Shining Light on the Shadow Docket | Crooked Media
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July 24, 2023
Strict Scrutiny
Shining Light on the Shadow Docket

In This Episode

Leah, Kate, and Melissa talk to Steve Vladeck about his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. From abortion bans to immigration restrictions, COVID orders and death penalty cases, the Supreme Court has taken to changing the law in quiet.

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Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman, and we are delighted to be joined by one of our favorite repeat guests, the law professor with a Twitter account, Professor Steve Vladeck at the University of Texas School of Law. Welcome back to the show, Steve.


Steve Vladeck Thank you for having me. Yes. Karen even made a T-shirt that I’m a professor with a Twitter account.


Leah Litman I saw it. I love it. I feel.


Kate Shaw You should have worn it to our taping.


Melissa Murray Was it part of the Kacsmaryk collection? All with Ks?


Steve Vladeck Yes. It is one of the future T-shirts in the Kacsmaryk collection.


Leah Litman The other one is Barefoot and Pregnant.


Melissa Murray I survived Roe versus Wade.


Steve Vladeck I was going to wear it to teach today. But, you know, we have Fifth Circuit judges who teach us adjuncts in the law school. And so I thought maybe maybe I’d fight with them on Twitter instead.


Melissa Murray I mean, Steve, I think you should just go full goblin mode, like, wear the shirt, Just do it.


Leah Litman Leave them a complimentary shirt.


Steve Vladeck Indeed. Go to the Fifth Circuit conference wearing that t shirt.


Melissa Murray Exactly. And get a blazer. You’re fine. It’s very sunny Crockett.


Leah Litman Give them a hoodie that says one 800 boys lie. I’m sure they’d love it.


Kate Shaw And these are the challenges that teaching at a law school it sits in the Fifth Circuit entail. Wow. Steve And for listeners who did not catch that initial reference, the law professor with a Twitter account, that was actually a line in an opinion by a judge. Matthew Kacsmaryk not in the mifepristone case but another case in which he sought I think to derisively refer to Steve that way. But we actually thought it reflected a great deal of respect and admiration.


Melissa Murray All press is good press.


Kate Shaw In that spirit.


Melissa Murray All press is good press.


Steve Vladeck I just want to know if I could put that in my annual report, since he didn’t specifically cite to me right life. Does that still get an entry in, though? What did I do as a law professor this year?


Leah Litman Oh absolutely. 100%.


Melissa Murray Oh, you definitely. That’s a citation from a noted court.


Steve Vladeck Yeah, apparently a court that makes nationwide policy.


Kate Shaw That’s right. So back to the topic at hand and listeners of this podcast will remember that Steve has joined us previously, including to talk about Texas’ SB8. That’s the bounty hunter law that shut down abortion access in Texas even before the Supreme Court overruled Roe versus Wade and other matters. But the occasion for this episode is Steve’s new book, The Shadow Docket, published in May with basic books.


Leah Litman As Heidi Montag has said, congratulations to anyone who has written a book.


Steve Vladeck Thank you, guys.


Melissa Murray We’re glad to have you. Steve, congratulations on the book. Heidi Montag, Spencer, everyone joins us in congratulating you on this feat. But regular listeners of Strict Scrutiny have heard us talk about the shadow docket a lot. And it is a really important issue that’s come up many times in many different significant Supreme Court matters. So we’re actually really excited to be able to do a deep dive on this topic and also to join it to the celebration of Steve’s book, which everyone should read if they want to better understand the trajectory of the current court. So let’s start with the basics, Steve. What is the shadow docket or as some people call it, the emergency docket?


Steve Vladeck Yeah, they call it wrong. So the shadow docket is this, you know, evocative shorthand that, as you guys know, Will both from Chicago started using it in 2015 to refer basically to everything the Supreme Court does other than merits decisions. So other than the 55 to 60 side decisions and argued cases that we got at the end of each term that, you know, are big unto themselves. And, you know, Will’s insight, which I have sort of shamelessly co-opted, is that there’s a lot of important stuff that happens in the shadows, in the literal and metaphorical shadows, whether it’s grants or denials of surgery, whether it’s grants or denials of emergency relief, even things that we might think of as totally anodyne, like when a case is scheduled. You know, the timing of the affirmative action cases was actually a bit manipulated so that they’d would be heard this term as opposed to last term. The remand in the case going to the Fifth Circuit instead of the district court, like you guys know as well as anyone, there are so many examples of what seem to be procedural orders and procedural ruling from the Supreme Court that by tradition, are unsigned and unexplained and yet can often produce just as big, if not bigger, substantive effects in the real world on all of us, on law, on government actors, on everybody.


Kate Shaw And you your answer started to allude to this, but do you want to take another beat to talk about why it is important to understand this aspect of the court’s work? The shadow docket, like a book, is a major undertaking. Why was there a book here and why did you decide to write it?


Steve Vladeck Yeah, so the book actually tries to suggest that you can’t understand the court at all without understanding the shadow docket. So even if. You just thought the court was the sum of its merits decisions that is informed and influenced by the shadow docket. The justices have almost plenary control over which cases they hear. They have plenary control over which questions they decide within the cases they hear. We know that they sometimes rewrite the questions presented. That was like in Bruin in the Second Amendment case. Sometimes they answer a question other than the question presented. DOBBS And so, you know, even even the stuff that we think of traditionally as what the Supreme Court does can’t fully be appreciated without the shadow docket. But I also think and I wrote the book because I have this view that it’s not just essential to understand on the merits docket, to understand the shadow docket. It’s essential to understanding how the Supreme Court has become so powerful. We sort of understand viscerally that the Supreme Court plays this outsized role in contemporary public policy debates. The book tries to explain how that happened and how it was not inevitable, how it was not, you know, true for much of the court’s first hundred and one years, even 135 years of existence versus today. And a lot of that is not just what’s happening on the emergency docket a lot. That’s what’s happening behind the scenes in every other moment. Right. That the Supreme Court’s conducting business so that the goal of the book is like, hey, smart people who care about the Supreme Court. Like, here’s a whole different side of the court we never talk about. That’s actually just as important, if not more important in understanding not just where the court has come from, but why what the current court is doing is so problematic.


