreon.com/seriouspod, it's Steve Vladek about his book, The Shadow Docket. Steve, how are you doing today?

0:01:40 Steve: Doing well, Thomas. How are you?

0:01:41 Thomas: Doing great. I'm excited to, well, I don't know. Is it exciting to talk anything Supreme Court or is it just varying levels of depression and anger? I don't know. What do you think? You're the expert.

0:01:52 Steve: A little bit of both?

0:01:54 Thomas: Yeah, that's right. We'll be excited about it. Excited to talk about your new book coming out, The Shadow Docket. First question, I guess, right is, of all the things wrong with the Supreme Court, how did you land on writing a book about this particular one?

0:02:09 Steve: I actually think, and the book tries to persuade readers that the shadow docket itself is actually emblematic of much bigger, broader institutional problems with the Supreme Court, that it's actually pretty hard to understand both how the Supreme Court came to occupy such a central dominant role in contemporary public policy and why this behavior is so problematic from an institutional perspective without understanding the shadow doc, without understanding all of the ways in which the court actually operates behind the scenes to consolidate power, to hand down rulings that affect all of us, even in contexts in which they're not explaining themselves. And so the sort of the ambit of the book is not just like, here's an obscure corner of the Supreme Court's workload, but rather hiding in plain sight is a whole bunch of pretty important lessons about the court as an institution that really helped to put into context what's so problematic about the way the current justices are behaving.

0:03:07 Thomas: So, well, why don't we reset then? And just in case anyone's not familiar, you want to give us kind of the basic 101 on the shadow docket, what it is, how it's evil, all the, you know, basic stuff.

0:03:16 Steve: It's not a formal thing. It's basically an evocative shorthand that a Chicago law professor named Will Baude coined in 2015 to describe basically everything other than the Supreme Court's merits docket, everything other than the 60 to 65, you know, signed decisions in argued cases that the Supreme Court hands down each term. And Will's insight, which I have sort of shamelessly expropriated, has at its core the idea that like the Supreme Court as an institution is a, a whole lot more than the sum of its merits docket.

And that the sort of the way the court structures its docket, like how it picks and chooses which cases to hear, how it sort of decides how it's going to hear them. Emergency applications, when the question is, you know, a case makes its way to the Supreme Court, what should the status quo be one way or the other? Of that, I think, is, you know, an important part of what the court does.

And yet, Thomas, we don't talk about it, don't cover that part of the court's work. The public doesn't think about that part of the coursework. And so it literally and metaphorically really is in the shadows, not as a pejorative, but just from the perspective of inscrutability and obscurity. And, you know, sort of the ambit of the book is to say, hey, guys, here's the history of how this power, how these practices have evolved. Here's how the court has used unsigned, unexplained orders to consolidate its authority, before turning to here's why what the court's doing today with these orders is even worse.

0:04:44 Thomas: It's like that old jazz thing where it's, like, no, you got to listen to the notes. They're not playing. You know, it's that. You got to listen to this stuff that they're, well, I guess they are still doing it, but it's not really an active decision where we get to read, you all know, the dissent and the, and then all the detail. It's, it's kind of the, the stuff we, it's not an official thing. They don't don, you know, shadow robes or anything like while they make these decisions, just the things they kind of don't take on. Is that kind of thrust of it?

0:05:10 Steve: That's exactly right. And I just go one step further and say, you know, it would be enough to describe it that way. But it goes even further when you think about it from the perspective of the orders the court issues, these unsigned, unexplained orders are not just sort of, we're staying out of this. It's oftentimes, you're issuing this order and that order produces, is Thomas, massive downstream, real world, substantive and/or, you know, practical effects. So, you Know, a couple of examples, right? The OSHA vaccination or testing mandate that the Biden administration had proposed in the middle of the COVID pandemic, blocked on the shadow docket.

SB8, Texas's controversial six week abortion ban, allowed to go into effect on the shadow docket, right? Congressional apportionment, right, Alabama and Louisiana were both able to use congressional district maps in the 2022 midterms that lower courts all had held to violate the Voting Rights Act because of unsigned, unexplained orders from the Supreme Court on the shadow docket, which might have something to say with the Republican majority in the House. So these are rulings that even though they have no explanation, even though though they're obscure and inscrutable, are unquestionably having massive impacts on really, Thomas, all of us.

0:05:34 Thomas: Hmm. Yeah.

0:06:27 Thomas: Yeah, yeah. I think I, um, it maybe could have been the voting rights one, or maybe it was that horrible Texas abortion law when I think a lot of people might have become aware of this. So it's not just the things they're not doing. It's also, you're saying an active action, because I guess if we all understand the law to be one thing and we understand like we have certain rights, whether it's voting or right to choose what we do with our bodies, that kind of thing. And some asshole state somewhere, somebody passes something that's, you horrible and restrictive and takes away our rights and then the court says no we're not going to do anything about it, that's effectively them, like, away rights we thought we had, is that kind of what what you're saying here?

0:07:06 Steve: I mean, that's one species and that's an important species. I mean the SB8 case is a good example of that. Roe versus Wade became effectively a dead letter in the nation's second largest state 10 months before the Supreme Court formally overruled it in the Dobbs case. But that's actually just one piece of it. I mean, that's sort of passivity on the court's part, we're also seeing the court actively intervening.

0:07:14 Thomas: Yeah. Hmm.

0:07:28 Steve: So the OSHA case, the court is actively blocking a government policy. Back late in the Obama administration, the Clean Power Plan, blocked by an unsigned, unexplained five to four ruling of the Supreme Court. And one of the things that the book tries to put into context for folks who don't follow the Supreme Court as closely as people like me do, is that this is new, right? That if you actually go back throughout the court's history, yes, you know, there was always a mechanism for dealing with these so-called emergency applications. You didn't see rulings like these, where the court would issue these orders that had such massive practical and legal impacts that affect so many people. Like, this is a real significant difference and a change in how court is operating as an institution.

0:07:28 Thomas: Yeah.

