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0:32

["The U.S.

0:45

Department of Transportation and Security"] Hello and welcome

0:47

to Serious Ink Queries Only. This is episode 447, and boy, do I

0:49

have a good one and

0:52

a fascinating one for you today.

0:54

So about a year ago, I

0:57

spoke to Steve Vladek about his

0:59

book that was coming out

1:01

called The Shadow Docket. Maybe you're familiar. I'm

1:03

publishing it now. It's a really good conversation.

1:05

I wish it could have come out earlier.

1:07

I'm publishing it now, and I want to

1:09

use it as a plug because Steve Vladek

1:11

is coming on opening arguments next week. And

1:13

it'll be kind of a sequel to this

1:15

conversation. It'll be interesting to see what has

1:17

changed in a year. But this

1:20

was a really good one. It was about

1:22

The Shadow Docket. Of course, his book that

1:24

she should go out and read, if you

1:26

haven't. But it's about court legitimacy and the

1:28

lines and the boundaries of that, where

1:30

he thinks it is, where I think

1:32

it is, and what can be done. And

1:35

I am really excited to finally

1:38

get to put this out there. So thank

1:40

you so much for listening. And if you'd

1:42

like to skip this little break, go to

1:44

patreon.com/series pod, support the show. There's a bonus

1:47

coming out imminently. A

1:49

little seriously awful hypotheticals involving a

1:51

man and a bear. If

1:55

you know, you know. Lydia

1:57

and I had a conversation on that. lot

2:00

of fun. All right, after this little break

2:02

that you don't have to hear if you're

2:04

on patreon.com/serious pod, it's Steve Ladek

2:06

about his book The Shadow Docket. Steve,

2:08

how are you doing today? I'm doing well, Thomas.

2:10

How are you? Doing great. I'm excited to,

2:13

well, I don't know. Is it exciting to talk

2:15

anything Supreme Court or is it just varying levels

2:17

of depression and anger? I don't know. What do

2:19

you think? You're the expert. Porque no lo sos,

2:21

right? Why can't we have a little bit of

2:23

both? Yeah, that's right.

2:25

We'll be excited about it. Yeah, excited to

2:27

talk about your new book coming out, The

2:29

Shadow Docket. My first question, I guess, right

2:31

off the bat is, of all the things

2:33

wrong with the Supreme Court, how did you

2:35

land on writing a book about this particular

2:37

one? Well, I

2:40

actually think, and the book tries to persuade

2:42

readers, that the Shadow

2:44

Docket itself is actually emblematic of much

2:46

bigger, broader institutional problems with the Supreme

2:49

Court and that it's actually pretty hard

2:51

to understand both how

2:53

the Supreme Court came to occupy

2:55

such a central, dominant role in

2:58

contemporary public policy and why this

3:02

behavior is so problematic from an institutional

3:04

perspective without understanding the Shadow Docket, without

3:06

understanding all of the ways in which

3:09

the court actually operates behind the scenes

3:12

to consolidate power, to hand down rulings

3:15

that affect all of us, even

3:17

in contexts in which they're not explaining

3:19

themselves. And so, the ambit of the

3:21

book is not just like, here's an

3:23

obscure corner of the Supreme Court's workload,

3:25

but rather, hiding in plain sight is

3:28

a whole bunch of pretty important lessons

3:30

about the court as an institution that really

3:33

helped to put into context what's so problematic about

3:35

the way the current justices are behaving. Right. So,

3:37

well, why don't we reset then, and just in

3:39

case anyone's not familiar, you want to give us

3:41

kind of the basic 101 on the

3:43

Shadow Docket, what it is, how it's

3:45

evil, all the, you know, basic stuff. I

3:47

mean, it's not a formal thing. It's basically

3:49

an evocative shorthand that a Chicago law

3:52

professor named Will Bode coined in

3:54

2015 to describe basically everything

3:56

other than the Supreme Court's

3:58

merit stocket. everything other than

4:01

the 60 to 65 signed decisions

4:03

in our viewed cases that the

4:05

Supreme Court hands down each term.

4:08

And Will's insight, which I have

4:10

sort of shamelessly expropriated, basically

4:12

have at their core the idea that like

4:14

the Supreme Court as an institution is a

4:16

whole lot more than the sum of

4:19

its merit stocket and that the sort of

4:21

the way the court structured its stocket, like

4:23

how it picks and chooses which cases to

4:26

hear, how it sort of decides how it's

4:28

going to hear them, emergency applications

4:30

when the question is, while a case makes

4:32

its way to the Supreme Court, what should

4:34

the status quo be one way or the

4:36

other? All of that, I think, is an

4:39

important part of what the court does. And yet, Thomas,

4:42

we don't talk about it. Journalists don't cover

4:44

that part of the court's work. The public doesn't think

4:46

about that part of the court's work. And so it

4:49

literally and metaphorically really is in

4:51

the shadows, not as a

4:53

pejorative, but just from the perspective of

4:55

inscrutability and obscurity. The

4:58

sort of the ambit of the book is to say,

5:00

hey, guys, here's the history of how

5:02

this power, how these practices have evolved.