Leah Litman So your answer already alluded to this, which I interpreted as kind of like the shadow dockets or the Supreme Court’s villain origin story. But kind of before we dive into the here and now of the shadow docket, it’s important to talk about the historical development of the Supreme Court’s docket in general and the shadow docket in particular. So maybe we can do that first before we get to kind of what the shadow docket has become. So you talk about the evolution of the Supreme Court’s jurisdiction and how various changes in the court’s jurisdiction gave the court a bunch of additional authority. So would you mind sharing some of what those changes were, things that are now the case that didn’t used to be the case that gave the court additional power?


Steve Vladeck It’s not just that the changes gave the court this power. It’s that they were designed to. So, you know, the villain or at least the anti-hero in the story is William Howard Taft.


Melissa Murray Do not say a word against him. I love William Howard Taft. Just kidding.


Steve Vladeck So do I.


Melissa Murray He is looking at me. He’s the reason I won the fifth grade history bee, because the question was which president has also been a chief justice? They thought they would stop me. I was like, Bitches, I know this. And I won. So I have a soft spot for him.


Steve Vladeck So what most people know about Taft, right, is the apocryphal story that he got stuck in a bathtub. Well, I think very few people know about Taft is just how essential a role he played in reshaping what the Supreme Court does. And this actually starts while he’s president. I mean, he’s giving speeches while he’s president about making the Supreme Court more powerful, partly because didn’t really want to be president. He wanted to be chief justice. When he gets on the court in 1921. Like he sees a direct path to get on the court, more autonomy and more independence and more power. And the path is surgery. The path is sort of taking this very technical sliver of authority that Congress had given the court for the first time in 1891 as like a docket management device and actually having that expand to cover most of the court’s docket, where his idea was that if the justices could pick and choose which cases they would hear, they could actually take much more of a holistic national approach to form in constitutional rules, to articulate constitutional principles. And so it’s really a transformation of the Supreme Court from a Supreme Court of Appeals. That’s just the last court in the vertical hierarchy to a constitutional court that really is meant to exist to some degree, above and apart from the fray of ordinary judicial business. And so it’s Taft who leads the reforms through Congress. It’s the judiciary after 1925 is known colloquially as the judges bill, because it was Taft and his colleagues on the court who were most visibly and actively advocating for it. It’s Taft who lobbies Congress to actually appropriate funds. So the Supreme Court gets its own building. Right. And Taft is the one who picks the architect class, Gilbert And it’s Taft who, even once Congress implements many of these reforms, goes further and actually starts the practice of limited grants of surgery where the court only agrees to take up part of a case and only agrees to answer specific questions within the case. And the sort of the whole gist here, the whole idea was surgery equals power, because surgery means we can pick and choose what we want to do and we can avoid the stuff that we think is beneath us. And that’s really a story about the 1920s much. That’s a story about anything that happened before that.


Kate Shaw Yeah, it really is. As your answer just made clear. And the book makes it even clearer. Taft is the architect of the modern Supreme Court in so many ways in that he’s lobbying for a separate building. Before that, the justices just met in a room in the Senate that you can still visit. It’s kind of cramped. And he lobbies for and then, you know, both as president and gets money appropriated for as chief justice, this unbelievable marble palace and then goes about ensuring that the justices who inhabited will wield just this tremendous control and power from that seat. So he’s working in all of these dimensions. And the result in some ways is today’s unbelievably powerful Supreme Court.


Steve Vladeck I mean, what’s remarkable about Taft is not just how successful he was because he is he’s enormously successful, but also that a lot of what happens in 1925 is Taft outsmarted Congress. Right. So he’s very coy about some of these developments. There’s no discussion in 1925 about limited grants of surgery. There’s no discussion about sort of the jurisdictional statement. It’s going to make it easier for the court to duck even the case, and it still has to here. He keeps it up his sleeve. What’s crazy about the story is that by 1988, which is the real sort of second moment in the in the play, this is all out in the open, Right. The court has been doing limited grants of surgery for 63 years. It’s been using jurisdictional statements to avoid even mandatory appeals. And when the court goes back to Congress and says in 1925, you get us discretion over federal appeals, now we want discretion over state appeals. Congress just said, Sure. As opposed to, well, wait a second, you snookered us last time. You’re not going to fool us again. I mean, Chief Justice Rehnquist says to Congress in 1988, if you give us circularity jurisdiction over state courts, we will grant more cert petitions from state courts. That was never true. Like, there wasn’t a single year after 88 or the court did that. So in 1925, it’s a transfer of power that operates at least somewhat behind closed doors. Right. By 1988, it’s Congress just sort of giving in and giving up, I think, to a large degree.


Leah Litman So I just want to spell out and define two quick things that we’ve been talking about in the conversation, just for ease of listening. One is surgery jurisdiction versus mandatory jurisdiction. And certiorari jurisdiction just means it is discretionary in the sense that, you know, the Supreme Court will pick and choose whether to hear a case at all and the parts of the case that it will hear, whereas mandatory jurisdiction are ostensibly cases that Congress has required the Supreme Court to review. But as Stephen referenced, two jurisdictional statements indicates, even in those mandatory jurisdiction cases where Congress has directed the court, you actually need to decide this. The Supreme Court has said, Well, we can do that by not issuing an opinion at all and just saying, you know, summarily affirmed or something like that. And so they have basically accumulated for themselves the power to set their own agenda through all of those different techniques.