0:07:51 Thomas: That That was actually going to be my next question because I, I saw, uh, even in the book blurb you say, you know, since 2017 is kind of when it's really taken off. I'm wondering why do you think that is? And I'll combine it with another question I had, which is it's not as though Republicans and, you fundamentalists who are on our court, it's not as though they're like shy. So why the shadow? You know, why? Why is it a shadow docket? Why don't they just openly do this in our faces like they indeed did with with striking down Roe? So I, it's kind of compound question there, but why did it change? And why, I mean, they don't seem again, shy to shove this down our throats. So, so why such use of the shadow docket in this way?

0:08:48 Steve: Yeah. You know, Tom, it's a bit of a subjective question and I can't answer fully, but I think we have a couple of data points. So the real shift starts happening in the mid-2010s. We start to see the court, as the book sort of explains, from 1980 into the 2010s, we had seen some of this behavior, but only in the unique and uniquely limited context of last minute applications from death row inmates to stay executions. And those, I mean, that's a story unto itself, but like whatever you might say about the bizarre procedural shifts and accommodations the court makes in the death context, they were limited to the death penalty.

And so the shift is really partly a function of the pathologies of the death docket expanding into other contexts. And I think some of that is political, right, that the sort of the political tide shift, some of that's doctrinal, that the Justices become more willing to stretch these precedents. But the two biggest inflection points are, one, the Trump administration, where for the first time, the executive branch is regularly coming to the Supreme Court to seek this kind of emergency. I mean, just during the Bush and Obama administrations, from 2001 to 2017, the Justice Department goes to the Supreme Court for emergency relief a total of eight times, so once every other year. In four years, Trump goes to court 41 times, right? This flood of applications from Trump.

And big development number one and big development number two: once Justice Kennedy retires in 2018 and is replaced by Justice Kavanaugh, right, now you also have sort of the disappearance of the moderating force in the middle of the court. Now you have five votes who are regularly inclined to grant relief in contexts where previously they might not have been. And so the data backs us up. The data suggests that things really start accelerating and, to my perspective, running off the rails shortly after Justice Kavanaugh's confirmation.

And then when Justice Barrett is confirmed in 2020 to replace Justice Ginsburg, the wheels come totally off and the court just starts doing all kinds of stuff on the shadow docket that really we had never seen it do before.

And Thomas, to your last point, the shadow docket, so I actually think that for a while, a lot of this was not intentional, that for a while, like in the Trump cases, the court was really just reacting iteratively and never sort of took a step back, like the frog in the boiling pot of

0:08:56 Thomas: Okay. Yeah. Wow. Yeah,

0:11:22 Steve: Water, right? Was already in the pot. And so it didn't appreciate how much the temperature was rising. Really only in the last year or two in of the COVID cases out of California, for example, where we see the court using the shadow docket while it has similar opportunities to say the same things in cases that are pending on the merits docket. And back to where I think the brakes really come off: when Justice Ginsburg dies, right? And when even Roberts is no longer the median vote, when now it's Justice Kavanaugh or Justice Barrett, who's the median vot on any kind of contentious emergency application.

0:11:41 Thomas: Yeah.

0:11:58 Thomas: Okay. So that, that makes sense. Cause earlier when you said there was five, four decisions again, as a, as a non-expert trying to understand just the mechanics of this. To reset a little bit. So it's like decisions not to take up cases. It's also, it also is entire opinions. Decisions that where it's, you know, you said five, five, six, seven, eight, four, but they just don'T write any explanation for it. Like mechanically, what are the different things going on here?

0:12:20 Steve: I mean, so one of the weird things about any the court issues, whether it's an emergency order or regular procedural order, is that just by tradition, they're not signed. So not explained, so there's often no analysis. And indeed, we don't even know who voted which way. I mean, the only way to know a vote tally in an order is if you can account for at least four of the justices in dissent, so, because we know, I mean we have examples of what are called stealth dissents, where maybe only one or two justices publicly say they're dissenting, but we actually know it was three or four. And it's a relatively small point, whether a decision is 7-2 or 6-3 doesn't change what the decision means. But I think it's emblematic of the broader phenomenon, which is that these decisions are inscrutable not just in what they say, but in who's saying it.

So just one example, there's an Alabama death penalty case from last year where the court actually blocked an execution. It's actually the last time the court blocked an execution. And we know that Justices Thomas and Kavanaugh and Chief Justice Roberts dissented. Also know that Justice Barrett was in the majority because she wrote a concurrence. And so we know it was at least six to three, but it might have been five to four. We don't know where Justices Alito or Gorsuch were.

And at least one of them had to be in the minority. Sure, it would be interesting to know why Gorsuch and Alito, who are not exactly sympathetic to 11th hour claims from death row inmates, voted for this one. And yet we don't even know that they voted for it, let alone why.

0:12:36 Thomas: Hmm. Oh, Wow. Wait a minute. This is blowing my mind. I've been actually paying attention to this stuff for a while. Are you saying that even like normal run -of -the -mill opinions where we get everything, we don't know the votes unless they write a dissent? Or do we know them in that case?

0:14:08 Steve: If it's a signed opinion, if the majority opinion says opinion of the court by Justice, I don't know, Kagan, then we know the vote because the tradition is everyone's accounted for.

0:14:15 Thomas: Okay. Gotcha.

0:14:17 Steve: And so somewhere in the court's decision, it'll say Kagan delivered the opinion of a unanimous court, or it'll say Kagan delivered an opinion in which these justices joined, right?

0:14:18 Thomas: Gotcha, gotcha. Gotcha? Okay.

0:14:28 Steve: Every order, like every single order, and indeed some opinions of the court, any opinion that's denominated per curiam, meaning for the court. We don't know the vote count unless there are four dissents. My version is that, like, this is not the problem with the shadow docket, but it's just sort of an emblematic complication of how when the court acts through these unsigned orders, right, what the court is doing is actually that much harder for us to parse.

0:14:35 Thomas: Okay.

0:14:53 Thomas: Yeah. And I imagine if you are trying to predict what they might do in the future, you know, to know what what the law actually is, it would be nice to know the reasoning of who voted which way, you know, and why. That seems pretty, I don't know, mandatory knowing how to proceed forward.

0:15:10 Steve: And I would say, I mean, Thomas, you know, it's if you are a lower court judge or a government official to understand why the court has blocked or not blocked, right, ruling or the policy in your case. But I actually think it goes even deeper. I mean, on the rare instances when the Supreme Court, or at least the justices thereof, reflect upon the sources of the court's legitimacy, they invariably end up in the same place, which is that the court legitimacy is an outgrowth of its ability to provide principled justifications for its decision making. And the point is not that you or I or anyone else agrees with those principles. The point is that we agree that they are principles. And fact that we disagree with the principle doesn't matter as long as we agree, like, hey, they're doing the judge thing, even if it's not the thing I would do. Shadow docket exacerbates the legitimacy problem because when there's no opinion, there's nothing to push back against the appearance that the justices are voting based on political or partisan interest and not based on commitment to any broader principles of future applicability.

0:16:07 Thomas: Yeah.

0:16:16 Thomas: Yeah. It's like, I may not agree with the speed limit. I might want it to be a little faster. We got newer cars where we can go fast and I don'T even notice, but like, at least I know no, there is a speed limit and it's whatever it is on a given road. It's like this way I, someone just ruled that I got a speeding ticket, but I don't know why, or, you know, like what the reasoning is kind of thing.

0:16:36 Steve: Then You won't know how fast you can drive tomorrow. Speeding ticket will seem to you arbitrary and capricious.

0:16:38 Thomas: Yeah, exactly. Exactly. Yeah. Yeah. Just to pick two words just out of nowhere. Right. Just off the top of my head. I think, what, I guess what, what tricked me for a second there is I guess you're saying some of these orders, they don't have to sign them. They don't have to write anything, but sometimes do they do. And it kind of looks like a regular opinion. Is that what maybe you tricked me up there?

0:17:01 Steve: Yeah, It's like once in a blue moon, the court will issue an opinion of the court respecting an order. And so, you know, the Court will like grant a stay and then write a short reason explaining itself. I'll just say that those are very, very few and far between. And even when the court writes an opinion in those cases, they tend to be much shorter than the typical opinion that we get from the Supreme Court. They're unsigned. I think just to put it charitably, Thomas, some of the ones in recent years have left a little to be desired when it comes to the analytical reasoning within them.

0:17:07 Thomas: Hmm. Hmm.

0:17:35 Thomas: Don't be charitable on my behalf because I have no charity for the Supreme Court. Don't go out of your way to be charitable. I don't, I've lost all, you know, kind of a benefit of the doubt with this court. Um, I, another, I know basic question that'll probably sound ridiculous to you, but like, could any decision be a shadow docket decision? What, determines what what's an order and what's in actual, you decision on the merit? Do they, how does that work? Like, how do they decide which is what, or is it a certain category of stuff that's an order versus a full decision on merits?

0:18:06 Steve: Everything that happens at the Supreme Court starts as an order. And the sort of the norm is the shadow docket. Right? I mean, so if you lose a case in the Court of Appeals and you ask the Supreme Court to take up your appeal, you're filing what's called a petition for certiorari, which is asking the court to issue an unsigned, unexplained order granting your case, granting your appeal, right, or denying your appeal.

0:18:12 Thomas: Oh, really? Okay. Yeah.

0:18:30 Steve: The thing about it is like the court's general sort of structure is to resolve everything through orders, except for those few dozen cases every term that, using an unsigned, unexplained order, the court chooses to give plenary consideration to, to have another round of briefing, to have oral argument, and then to hand down this like lengthy signed opinion on behalf of the court. One of the sort of basic points the book tries to drive home and beat everybody's heads is those are the exception. Even though from a sort of popular discourse perspective, that's where almost all public attention on the Supreme Court's focused. It's really, I mean most 1% of what the Supreme Court does by volume in any given year, not even usually that much. And, you know, the other 99% is not all equally significant, but that doesn't mean the other 99% is insignificant.

0:19:25 Thomas: Yeah, I guess just to make sure I understand, if they wanted to, if a court wanted to be, I don't know, evil enough, could the Supreme Court just essentially turn everything into a shadow docket, could they become a full shadow docket if they wanted to? It's sort of, that's the norm you're saying, it's like the default, right?

0:19:40 Steve: I mean, like, the court's docket is structured so that the court actually is going to take and resolve cases on the merits, but there's nothing in a statute that requires them to. I The Court's jurisdiction is now almost entirely discretionary. The justices choose which cases to hear. They choose which issues to decide within the cases they've chosen to hear. The number of cases the court is hearing on the merits docket has declined somewhat precipitously in recent years, so that, you know, over the last four terms, the court has been under 60 total cases each term. It hadn't been under 50 since the middle of the Civil War.

So, you, yeah, I mean, I think the reality is that, like, one of the reasons why I think we've seen this explosion of the shadow docket is because it has has become a lot more convenient.

Flip side and the point where I think there actually is some good news for folks who are a little worried about these developments is that I think at least partly in response to the far more visible public awareness and criticism of the shadow docket, at least so far this term, like as we're sitting here talking in April, the court has actually moderated its behavior on the shadow docket to a significant amount.

0:19:49 Thomas: Yeah wow yeah

0:20:50 Steve: It hasn't intervened nearly as often this term as it has in the recent past. It hasn't engaged in some of the same problematic behavior nearly as often as it has in the past. So I actually think that even though there's no formal constraint on the court using the shadow doctrine even more abusively, the sort of rise of public awareness and understanding and with it public criticism has actually pushed the justices to their ways, not entirely for the better, but also like not just frivolously for the better. I mean, some of these reforms are actually, I think, really meaningful.

0:21:18 Thomas: Yeah Like maybe they won't start riding around on billionaire's Nazi memorabilia collector's jets or not that we wouldn't go that far or I guess Maybe, yeah, or maybe they'll just start reporting it and not caring that they're doing it. I guess that would be the next small step.

0:21:31 Steve: Yeah, that might be a bridge too far, or too far.

0:21:42 Steve: But actually, at the risk of tying two disparate threads together, I mean I actually think that the sort of the ethics conversation surrounding not just Justice Thomas but the whole court is actually not as unrelated to the sort of the project of the shadow doctors that might seem at first blush. Because to me, they stem from the same core disease, which is a pretty appalling breakdown in the separation of powers.