Steve Vladeck And just just to sort of put one more point on that, I mean, it’s remarkable not just because of how it transforms the court’s docket. It’s remarkable because it also should transform how we talk about the court’s docket. Right. It’s one thing when the Supreme Court is hearing 300 cases a year that it has no control over where the data set is being formed by the courts of appeals. Right. Or by some other actor. When we talk about the court’s docket, when the media reports on like the aggregate statistics from the term, you never hear about how the denominator was carefully curated by the justices themselves in ways that actually hide issues in the lower courts, in ways that obfuscate just how, you know, the court only divided. The court only the court was unanimous in 22% of the cases. That’s a stunningly low statistic for cases they all want to hear. I mean, so I guess it’s just like it’s a good example before we get to the emergency docket and the sort of recent events of just how skewed much public discourse about the Supreme Court is, because we don’t talk about how much power the court exercises behind the scenes and how much discretion it exercises. We know so little about the cert process. My favorite example of this, right, the rule of four, the idea that it takes four justices to vote to grant surgery is not written down anywhere. It’s universally accepted by everybody. If you if a law review editor asked you for a source for the rule of four, there isn’t one. That’s just a microcosm of the broader problem.




Melissa Murray  I love all of the sort of modern day repercussions of these moves that Taft made to embolden the court. But I also want to go back and talk some more about him because he’s a really fascinating character, as you say, get stuck in a bathtub. That by itself is notable. As Kate says, he moves the Supreme Court out of the basement of Congress where it was basically functioning as a jurisprudential, Kato Kaelin. He actually goes he actually goes to great lengths to become the chief justice. Like, this is his lifelong ambition, even when he is president of the United States. What he really wants is like, you know, I know I’m acting, but I what I really want is to direct. He’s like, I know I’m president. What I really want is to be the chief justice. And he finds a way to do that. And it’s absolutely kind of amazing. And I’m just let’s set this out there. I think he is the Camilla Parker Bowles of the Supreme Court. He played the longest game ever. And tell us the story, because I think it’s amazing.


Steve Vladeck About a year and a half into task presidency, Chief Justice Melville Fuller dies. And so that creates a vacancy in the Senate seat in the Supreme Court. The thing Taft has aspired to his whole life. He even turns down, by some accounts, as many as two or three invitations by Teddy Roosevelt to an associate justice seat right around the administration. So Taft now has a problem Right here he is. He’s 53. He’s president of the United States. But he really wants to be chief justice, and he has to appoint a new chief justice. So he comes up with the craziest solution. He looks at the current court and he picks one of the oldest and sit in justices, Edward Douglas White, who’s also a Republican. So he’s on the team and he elevates white to chief justice, which, by the way, is breaking in a huge way from tradition to that point in American history, there had been no chief justice who had been elevated from the existing rank of associate of justice. Only John Rutledge, who had left and come back, had served in both in both capacities. So Taft breaks with tradition because White is 65. And the theory, I guess Taft theory is like, you know, I’ve got 12 years on him. And the craziest part of all of this is that it worked. So White tells people that he’s got to resign the next time there’s a Republican president in favor of Taft. And White makes it through all eight years of Woodrow Wilson’s administration. And then Harding was elected. White dies in May of 1921. And the coast is clear for for Billy Taft to get his dream.


Leah Litman I have a question. Do we have any evidence that Taft didn’t murder White? I mean, this is just it’s lining up very well. Yeah.


Steve Vladeck No, I mean.


Kate Shaw This is how rumors get started.


Leah Litman Marshall of the Supreme Court will conduct an investigation. She’ll call up Taft and be like, Did you do it? He’ll say no. And okay, I got it.


Steve Vladeck But it’s remarkable in any number of respects. It’s a remarkable amount of foresight. It’s remarkable sort of breaking Supreme Court conventions for shamelessly personal reasons. But also it’s remarkable because somehow the mafia pulled it off.


Kate Shaw Amazing.


Melissa Murray I love this.


Kate Shaw So we’re not going to yet come to the present. But let’s move forward a bit in time from the sort of tough story that we were just you were just telling to this anecdote that opens the book about Justice Douglass And it’s an important anecdote, and it involves Justice Douglass granting a very important application only to see it later overturned, you know, effectively by the full court at Justice Marshall’s behest. So maybe I’ll just leave that invitation there. Can you just describe that incident and explain its impact on the court’s practices?


Steve Vladeck Yeah, I mean, so this is the this is the Cambodia bombing dispute in 1973. I didn’t just start the book with this story. Actually, the proposal that that was the book before it was a book starts with the story because I think that there’s so much richness in it about the shadow docket. And the first thing to say is this is actually a really good example of how the shadow docket in the emergency context used to operate, where everything was handled in so-called in chambers by the relevant circuit justices, by the individual justices who were assigned to handle procedural matters coming out of a particular court of appeals. So in the summer of 1973, there’s a whole sort of controversy over Nixon’s continued bombing of Cambodia, the Ho Chi Minh Trail, etc. even after American troops have finally been withdrawn from Vietnam, which happened in April of 73. This eventually provokes Congress to pass a funding cutoff, where Congress says after August 15th, 1973, no more funds can be used to. Bomb Cambodia, basically. And Congresswoman Elizabeth Holtzman and a bunch of military officers sue. Even before the August 15 cutoff to say. But it’s also not legal now. Like we’re cutting off the funding until August 15th. But like, we don’t think it’s authorized today. And they’ve got a Brooklyn federal judge, Judge Orin Judd, too, enjoying the bombing of Cambodia the first time in American history that a federal judge enjoined an ongoing military operation. There hasn’t been a second, but judge stays his ruling. He freezes it for a couple days in case DOJ wants to appeal and take it up to the Second Circuit. DOJ does that. The Second Circuit issues a stay. It freezes judge ruling before it goes into effect, at which point Holtzman goes to Marshall In his capacity as circuit justice for the Second Circuit, Marshall holds oral argument in his chambers. He writes an opinion. I mean, this is actually how it used to go in the emergency context, and he denies the application to vacate the stay, and I think a fairly remarkable act of institutional integrity. He says, You know, I am sympathetic to the applicants. I have real concerns with the bombing. But my job as a circuit justice is to rule how I think the full court would, if it were here and I think the full court would stay this Atwood would not vacate the stay. I think the full court would leave the injunction on hold. Therefore, I’m bound to do the same. It would have ended there. But the ACLU lawyers who are representing Holtzman and the soldiers decide to try Justice Douglas. So they hop on a plane, they fly across the country. They tracked down Douglas in his cottage up in the woods in Yakima or outside of Yakima in Goose Prairie. DOUGLAS At this point, you know, there’s no phone in the cottage, so you literally have to drive up there and knock on the door. He’s with his I think this is now his fourth wife.


Melissa Murray It’s his fourth wife, Yes. The youngest, of all of the Mrs. Douglases.


Steve Vladeck Who I think was a 3 L when they met. If I remember the history here. So there’s some awkwardness on that front.


Melissa Murray Nah. Sounds totally normal.


Steve Vladeck Totally normal. Well, so does, you know, knocking on the cottage of a Supreme Court justice and, you know, first thing in the morning and saying, Hi, I’d like you to stop an ongoing military operation in Cambodia. So, Douglas, he sort of tells the lawyer, come back in a couple of hours. There’s a prior episode where when the lawyer came back, the Judge Douglas had nailed an order denying relief to the tree outside his house. Not very environmental for Mr. Environment, Justice Douglas, but this time around, Right? Douglas says, All right, you’ve convinced me to hold a hearing. And so he commandeers. The nearest federal courthouse, which is in Yakima, about 40 miles away. He holds a hearing in the next day. And then after the hearing, while he’s literally driving back up to the cottage, he stops at a series of roadside payphones to relay back to his clerks in Washington the details of an order basically vacating the Second Circuit, stay put in the injunction back into effect and cut a marshal, in fact, out of the loop. That order comes down at 930 in the morning on Saturday. 6 hours later, Marshall responds by granting the government’s application to Marshall to stay the injunction himself. What Douglas had done was the Douglas had vacated the Second Circuit stay. Now Marshall imposes his own stay, and Marshall stays the injunction. He sort of repeats the reasoning that the Second Circuit had use. But then he says, and this is the remarkable foreshadowing. I’ve been in touch with the other seven members of the court and they all agree, basically saying like, you know, Hey, Douglas, stop. Douglas files a dissent from Marshall’s order, which, by the way, I’m not sure how one justice can dissent from another justices in chambers opinion, but this is Douglas. He did what he wanted. And Douglas’s dissent, I think, actually really is pressured in identifying some of the problems, not with what Marshall had done, but with Marshall basically saying, I have a quorum because I talk to the other seven justices by telephone and he complains about the lack of an opportunity for the justices to discuss the issue, the extent to which there’s no ability to form a consensus about the opinion of the court, the extent to which there wasn’t an opportunity to hear from other interested parties. His second opinion in Holtzman or Fletcher, is almost like a preview of coming attractions. He basically sketched out all the reasons why it’s not ideal for the court to operate in the shadows. And yet what happens after that is the court actually does more of it. The court sort of gravitates toward doing more emergency applications on bonk, that is to say, before the full court, without explanation, without argument, without meaningful opinions to be heard. So what Douglas is complaining about in August of 1973 absolutely quickly becomes the norm for the court’s behavior. Once we have the reinstitution of the death penalty in 1976.


Melissa Murray That seems like a good place to kind of pick up since later chapters focus on how the court’s shadow docket has changed over time, and you locate a lot of modern day practices regarding the shadow docket in the evolution of capital punishment. So can you give us sort of a synopsis of how that happens over time and how the death docket creates the shadow docket that we know?


Steve Vladeck Sure. I mean, all three of you know this from clerking. There is a long period of time where the Supreme Court, the shadow docket at the court was the death docket and where the experience with emergency applications was almost uniformly confined to emergency applications in capital cases. The death penalty is sort of provoked, by the way, the Supreme Court reinstituted capital punishment in 1976. So the court in the July 2nd case is Greg versus Georgia and its companions brings back the death penalty, but imposes a whole bunch of constitutional constraints on it. Substantive constraints on the capital murder statutes and procedural constraints on how capital sentences can be imposed on the rules for lawyers on every single phase of the case. Those constraints can be litigated, and the states start setting very aggressive execution dates where the only way to litigate those constraints is through emergency applications, is through applications for stays of execution. So much so. So just as a data point in the October 1960 term, the court hears a total of four emergency applications in capital cases. In 1983, it’s 83. And the reaction to those floodgates is basically these sort of procedural shifts that we’re seeing today. One, the court starts doing all of this stuff en banc. There are no more in chambers arguments after 1980. There are very few in chambers, opinions two.


Leah Litman And just two just to explain, like en banc, that means like the full court is making the decision rather in chambers by one justice versus another. So just yeah.


Steve Vladeck That’s right. Yeah. So one of the other things the court starts doing right is before 1980, when the court would rise for its summer recess, it would formally adjourn so that the full court couldn’t even act. Over the summer start of the 1980, the court very, very quietly shifts its rules so that now it’s actually a continuous term where the full court is always in session so that the full court can rule, even when the justices are scattered to hell and gone. And so we see sort of overnight the rise of orders by the full court that are unsigned, that are unexplained, and that have these really significant effects because they’re either stay in executions or they’re unstable and executions. We see the rise of stealth dissents because they’re, you know, borrowing from the tertiary context, the justices assume that they don’t have to record a dissent publicly, even when we know whether from archival records or from anecdotal reporting that there were dissents behind the scenes. And this all guys becomes hyper normalized in the death context, where by the 1990s, by the 2000s, you know, no one’s really saying, hey, this is not how we should be processing emergency applications. At the same time, everyone assumes that it’s all part of this death is different mentality, that it’s a unique series of procedural accommodations the court has arrived at to deal with a unique problem so that, you know, there’s sort of no fear that spreading over into other contexts and say what you will about capital cases. I mean, obviously the consequences are enormously important to the prisoner, to the, you know, the victim’s family and to the state. But the broader legal significance of whether a particular execution is or is not state is typically fairly modest versus what starts to happen in the 20 years where the same pathologies, the sort of the full court unsigned, unexplained light process rulings start to seep their way into areas that have far broader consequences. The Clean Power Plan, which the full court blocks in early 2016, and by a 5 to 4 vote with no opinion. It’s behavior that had been normalized on the death docket for the better part of 35 years. But that’s slowly start seeping over into disputes with more nationwide policy and factual implications.