In what had for the better part of the court's, certainly first 150 years, and really even most of its first 200 years, been a pretty healthy the inner branch dynamic where, you, the court had a lot of power, but it actually was in conversation with the political branches, with Congress, with the president about the shape of its docket, about its workload, about, you, and what kind of people we wanted on the court.

One really silly example, but like Chief Justice Berger, who, you, you know, no one really thinks of as like a leading institutionalist, started this tradition in the mid -1970s of giving a year -end report on the state of the federal judiciary that he envisioned as some kind of like judicial State of Union address. And the idea was that he was going to identify places where the courts needed help from Congress or from the executive branch and basically like, hey, here's our shopping list for next year.

You know. The virtue of that, that was not just to have the court articulate what, you know, that's the big problems. It was the court tacitly conceding that Congress could help, that Congress should help. And what's remarkable about, you know, Chief Justice Roberts has continued the tradition of these year -end reports. But starting in 2009, he stopped asking for things. Um

0:21:55 Thomas: Hmm.

0:23:24 Thomas: Hmm, wait, what kinds of things are we asking for? I don't understand. Nicer robes, bigger, huh?

0:23:28 Steve: Like Uh, increasing the budget for like maintenance, right, um, infrastructure, um, reforms, um

0:23:37 Thomas: This for, so for the whole entire federal, I don't know why I was imagining this is just the Supreme Court, like they're trying to get tricked out with all this stuff. Okay.

0:23:43 Steve: Both, no, it's it's I mean, I mean Berger viewed his job as sort of speaking on behalf of the entire fiduciary, including the Supreme Court. So one of my favorite examples is in his 1998 year-end report. So, so it dropped like New Year's Day 1999. Chief Justice Rehnquist excoriated Senate Republicans and incredibly critical of them for refusing to give up or down votes to President Clinton's judicial nominees.

0:24:09 Steve: Which, you know, if you know Rehnquist and his politics, you're like, wait, what? Well,

0:23:44 Thomas: Ah. Yeah and as we know that solved that problem right then and there and never again did we have any

0:24:18 Steve: No, right. I mean, no. Right. Think of how floored we would be today if John Roberts did that.

0:24:18 Thomas: Oh I know, yeah, yeah, definitely, I kind of surprised they didn't say anything during the whole Merrick Garland theft, did they, it's

0:24:25 Steve: Right. Right. No. And that's again, and a symptom of the disease. Right.

0:24:32 Thomas: It's crazy. Yeah.

0:24:33 Steve: But ties all these threads together is a court that is just completely unbeholden to anybody else and a court that is not remotely worried about being checked from anywhere else.

0:24:40 Thomas: Yeah, doesn't seem like the best system to me. I don't feel like that's a good idea. I know it's basically futile, but what do do about this? How do we, I mean, where are you on the court reform, pack the court, you know, whatever those kind of, I don't know, I was going to say movements, I d' n't know, opinions on what to do. Where are you on that?

0:25:04 Steve: So, I'm a bit idiosyncratic. I think reform is desperately necessary.

0:25:11 Steve: So, you know, making the reform conversation about adding seats to the court or about term limits or about other ways of changing the composition of the court sooner rather than later is to me deeply counterproductive and sort of misses the low hanging fruit, which is that the reformed conversation should start with just reminding Congress to do anything and sort of rebuild a healthy interbranch dynamic, at which point we'll be in a better position to figure out which reforms are the best. I will say I am not fatalistic about this. If for no other reason, Thomas, than because we already have evidence that the justices have been chastened.

That unlike on the marriage docket, unlike when it comes to, you know, Dobbs and Bruin and all these huge headline generating cases, we've seen the court change its behavior on the shadow docket in, if not direct response, then certainly at least contemporaneous response to a lot of this public attention and public response. Criticism.

And so it seems to me that for those who are down on the prospects of any court reform having any impact, here's evidence of how an engaged and enraged public may have already accomplished more reform than people would publicly want to admit.

0:25:30 Thomas: Yeah.

0:26:22 Thomas: Well, I mean, I hate to. Sorry, I'm a lot less positive on the on the court, maybe at the risk of I don't want to be a jerk, but like also Roe was struck down. So it's like, is it kind of like that old quote of you stab someone and then you take your knife out a half an inch? It's like you can't really be congratulating them for that, right?

0:26:41 Steve: No, I mean, this is not to sell. So again, I'm not cheering the court. I'm point is just that people shouldn't be fatalistic about the impact of public pressure and public pushback. And, know, I think the point is exactly right, because the are going to be the most entrenched and the least amenable to public pressure is the merits docket, right? Versus institutional procedural reforms that are not pitched as and not designed to curtail the court's power, but rather are designed to actually help bolster the court legitimacy and help improve the court ability to function, which is a project that, you know, I would actually think conservatives would almost be more supportive of than liberals, given where we are today. So, you know, this is why I'm a bit sort of unpopular with everybody. But I think this is also an important insight that is missing from too much of the current conversation.

Like, you a world in which it's not realistic to change the composition of the Supreme Court. And I think the politics of the moment is not realistic. Right? Already talking about other ways of reforming the court that are plausible, and that actually get at the core disease, which is not the identity of the current conservative justices. It's the absence of the current majority composed of whoever being remotely worried that anyone's going to push back on anything they do.

0:27:10 Thomas: Yeah, I don't know. Don't you feel like that is ultimately because of who's on the court, though, or at least who was in power? I mean, I'll put it this way. Has anything changed that led to this decrease in accountability? Because it seems like that's been written in from the beginning. Envisioning.

0:28:20 Steve: I don't think it was written from the beginning. I mean, so, you know, until 1891, Congress made the justices literally ride circuit, right? So every year, the justice would have to go out on the road and travel across the country and sort of go sit in local, local courthouses and hear local cases. There's no real value. Maybe in 1795, there was value to that. By the 1840s and 1850s, with advent of modern telegraphy, there's no value in that. Congress is doing that just to fuck with them and just to remind them who's boss. You know, same is true, like, it's not until, you know, President Taft comes to office, that there's any serious discussion of letting the Supreme Court even have its own building.

1935, the Supreme Court meets in the Capitol; until 1860, it meets in the basement of the Capitol. You know, what kind of powerful institution sits in the basement of another branch. You know, I guess there's no question that yes, today, the court exercises an enormous amount of unchecked power.

Part of the point of the book is to remind everyone that it wasn't always so, and there are ways in which the rise of the shadow docket, the rise of the court's ability to set its own agenda, is directly related to, and indeed was intentionally designed to, give the court more institutional autonomy, authority, and independence. And one of the ways to push back against that isn't to change who's on the court, It's to restructure the relationship between the court and the rest of the government.

0:28:36 Thomas: Oh, yeah.

0:29:50 Thomas: You don't think that's going to still be read as a threat to their power? So like, I guess, yeah, like maybe some specifics, like what kind of low hanging fruit are you envisioning that won't be, you know, looked at as some existential threat to their power by conservatives?

0:30:04 Steve: I mean, I would like Congress to bring back a whole bunch of what's called mandatory appellate jurisdiction. So force the court to actually take more cases and not just in the abstract, force the court to take some of the very kinds of cases that they're dealing with only on the shadow docket. Death row prisoners who have a challenge to the method of execution. Well, Congress could pass a statute that says the Supreme Court must hear a direct appeal. And you can't be executed until the Supreme Court resolves your appeal. Would take away a whole chunk of cases from the emergency docket in one fell swoop. You are worried about nationwide injunctions. Well, make any nationwide injunction immediately appealable to the Supreme Court and force the Supreme Courts to hear the appeal.

Those are ways that you can expand the court's docket and you can expand the court's workload. That's not actually undermining the justices power. You're not saying, hey, Justice Kavanaugh, you can't hear this case. You say, well, you're here in this case, we want to hear some other ones, too. Congress can also talk about, you know, giving the lower courts more ability to put cases on the Supreme Court's docket. And those are just sort of some examples.

Congress could talk about the Supreme Court's budget again in ways that are not just entirely perfunctory and pro forma. And, you I think there's a tendency on the part of conservatives these days to think that any court reform is necessarily good for liberals and bad for conservatives. I don't think that has to be true. One of the things that I find most interesting about looking at the Supreme Court is, in the shadow docket cases, we often see John Roberts dissenting with the liberals. You know, that's not because, as some right-wing media might portray, he's a squish, It's because he's institutionalist.

0:30:18 Thomas: Hmm. Yeah.

0:31:45 Steve: And he understands that it's antithetical to a long-term conservative agenda for the court to lose its legitimacy, which is why it seems to me that even those who love the current court, who want the current majority to be ascendant forever, should also want the court to actually be perceived as an institutionally healthy place, even if it's handing down decisions that alienate large chunks of the American people. I mean, Thomas, the story of the Supreme Court over its entire history is that it has seldom been a force for good in social justice, but it has functioned at a much higher level of institutional legitimacy and institutional soundness for much of that history, even when it was doing bad substantive things.

0:32:32 Thomas: I hear a lot there, I think that, I guess my impression has been, boy, I sure hope the court does less. Like the fewer things they touch, maybe the better. Like hopefully they don't, maybe they forget about some of the rights they haven't taken away from people yet. But counterintuitively, it sounds like you're saying do more, get little hands on more things. But I don't isn't that just going to result in, OK, maybe it's less shadowy, but they're just in the bright light of day ruining our lives.

0:33:03 Steve: So, I mean, at the risk of making a plug, this is why I hope everyone reads the book, The insight that I think is counterintuitive, but actually deeply supported by the court's history, is that part of why the court was not an all-powerful, dangerous institution at the end of the 19th and beginning of the 20th century is because it was inundated with ordinary run-of-the-mill appeals. Those ordinary run-of-the-mill appeals took time and it took energy.

0:33:08 Thomas: Sure. Away.

0:33:31 Thomas: Like literally just take up the hours in the day that they could be ruining our lives with, with more bland stuff.

0:33:37 Steve: I mean, that's part of it, but it's actually, I think, it's one step more nuanced than that, which is that the sort of, when William Howard Taft, first as president and then as chief justice, is aggressively pushing to expand the court's certiorari jurisdiction, its discretion over its docket, his entire argument was that he wanted the Supreme Court to function more as as a constitutional court, as opposed to a Supreme Court of Appeals, right?

Are sort of, there are two different models for a court of last resort. There's the Supreme Court of Appeal, which is just the last court in the vertical hierarchy. There is nothing special about it other than that it goes last. And then there's the constitutional court which is actually like functionally different. It's supposed to be doing a different thing. It serves a different purpose. Some countries divide these functions. Germany divides the Supreme Court of Appeals from the constitutional court.

Israel, it's the same court, but they actually literally call themselves something else, depending upon the context. We blend it, right? Our constitutional system blends those two functions. And Taft's insight in the 1920s was the way to make the court a constitutional court was certiorari, was to expand the court's discretion. Well, maybe the flip of that is equally true, that maybe it would be better if we move the pendulum back toward it being more of a Supreme Court of Appeals. And that starts with giving it more to do.

0:35:03 Thomas: You, again, apologies for being a lay person, but can you kind of spell out what, that what means in terms of the kinds of cases you're, I guess I don't know what it means when you say just making it a court of appeals versus whatever else. Like what kinds of, I know, cases or decisions does that mean they would take on or not?

0:35:20 Steve: I mean, so, there are literally thousands of cases every year that have important questions of federal law in them or that have some, you know, maybe modest division in the lower courts about, you know, that's sort of caused by them that the Supreme Court doesn't take up, where the lower courts effectively have the last word. And the Supreme court, we never know why the court doesn't pick up the last words. Some of them, like, you know, there have been cases I've been involved in about whether, like, you can court-martial any of the 2 million retired service members for offenses they commit after they've retired.

0:35:53 Thomas: Hmm.

0:35:54 Steve: Seems like a pretty big question. Court hasn't taken that one up. There are financial cases that actually have really important implications for technical industries that the court stays out of because it doesn't want to intervene and mess stuff up. One part of the court's docket that has fallen off the most completely in recent years is direct appeals from state courts in criminal cases, where state criminal defendants are challenging their conviction or sentence on federal constitutional grounds. The Supreme Court used to take a ton of those cases. Last term for which we have complete data, they took two from entire country, right? Different people, Thomas, and different lawyers are going to have different answers to which cases should the court be hearing that it's not. My point is just that there's a ton of demand out there.