Kate Shaw Can you talk to us a little bit about the evolution of the so-called courtesy fifth vote in death cases and how more broadly that sort of evolution affected the shadow docket?


Steve Vladeck Yeah. So, I mean, one of the weird phenomena that happens as the full court is faced with so many of these applications is that you have cases where there might actually be and there often were four votes necessary to take up a death row inmates clear whether it’s a claim about his counsel or a challenge to the method of execution or something about the prosecutors statements that the closing argument, the trial. But maybe there wasn’t a fifth vote for a stay because the voting thresholds, which again, are going down, are different. And so in the mid 1980s, in response to a couple of pretty visible. Cases where the court grants cert but denies a stay so that the prisoner is executed while the case is on the docket, which moots the case. Justice Powell, who’s very late in his career at this point, who’s very who’s who’s aging, who’s, you know, very, very ill, inaugurates this practice of what he calls the courtesy fif, where he’s going to provide a fifth vote for a stay in any capital case in which four of his colleagues have voted for certiorari to avoid the unseemly appearance that the court is going to let someone execute someone whose case is already on their docket. And from Powells perspective, that’s not just a gentlemen leave them to do as the collegial Virginian gentleman that he is. It’s actually honoring the rule of four. Right. It’s actually living up to Taft’s promise that four votes would be enough to effectively get a case to the docket. What’s telling about that is that there is some maintenance of the courtesy of practice, although it’s often honored in the breach. Throughout the 1980s, in 2000, John Roberts at his confirmation hearing in 2005, sort of commits to the courtesy of practice. But it seems to be sort of. Well, it was already, I think, waning even when there were still four Democratic appointees on the court who would often vote for days and for cert in capital cases now that there aren’t even four. You know, what we’ve seen, especially across the October 2022 term, is just denials of status, of execution without even dissents. We’re at a point now where the courtesy Fifth, if it was still alive, is sort of muted by the fact that there isn’t even a fourth.




Leah Litman So I think some of the additional attention that the shadow docket received was precipitated by something that happened on the death docket, and that’s the court’s treatment of an issue that was initially raised in the case, Don versus Ray. So could you remind listeners, like what that issue was and why the court’s treatment of that issue in that case and some others raised some early concerns about the shadow docket?


Steve Vladeck Yeah, I mean, so this is February 2019 and Dominic Ray is an Alabama was an Alabama death row inmate who wanted a muslim imam in the execution chamber with him to basically pray with him as he was as the sentence was being administered. There are pretty good arguments that the Alabama procedures I mean, they’re very good arguments that the Alabama procedures discriminated against him on the basis of his religious beliefs, because at the time, the way the structure was set up, if you want a Christian chaplain in the execution chamber, he could have had one, but not the imam. And so he basically seeks emergency relief not to actually preclude his execution, but merely to postpone it. Right. For long enough for Alabama to get its act together. And what’s remarkable about the case is not just that the court denied the application five, two, four, but that a couple about six weeks later, there’s a Buddhist prisoner in Texas who raises a remarkably similar claim. And this time around, the court grants it. And, you know, Justice Kavanaugh writes this somewhat sort of, how do I say, wishy washy concurrence in the Buddhist case, saying this time around, we have fewer reasons to be worried about the prisoner waiting until the last minute to bring those claims. But that really didn’t seem to explain the cases. Justice Kagan’s dissent in the Alabama case, Dunn versus Ray, had talked about how Dominic Ray had tried to bring his claims in a timely manner and how the the Alabama prison procedures were actually getting in the way of the ability to do that. It looked right. I mean, it looked to all outward appearances like the court had ruled for the brothers and against the Muslim. And I think the court got a lot of egg on its face for that, not just from the folks who might think of some of the usual suspects when it comes to criticizing the court, including perhaps the four of us, but even some conservatives. So I think that started some of the public attention about the sort of the the court’s seemingly inconsistent behavior on the shadow docket. I like to think that, you know, the first piece I wrote about it, which was published by the Harvard Law Review in November 2019, which is about how the Trump administration, I think, had used an abusive shadow docket, also helped to bring at least some attention to it. So it starts entering the consciousness, I think, right around then, right, Whether because of the death cases, the Trump cases, or some combination of both of them.


Kate Shaw Yeah. And I mean, actually one point of intersection between those two were the executions of federal prisoners very late in the Trump administration. And that, I don’t think, actually got as much public attention and scrutiny as it warranted. But I do think it still was an incredibly important moment in sort of the recent shadow docket. So can you talk a little bit about those kind of episodes in those last months of the Trump administration?


Steve Vladeck Yeah, I mean, it’s a remarkable story. And my colleague Lee covers tells it very, very well in a piece called the Trump Executions, which is in the Texas Law Review, the federal government later, the Trump administration announces that it wants to reinstitute the federal death penalty. And between July 2020 and January 2021, the government successfully executes 13 federal prisoners. This is after it had been 17 years without a federal execution. And actually, if you go back 60 years from 1962, 2020, there only been three federal executions. I mean, the federal death penalty had really become almost entirely moribund. And, you know, because it’s the federal death penalty, there’s a whole slew of unique statutory and constitutional questions that one hadn’t been addressed in a long time, and two are not properly before the state courts, where the federal courts are the only courts to handle these questions. And what’s remarkable is that the the sort of the government’s very hasty efforts to get this policy off the ground, to identify the right kind of drugs to use in the execution protocol, it was so haphazard and slapdash so that the relevant federal judges who are spread out there are a bunch of judges in D.C. and in Maryland and in Indiana, which is where the federal execution chamber is, who actually frees almost all of these executions. And in a series of orders, the Supreme Court unfreezing them. So of the 13 executions that the government carries out in the last seven months, the Trump administration, all 13 are only possible because of orders of the Supreme Court. Seven of the 13 were actually frozen by lower courts and then unfrozen by the Supreme Court. And in all of those cases, the Supreme Court writes a single opinion in a case called Barr versus Lee, where the court says we are allowing this execution to go forward, not because there’s no Eighth Amendment claim, but because the experts disagree. About the potential side effects of using this particular drug. And without some clear entitlement to relief, the prisoner can’t make out his entitlement to a stay. So it’s an incredibly like nothing matters. We don’t have to resolve your claims. We have a presumption against any 11th hour litigation of method execution challenges even when it’s not your fault prisoner that there are 11th hour claims. And that carries all the way through to the last case, which I think is actually the worst of them. So the very last federal prisoner of the Trump administration executes a guy named Dustin Higgs. Higgs was convicted of capital murder by a federal district court in Maryland at a time when Maryland still had the death penalty. And so under federal law at the time, that meant that Maryland’s procedures for capital punishment would be the procedures that were followed. Maryland, in between the time his is convicted and 2020, had abolished the death penalty. And so Higgs, his case, raised this novel incredibly small but important in his case. Question about what the federal government supposed to do when the state of conviction abolished the death penalty between the conviction and the sentence, the district court says, I have no idea. This seems like a mess, but I don’t think I can just decree that we follow Indiana’s procedures. There’s the government appeals to the Fourth Circuit. The Fourth Circuit says, we’re going to hear your appeal super fast. Right? That expedited oral argument they’ve set, they’ve set a hearing and the hearing is scheduled for January 22nd, 2021. That’s not enough for the Trump administration. The Trump ministration goes to the Supreme Court and asks them to lift the Fourth Circuit stay and to vacate the Fourth Circuit. The district court’s decision on the merits by grant in so-called cert before judgment, by basically wiping out the district court decision, saying I can’t name Indiana as the state of execution and doing it themselves. And on January 15th, so a week before the Fourth Circuit supposed to hold the oral argument, the Supreme Court obliges it, vacates the stay and it grant cert before judgment and it summarily reverses the district court and orders the district court to designate Indiana as the state of execution. What’s crazy about all of this is the Fourth Circuit was going to hear argument a week later, right. Historically, the kinds of cases where the court would grant cert before judgment. We’re like national emergencies. The Youngstown steel seizure case. Right. The Watergate tapes case, the Iranian hostage crisis case.


Leah Litman And now Republicans not getting what they want.


Steve Vladeck Well, and right here’s and here’s right here. We’re doing this so you can execute one guy. Yeah. And the timing is so just horrifyingly probative here because what’s clear is that they wanted to make it possible for Trump to execute this guy because five days later would be inauguration. Biden would come to office and Biden might commute his sentence. It’s an example, I think, of just how much power the court has now arrogated to itself in this context, where it’s using procedural devices that have never been used in this way, not to change the law necessarily, but just to do what they want to do and to allow, you know, the relevant stakeholders to do what they want to do without any kind of formal legal imprimatur.


Melissa Murray One of the things that you note in the book, Steve, is that the use of the shadow docket and the proliferation of the use of the shadow docket during the Trump administration seems associated with an ideological lurch to the right on the court. But what’s actually interesting about the use of the shadow docket is that it actually makes it very easy to mask some of those ideological shifts, because when people write about the court or do statistics on the court, they tend to focus almost exclusively on the merits docket. And, you know, we’ve talked about some of the completely bonkers takes on the court, like the three, three, three court. But that kind of understanding of the court’s ideological tilt is only possible if you’re focused on the merits docket. If you include the shadow docket, which many of these court watchers don’t include, a much more starkly ideological portrait begins to emerge. And so can you say a little bit about how more attention to the shadow docket can give us a clearer sense and more transparency about what this court is?


Steve Vladeck Sure. I mean, so just let’s take one term, I think as a good as a data point. So the October 20, 19 to 2019 2020, at the end of that term, there were all of these stories about how few cases there were where the court divided 5 to 4 and how even some of the five to fours were, you know, not the usual suspects were sort of some strange bedfellows. There were 53 decisions on the merits docket that term. Only seven split the court, 5 to 4. Not all seven of those were the usual alignments. And so, look, maybe this court is a little more complicated than people think. If you look at the shadow docket, right during the same term, there are at least 11 decisions that were 5 to 4, and that’s without stealth votes. This is where they’re actually four public dissents. All 11 of them are ideological, right? Nine of them are the conservatives versus the liberals. Who are. ROBERTS And the liberals versus the conservatives. Right. At a time when I think we all agree Roberts was the median vote, and that’s one more than we saw in the mayors docket, too. More homogenous than the merits docket. And three, most of those 11 rulings come with no opinion. And so there’s no need if you’re a justice voting one way or the other to explain why this is or isn’t consistent with prior cases. Right. There’s no need to actually rationalize what you’re doing. I think what happened during the Trump administration is that the solicitor general discovered and the justices acquiesced in this idea that you can use emergency orders to make policy without making law and to sort of basically allow policies like the second iteration of the travel ban or the border wall or the third country asylum rule to be in effect for years on end, even though no court ever upholds them. And indeed, multiple lower courts say they’re unlawful. And you know, what was so I think galling about that is that if you think there are plenty of people out in the world defending the court, saying, well, maybe they thought this about the Ninth Circuit, or maybe they thought that about the district court, that’s fine. But like, if we’re only speculate in, then nothing the court thinks actually creates precedents and none of the court’s justifications actually can be used. The next time around, when it’s a different administration. So just to sort of flip this over. Right. The Biden administration keeps having its immigration policies subject to nationwide injunctions in especially Texas federal district courts. It keeps go to the Supreme Court, first days of those nationwide injunctions making the same procedural arguments about why the government should be allowed to carry out its immigration policies even while the cases go through the courts. And it loses. Right. And the court keeps denying emergency relief, even when on the merits the Biden ultimately wins, like in the Remain in Mexico case, where the court originally denies the stay but then rules 5 to 4 for the administration on the merits. So the problem here are sort of twofold, right? It’s the absence of explanation by itself, but it’s also the behavior that the absence of explanation therefore invites, if not affirmatively facilitates.