0:36:29 Thomas: Wow. Yeah.

0:36:42 Steve: Wanted to actually assert a modicum of control over the court, and I think, put the court back into a healthier equilibrium in the system, it would, you know, at least have a conversation, it would hold hearings, it would talk about how the court's docket has gotten so radically out of kilter, and how we should bring it back. And you know if there's nothing else folks take away from the book or from at least this conversation, these are not perfect and complete solutions.

None of this is going to bring back the Warren court overnight. I actually do think it's in our interest to have a court that is legitimate and that is perceived as legitimate, even if it's staffed by people with whom I vehemently disagree. And the question we should be asking ourselves is why, if at various earlier points in the court's history, the justices were part of this interbranch conversation. And that meant that like the bad decisions were not like legitimacy-destroying. What is different about today?

And to me, what is different about today is that that conversation has stopped. And the court is just doing whatever the F it wants. And that's true in the procedural context. It's true in the substantive context, it's true in the, you know, free vacation on a private jet and private yacht context. And that mentality, that sort of monarchical approach to the judiciary is, I think, the root of all of the more specific problems we're seeing.

0:38:06 Thomas: That's interesting. I just would have thought it went the other way. I thought it would have been like, you know, federalist society and the kinds of people and their, you know, absurd jurisprudential theories like that came first. And then after that, they broke the system in ways that was beneficial to them and their cause. I kind of think of it going more that way. But yeah.

0:38:22 Steve: I I take the point, but I think that the question is, why are the circumstances such that people like that are in a position to do what they are doing? Right. Fortas resigned in 1969. Right. And sort of the last day on which there was a Democratic majority on the Supreme Court, May 14th, 1969, Fortas resigned because of mounting public pressure, mostly from within his party, about alleged financial improprieties, about his shady relationship with the financier. Right. The circumstances were such, the political context was such, that people who might otherwise have been inclined to do whatever they wanted to do weren't actually in a position to do that and faced consequences when what they were doing was made public. Right. Contrast the public reaction to Fortas with the public reaction to Thomas. And that suggests to me that it's less about the people and more about the breakdown of institutional control.

0:39:24 Thomas: Yeah. OK, I guess I just thought of those things as kind of like once they're broken, they're broken in those kind of norms, like in the same way that Trump broke so many norms where, you know, now it's like, oh, we don't have to do that. We don't have to be ethical in this way or there's no accountability. I guess we'll never do that again. I don't know how you get that back. Put that genie back in the bottle, you know, without exerting some sort of power over the court in a serious way.

0:39:48 Steve: Well, I agree with that. I just think that exerting some sort of power over the court in a serious way starts at the bottom, not the top.

0:39:54 Thomas: What's the bottom? Us? Who's the bottom?

0:39:57 Steve: Bottom is step one, see the forest and not just the trees. The bottom is, first, let's start talking about the court as an institution and not just as the specific personalities and the merits docket. Let's actually talk about what the institution is doing and what's unhealthy about the institution's behavior. And then step two is let's talk about institutional reforms that actually have any chance of succeeding, right? Institutional reforms that are designed not necessarily to reign court, but to actually put the court back into a healthy relationship with the other branches. Because, guess the two things I would just sort of say is, one, earlier times in American history, when the court was more subject to these checks, we saw results when it appeared that the court got too far out of kilter, right? I mean, the switch in time that saved nine in 1937, right, only after FDR points a gun at the court.

0:40:10 Thomas: Hmm.

0:40:48 Thomas: Well, yeah. Right. But he's threatening to do the kinds of things that I want to do, which is pack the court, right? Not that he didn't threaten minor tweaks at the margins.

0:40:52 Steve: Um. But he had the means to do it, right? And so, and threat was effective, right?

0:41:01 Thomas: Yeah. Mm-hmm. Well, that's for sure. Yeah, you can't threaten something that you have no chance of doing. I agree with that.

0:41:08 Steve: And so, what - but what that suggests is that there are historical examples of the court changing its ways in response to genuine, right, and legitimate, um, from the political branches that actually had a chance of succeeding, right? Point number one is that, like, like, hey, there's historical precedent for this. Point number two is nothing else is working. So shouldn't we at least try this before we give up?

0:41:31 Thomas: Yeah, I think we should try every tool in our toolbox. I guess where I was coming from on this is, I, maybe it's a more, I, I don't know, radical position or something, but I find it fundamentally unjust that the party that has lost, you know, almost every popular vote for, I don't know, decades has gotten to choose so many of these nine incredibly important people who seemingly have infinite power over us. That's just not fair.

And it feels, it just doesn't feel like enough to tinker on the margins. I take your point about what we can and can't do. I guess I was hoping, or I don't know if I was hoping, but I was thinking the path forward was getting enough people who don't care about the filibuster to where we can threaten to, you know, do the court in the same way that FDR might've threatened to do that.

That doesn't feel that far away to me, assuming we could win a few more seats and put a few more people in who don't care about the filibustering. Is I guess my question to you is, is that something that you fundamentally don't want to do, or you just think we aren't really close to being able to do.

0:42:30 Steve: Both.

0:42:31 Thomas: I don't

0:42:32 Steve: Right. I mean, it's because like my, and I've written about this on substack and I wrote about this elsewhere. My hostility to court expansion has nothing to do with a lack of anger about how how Republicans have abused the court. It I don't disagree for a second with those who think it would be payback, right, for a lot of misdeeds by,

0:42:56 Thomas: I don't know if it's payback. It's also just getting things to where they should have been. I don't know.

0:43:00 Steve: Okay, but Thomas, here's the problem, right? It's also a race to the bottom at that point. And so, you know, once the Democrats assume that the votes align and the stars align, and a bill to add two to four seats to the court somehow makes it through both chambers and onto the president's desk, I don't think it's that far out of the realm of possibility that the Republicans, the next time they control both chambers of Congress and the White House, would add eight seats to the court. And then the Democrats, the next time they're in control, would add 12 seats to the court. And all of a sudden, you've got a Supreme Court with 37 justices and no credibility because it has been absolutely appropriated and exploited, to reflect the wills of the current political majority. And,

0:43:28 Thomas: Sure.