Kate Shaw Right. So you’re talking here about the obviously ideological valence to the way the court this current court uses the shadow docket much of the time. And I want to just sort of turn a little bit from ideology. Obviously, we’re talking about ideology and politics, maybe to turn to partizan politics in particular. Right. Because while much of the book is about, you know, some of it is about ideological valence, much is about kind of in broader terms, just the way the use of the shadow docket increases the court’s power, decreases its transparency and accountability and maybe legitimacy. But in chapter six, you turn really squarely to partizan politics, right? And so that’s a chapter about the Purcell principle and the court’s intervention in a lot of election cases. And the subtitle lays its cards on the table. Right? The subtitle, which I will read, is how the current court uses the shadow docket to help Republicans. So how does this court, in election cases and maybe more broadly use the shadow docket in ways that both undermine democracy, which I think is it clearly does, but also specifically help the Republican Party and Republican candidates.


Steve Vladeck Yeah, I get a lot of grief for the subtitle of the book and for the subtitle of chapter six from our.


Kate Shaw I was, to be clear, I was not asking it in an ad with any shade whatsoever. I think it’s real important and I think it’s right.


Steve Vladeck I would and I think it’s right. I was not there. No, but but it was very deliberate. I mean, I think that’s that’s the point, is that I think it’s chapter six that really makes the affirmative case that this is not just happenstance and that this is not negligence, but that actually at least some of the court’s behavior can only be explained by reference to who’s winning and who’s losing. And so the Purcell principle, such as it is, is this itself shadow docket creation of Justice Kennedy? Well, we think it was Justice Kennedy, this unsigned, this unsigned ruling from the Supreme Court in 2006 that I’m just go going on a lemon saying which Justice Kennedy where the court basically says in general federal court should refrain from any injunction that as an election approaches, has a substantial risk of creating voter confusion. There’s a lot to be said in the abstract for what that principle is trying to accomplish. I mean, I think I think the notion that like court should avoid confusing voters is good and is healthy. But the problem is it’s totally under theorized and it’s under theories in some pretty important ways. Right. So what if the court is actually on confusing voters? What if what actually has happened is a late change by the relevant election officials that the court is blocking so that the prior well understood rule is what goes into effect. And so, I mean, you know, every election law scholar, I mean, Rick Hasen, Wilfred Codrington for Anita Tolson, I mean, everyone who does this has written about what’s wrong with Purcell, but it’s how the court applies Purcell in 2020 that I think really starts. They make this look very, very ugly. So there are a number of cases in 2020 where the court seemingly rely on Purcell for uses lower court injunctions that in response to COVID had tried to make it easier for folks to vote whether drive thru poll voting or absentee and mail in ballots dispensing with the signature and witness requirements, for example, in South Carolina, and in case after case after case, the court freezes those. Then there’s Florida. And in Florida, the valence is were flipped. So there was. So there’s a constitutional amendment in Florida, a state constitutional amendment to basically re enfranchise felons. And the sort of the Florida legislature and the governor worked very hard to sort of frustrate the amendment by imposing all kinds of additional obstacles to actually taking advantage of the amendment. The district court actually, after a lengthy trial, issued a permanent injunction against the legislative and executive efforts to frustrate what’s called Amendment four. And so there’s an injunction that goes into effect pretty far before the election. I mean, this is well in advance. This is not on the eve of the election that would have had the effect of re enfranchise and potentially over a million Florida voters and the 11th Circuit doing exactly what the Ninth Circuit had done in Purcell and exactly what the Supreme Court says you’re not supposed to do stays the injunction with no explanation basically puts back into effect these complicated messy procedural requirements for felons who want to clear their record and vote. That should have been a textbook case for the Supreme Court vacating the stay inside in Purcell and just a criminal one sentence order. Right. The 11th Circuit issued a stay that has the effect of raising the risk of voter confusion. See Purcell where we literally did this to the ninth Circuit and instead the court denies relief over a very angry and I think very correct dissent from Justice Sotomayor. As I don’t know how you look at all these cases and say that there’s a principle here other than the Democrats lose and the Republicans win.


Leah Litman So it sounds like this shadow docket thing is kind of a problem, I guess. Can we can we ask you to talk about some possible fixes you’d like to see to this issue?