0:43:48 Thomas: Yeah. Well, that's what it has done, though. I think we're already at that point. We just don't have enough people realizing it.

0:43:54 Steve: I guess this is where I just think you and I disagree. Like, I think there are a series of both incredibly unfortunate events and really arrogant behavior by Republicans, right, has created the current majority. But Thomas, the history of the Supreme Court has lots of stories like that. I mean, the composition of the court at any moment in American history is and was a function of fortuity and political machination and manipulation. And I think that's of itself a problem, but it would be blown to smithereens by the notion that anytime you don't like the the current court, you just add seats to it. Like, to me, that's a road to destroying the court as an institution. And there are plenty of progressives for whom that is a feature, not a bug. I don't begrudge them that. I'm just not one of them.

0:43:57 Thomas: Sure, yeah, yeah. Yeah, sure. Yeah no, no. I, I, it's, it's a healthy disagreement here, and I think that, I guess where I'm sitting, it, It's not any time we disagree with it. I think the other variable is just the shamelessness, which I think you would agree, has just reached a new level. You didn't used to be able to, sure, there were swings based on politics, but you didn't used to predict exactly how every justice would vote based on their politics. And more and more, you can.

I mean, more and More, it's just very straightforward on these important issues. You know where they're going to vote based upon who they were nominated by. And so, that has meant that it is more explicit. It has been just a political arm and they have no respect for, you know, stare decisis. They have disrespect for a bunch of things that I think are very important in order to have a legitimate court. I think we've already lost a lot of things.

That are very, very important and trying to bandage it and restore the court's honor when it's in this position that's in now almost feels to me, and I take your point, maybe maybe that is why for some progressives, perhaps like me, it is a feature, not a bug. I almost would rather have people realize how illegitimate it is than help its legitimacy at a time when it's doing things like, I don't know, striking down Roe v. Wade, which to me is, it's insane. I don't think, I think that just cannot be understated how backwards and horrible that is. Like just

0:46:11 Thomas: Definitionally, overturning Roe vs. Wade to me makes it illegitimate. It's just not something, think, like, there are, it's not as though if there was a 5-4 conservative court that made some decisions I don't like, that I would say, okay, down with this court, let's just pack it. It's it's the the just shamelessness and depravity of this current court. Calls for extreme measures. Sure.

0:46:31 Steve: I mean, I guess I'll say two things. The first is, I think for anyone who wants to fully understand exactly what's so problematic about how the current Court behaves, I think the book is deeply in line with that. You may draw different conclusions away from that behavior than I think you do. And that's as it should be. Right? But like, you know, the sort of whatever you think the end game is, the first step should be a more comprehensive, holistic way of talking about the court and understanding the court.

0:46:42 Thomas: Sure. Yeah.

0:46:58 Steve: I mean, Like, Dobbs, Dobbs, I mean, let's just, you put a sort of spicy procedural point on Dobbs, the questions the court agreed to decide in Dobbs had nothing to do with overruling Roe in the first place. So do we get to a point where the court can actually take up a case on one ground and decide it on a second? It's a story that people don't know and don't understand and ought to be told.

0:46:58 Thomas: Yeah. Yeah. Sure.

0:47:20 Steve: The second point is that I actually, and I think this is where you and I may have a profound disagreement, I actually think think that Dobbs is a terrible decision, but not an illegitimate one.

0:47:30 Thomas: Interesting, hmm.

0:47:32 Steve: That is because when the Supreme Court is exercising authority that both Congress and the Constitution have given it to interpret the Constitution, a power I believe it has, right? The fact that they interpret the constitution in a way that I find completely disgraceful doesn't make their decision illegitimate, it just makes it wrong. Versus, right, the court exercising power and acting in ways that are not what Congress and the Constitution have authorized, versus the court doing things that are non -judicial, versus, you know, acting in a way that are destructive of the sort of the constitutional separation of powers, Right? That's where I think we cross the line from incredibly wrong, embarrassingly wrong, stupid, to lawless.

And that's where I actually think you could make a case that for as bad as some of the court's work on the merits docket has been in recent years, cases like Dobbs and Bruen, that the shadow docket's worse, because at least in Dobbs & Bruen they write an opinion for us all to sit around and mock, right, and for us to sort of publicly talk about, here's what's wrong, here is why the the court's justifications don't hold up. Here's why you should disagree with the court when it says X, right? In the shadow docket, we got nothing to point to and nothing to disagree with.

0:48:08 Thomas: Yeah. Oh.

0:48:45 Thomas: Yeah, I, I mean, I, I think I could agree with you there. And of course, one way or the other, I do recommend people check out The Shadow Docket. I'm sure it, like you say, having an understanding of what's going on, is, uh, the way forward no matter what, regardless. So definitely recommending the book, and I'll of course include a link and everything in the show notes.

Um, guess where I'm coming from, and I do appreciate you engaging cause, uh, you know, I, my mind could certainly be changed, is I don't think the only thing that makes someone illegitimate, or a court or an institution illegitimate, is breaking the letter of the law. You know, it strikes me almost like just following orders or something.

I think that there's a, like, for example, if somehow, just as a hypothetical, the Supreme Court tomorrow just issued infinite rulings that reversed everything that it had already done, if that's something they have a right to do, you could probably construct a way better hypothetical than I could, because you know more about it. But like, I guess the point I'm getting at is there has to be a line at which, even though they're only doing things they are technically allowed to do, it becomes illegitimate.

Don't you think? Don't you think there could be a line there? I don't know where it would be for you. For me, it would be something like insane, like overturning Roe v. Wade. That would be like the insane, I don't know why I thought of that hypothetical, that's so insane it'll never happen. But overturning Roe v. Wade would be that insane to me, where it just completely, apologies for the sarcasm, undermined the legitimacy of the court. What do you think that line would be for you?

Is there something they could do, or a series of things they could do, that even though they technically have the power to do so, is so out of line that for you it would be illegitimate?

0:50:14 Steve: I think a pattern of overruling precedent, as you suggest, right, I think would be, I think, deeply illegitimate. But the problem with Dobbs, I mean—listen, I'm not defending this decision. I think it's abominable, and I think it's disgraceful. The problem is that it can't be illegitimate just because it overrules a precedent, right? There has to be something about it beyond it overrules Roe that makes it illegitimate. Otherwise, what you're saying is that it's always illegitimate for the court to overrule prior precedents.

0:50:43 Steve: And we know that's not true. Indeed, we don't want it to be true.

0:50:43 Thomas: I think so. I mean, if If they overruled, I don't know, something of the civil rights kind of stuff again, I'm not the expert, but like I think there are things that are so morally abhorrent if they overruled them, even though they have the right to, then I think that's illegitimate. I think there are lines of moral progress that we have made as a society, and the right to abortion is one of those to me. And that there are things that they cannot cross. And it's not just because it's a precedent.

0:51:15 Steve: Is Brown illegitimately for overruling Plessy?

0:51:18 Thomas: I don't know. I think the point was there are lines of moral progress we've made. Again, I think I just said it's not about overruling a precedent, it's about what that precedent is.

0:51:29 Steve: But I guess what I'm trying to say is, I mean, moral progress vis -a -vis segregation was made in the North to some degree, but not comprehensively before Brown. And it certainly wasn't made in South. Listen, I'm not trying to put you on the spot. I'm just trying to say that I think this is hard. And I think that the line between incredibly wrong and illegitimate is hard to draw. One can believe Dobbs is legitimate, but incredibly wrong and wrongheaded.

0:51:50 Thomas: Sure.

0:51:50 Steve: Think the difference is actually mostly just a matter of degree at that that point. The question is, what makes the court legitimate in the first place? And it seems to me that the question about the Supreme Court's legitimacy at least starts with the court's ability to explain itself, not to persuade you that they're right, but to persuade you that like they're ruling this way because they're committed to some kind of principle.

0:51:53 Thomas: Yeah. Right.

0:52:13 Steve: And it's a principle you vehemently disagree with. Maybe it's a principle you absolutely believe the justices have a right to believe in. I guess I just, I die on the hill that as long as it's principle that they're willing to apply in other cases in which it's implicated, that's what Article III means when it gives them the judicial power of the United States. And that's why what I'm fighting for is not to take away that power, but rather to incentivize the justices to exercise it in a way that is more accountable and responsible, so that when you talk about the sort of the unpopularity of Dobbs, right, and when we talk about like, you public support for Roe versus Wade, that actually registers more than it clearly did term.

0:52:13 Thomas: Yeah, yeah. I I think that might work if we had any recourse, but we don't. We have no immediate recourse. We may theoretically have some sort of recourse when another justice dies or retires, but even then, then it goes from what, 7-2 to 6-3? I think, yeah,

0:53:13 Steve: To thinking about the court solely as a function of who the justices are, as opposed to thinking of the court as an institution that has institutional relationships that can be tightened, strengthened, and used the court in.

0:53:26 Thomas: Well, yeah, it may just be a fundamental mindset disagreement. I, the point of the going down the road was, you believe just philosophically, and again, I don't have as much knowledge to bring up the specific cases and examples, but I just would think philosophically there isn't a bright line between did they do something they're technically allowed to do or not, and that is what determines their illegitimacy, or did they doing something that's so abhorrent they lost legitimacy because of that, in a way I think it goes beyond just strict readings of rules of what they can do. I mean, a lot of what they've done with religious of church and state is just so mind -blowingly counter to what the founding principles even of country are. I feel like at a certain point, you lose legitimacy even though you're still technically playing by the rules.

0:54:14 Steve: Mean, I guess, so I know that we want to do another hour on this. I guess I'll just,

0:54:18 Thomas: No, no, it's okay. Feel feel free, last word on it and we can move on.

0:54:22 Steve: That I think it has not been true for most of the court's history that the court decisions have been guided by moral imperatives. And it has not been true that the court's decisions have reflected social good, as contemporary progressives would understand it. That in fact, it's actually entirely aberrational that for a remarkable 20-year period from the mid-1950s to the mid-1970s, the court played this role in our society. And it was never true before that point. It hasn't been true since. And so, if we're going to tell the whole story of the Supreme Court, it's a story that is much messier and uglier and more technical than the, you know, the court was great until seven years ago, and it's been all downhill ever since.

Um, Then the question is like, why, like, you know, what made that story complicated, what are the pressures that sort of pushed and pulled the court in different directions, and, you know, again, I, I don't know that everyone's going to agree, I, I, I know everyone's not going to disagree on what the cash out is for what we should do going forward, I just think that we all at least ought to be on the same page of starting from the proposition that before we start really sort of comprehensively diagnosing what's wrong with the court today, we try to understand everything the court does and how we got to a point where the court is doing all the things today that we find so distasteful.

0:55:14 Thomas: Agreed there. Yeah, absolutely. Do you see anybody going down the road that you would like to go down? Anybody in Congress? Is there any bills, anything that's like kind of doing the things or proposed doing the thing that you want to do along these lines?

0:56:05 Steve: Mean, there's discussion, there is interest. I mean, in 2021, Congress held two hearings on reforming the shadow docket. One of them was a Senate Judiciary hearing right after SB8 that was entirely co-opted by sort of the fight over abortion. One was a House hearing in February 2021 where no one was paying attention and there's actually remarkable consensus among the members that some of the Supreme Court's procedural behavior was problematic, that there was a need for reform, that there was actually stuff Congress could do that would not be perceived as an attack on the court.

And so, you know, the lesson I took away from that is that if you can sever conversations about reforming the court's docket and reforming, of course, an institution from sort of, you who's on the court and from, you know, sort of mitigating the effects of particular decisions, maybe you actually can reach across the aisle and have a conversation that could result in productive legislation. Legislation. But, you got to sort of try it before. I mean, you've got to own it to do it. And I think part of The Understandable Problem for progressives is not wanting to give up the ghost on all the other problems with the Supreme Court, too.

0:56:29 Thomas: Yeah, That makes sense. Well, Steve Ladeck, the book is The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. One way or the other, I know we disagree on a few things. We both agree that people should read your book. So I want to thank you for coming. I appreciate the back and forth, the engagement. And yeah, thank you so much for taking the time and coming on.

0:57:35 Steve: Thanks for having me.