Steve Vladeck Yeah, I mean, what’s funny is like I mean, we’ve been doing this for for, you know, as long as we’re into this and we’re still sort even to the worse problems, which is also the court now making law the shadow docket. So how do we fix this? I mean, the first thing to say is I wrote the book, at least first and foremost, just just to educate people. And so if you’re listening to this podcast, like we’ve already succeeded, I mean, the I think there’s much more public understanding of and familiarity with maybe not every little jot and tittle, but at least the general idea of what the shadow docket is than was true as recently as four years ago. And some of that’s because of what you guys have done. I think some of that is because of the very loud public backlash to the SBA ruling in September of 2021. So, you know, step one is just like, hey, what is this thing? Because I think actually this is an example of the more people understand it, the more they understand what’s wrong with it. Step two, I think, is, you know, use in that awareness and that public understanding to impel the justices to actually reform their behavior. And that may sound like a fool’s errand, but guys, I think we’ve already seen it. Well, over six months into the term, the court had granted only two emergency applications, the entire term compared to a 20 or 25. Right. In recent terms. There’s this remarkable opinion by Justice Barrett in an October 2021 case called Doe’s versus Mills about vaccination mandates for Maine health care workers, where she says, you know, just because you make out the grounds for emergency relief doesn’t mean we’re going to grant it. And we’re actually we’ve seen since that moment fewer applications where the conservatives seem to be granting for relief, more applications where Thomas, Alito and Gorsuch are dissenting from denials of relief. We’ve seen some procedural reforms, the court kick in some of these cases from the shadow docket to the merits cases like the student loan cases like the US versus Texas. And so I actually think it’s working in the sense that, like the court has already moderated some of its behavior. Not all of it. I mean, I think there’s still a long way to go. And that leads to the last point, which is that the real disease here is not the shadow docket. Right. The real disease here. And the reason why the book starts with Taft and the history of surgery is congressional abdication is sort of the political branches taking their hands off the court as an institution. And I think the story that we ought to be comfortable telling is that for its first 200 years, the court was part of this robust, healthy, not always or even often perfect interpretive dialog with Congress, with the executive branch, about the proper role of the court in our system. And that meant jurisdictional reforms. That meant, you know, Chief Justice Burger’s year end reports, which were meant to be like a State of the Union. In Wishlist for Congress, a practice Chief Justice Roberts has sort of quietly abandoned, even as he continues to issue these now sort of totally empty pablum, year end reports and two new guys. That’s the real story here, is that the court has seized all this power and no one has done anything to take it back. And that’s a failure to me of, frankly, some of us as law professors who haven’t taught this as well as I think it should be taught, I think that’s a failure of, you know, the Biden Supreme Court Reform Commission, which could have made a much bigger deal out of this stuff, and instead got sort of twisted into a pretzel over expansion and term limits. And that’s sort of the bright light stuff. And so if the book starts a dialog about restoring a healthy inner branch balance when it comes to the court, I think that would be a remarkable achievement, even if right every now and then the court still acts badly on the shadow docket, even if it does things that it doesn’t explain adequately, even if it, you know, doesn’t actually follow the presence supposed to follow. In this context, I still think more awareness, more dialog and more inner branch push back is where this really has to go.


Melissa Murray The book is called The Shadow Docket How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And it is available in all of the customary formats at all of your favorite booksellers, including our favorite But it’s also an audiobook, correct?


Steve Vladeck It is an audio book, although I’m sad to say that I am not the audio narrator.


Melissa Murray Okay, I want to know more about that. How come you’re not good enough to narrate your own book? What did they say to you? Did people say you have too much vocal fry? Steve Because that’s something I sometimes hear. Do you just want to know it and then hear that too? Like, maybe you should smile more while you’re reading the book.


Steve Vladeck I mean, Karen always tells me I have a face for radio.


Leah Litman Karen is Steve’s wife.


Melissa Murray Apparently not. Apparently not


Steve Vladeck So. So I actually I asked if I could narrate the audiobook and they basically made me audition for it, and I auditioned for it and lost.


Melissa Murray Okay. Only you Steve. Only you.


Kate Shaw We’ll register an objection to that. Maybe we could do like a bootleg version of the book where you just read it on our air and people can, you know, again, undermine your book sales, I suppose Steve.


Steve Vladeck So a couple of possibilities. One, Karen could read the book.


Kate Shaw This a great idea.


Steve Vladeck Which, you know, and she could editorialize as she goes as she is, want to do.


Kate Shaw So excellent.


Steve Vladeck That that would at least require Karen to read the book, which would be a development. You know, I think we could we could try to get the justices to read the book.


Melissa Murray Oh, that would be amazing. Like, just like each of them take a chapter and read it out loud. Would we have to pay them or could we just, like, give them private jet drive.


Leah Litman Harlan Crow will finance it.


Melissa Murray Yes, Like. Like a documentary.


Leah Litman Exactly.


Melissa Murray Created equal.


Steve Vladeck All of which is to say that that the book is available in multiple formats and the fantastically talented voice actor Jonathan Todd Ross is the narrator of the audio book. So you’re better off in his hands than mine. Although I make no, I do not vouch for all his pronunciations.


Melissa Murray You know what Steve? I don’t think I


Kate Shaw There’s a lot of Latin in that book.


Melissa Murray There’s a lot of Latin. And I don’t know if I like him. I don’t like the sound of this. I think I’m just going to read the book in hard copy.


Steve Vladeck Melissa, I should have asked you to audition, too.


Melissa Murray I would have totally done it, but I’m just. I just want to be on record. I’m not here for the Steve Vladeck erasure. I’m not.


Steve Vladeck That’s a separate episode.


Melissa Murray The book is called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And if you are a court watcher, this is necessary, urgent reading. We urge you to get over to your local bookstore. Maybe to check it out in whatever format you would like.


Kate Shaw Steve, thank you so much for taking the time to be with us today. It was great to have you and the book is fantastic.


Steve Vladeck Thank you guys. It’s a real treat.


Kate Shaw Before we let you go, just one quick note. You’re going to want to check your feeds tomorrow for a rare, Strict Scrutiny midweek bonus episode. This is our second annual crossover episode with Chris Hayes, host of the podcast Why Is This Happening? And one of our very favorite Strict Scrutiny spouses. We sat down with Chris to unpack the term that just ended with a little bit of critical distance from it. So do not miss that conversation wherever you get your podcasts.


Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizuho, Michael Martinez and Ari Schwartz. And Digital support from Amelia Montooth. MSNBC’s Chris Hayes, better known to our listeners as Mr. Kate Shaw, Kate Shaw’s beloved husband is joined by uniquely qualified guests to dig deeper into today’s most pressing issues like climate change, the threat to women’s reproductive rights, the explosion of artificial intelligence and near and dear to the hearts of Strict Scrutiny. Listeners. The latest decisions and dynamics of the Supreme Court. So search for Why Is This Happening? wherever you’re listening now and follow new episodes every Tuesday.