5:05

Here's how the court has used unsigned,

5:07

unexplained orders to consolidate its authority before

5:10

turning to say, here's why what the court's doing today with

5:12

these orders is even worse. So it's like that old jazz

5:15

thing where it's like, no, you got to listen to the

5:17

notes. They're not playing. You know, it's like that. You got

5:19

to listen to the stuff that they're,

5:21

well, I guess they are still doing it, but

5:23

it's not really an active decision where we get

5:25

to read all the dissent and the and then

5:27

all the detail. It's it's kind of the

5:30

stuff. It's not an official thing. I don't

5:32

don't don, you know, shadow robes or anything

5:34

like while they make these decisions, just the

5:36

things they kind of don't take on.

5:39

Is that kind of the thrust of it? That's

5:41

exactly right. And I just go one step further and

5:43

say, you know, it would be

5:45

enough to describe it that way. But

5:48

it goes even further when you think

5:50

about it from the perspective of the

5:52

orders the court issues, these unsigned, unexplained

5:54

orders are not just sort of, hey,

5:57

we're staying out of this. It's

5:59

oftentimes were issued this

6:01

order and that order produces Thomas

6:03

massive downstream real

6:06

world substantive and

6:08

or practical effects. So

6:11

a couple of examples, right? The OSHA

6:13

vaccination or testing mandate that the Biden

6:15

administration had proposed in the middle of

6:18

the COVID pandemic blocked on the shadow

6:20

docket. SB8, Texas' controversial six-week abortion ban,

6:22

allows it to go into effect on

6:24

the shadow docket. So the

6:27

congressional apportionment, right? Alabama and Louisiana

6:29

were both able to use congressional

6:31

district maps in the 2022 midterms

6:35

that lower courts all had held to violate the

6:37

Voting Rights Act because of unsigned,

6:39

unexplained orders from the Supreme Court on

6:42

the shadow docket, which might have something

6:44

to say with the Republican majority in

6:46

the House. So these are rulings that

6:49

even though they have no explanation, even

6:51

though they're obscure and inscrutable are unquestionably

6:53

having massive impacts on really Thomas, all

6:56

of us. Yeah, yeah, I

6:58

think it could have been the voting rights one

7:00

or maybe it was that horrible Texas abortion law

7:02

when I think a lot of people might have

7:04

become aware of this. So

7:06

it's not just the things they're not

7:08

doing. It's also you're saying an

7:10

active action because I guess if we all understand

7:12

the law to be one thing and we understand

7:15

like we have certain rights, you know, certain rights,

7:17

whether it's voting or right to choose what we

7:19

do with our bodies, that kind of thing. And

7:22

some asshole state somewhere, somebody passes

7:24

something that's horrible and restrictive and

7:26

takes away our rights. And

7:28

then the court says, no, we're not

7:30

going to do anything about it. That's effectively them

7:33

taking away rights we thought we had. Is that

7:35

kind of what you're saying here? I mean, that's

7:37

one species and that's an important species. I mean,

7:39

the SB eight case is a good example of

7:41

that. Roe versus Wade became effectively a dead letter

7:43

in the nation's second

7:46

largest state ten months before the

7:48

Supreme Court formally overruled it in a Dobbs

7:50

case. But that's actually just one piece

7:52

of it. I mean, that's that sort of passivity on

7:54

the court's part. We're also seeing

7:57

the court actively intervening. So the OSHA

7:59

case, the the court is actively blocking

8:01

a government policy. Back late in the

8:03

Obama administration, the Clean Power Plan, blocked

8:05

by an unsigned, unexplained five to four

8:08

ruling of the Supreme Court. And one

8:10

of the things that the book tries

8:12

to put into context for folks who

8:14

don't follow the Supreme Court as closely

8:16

as people like me

8:18

do, is that this is new, right? That

8:21

if you actually go back throughout the court's history, yes,

8:24

there was always a mechanism

8:26

for dealing with these so-called

8:28

emergency applications. But you didn't

8:30

see rulings like these, where the court

8:32

would issue these orders that had such

8:34

massive practical and legal impacts that

8:36

affect so many people. This is

8:39

a real significant difference and a change in

8:41

how the court is operating at this institution.

8:43

That was actually gonna be my next question,

8:45

because I saw, even in the book blurb,

8:47

you say since 2017 is kind

8:49

of when it's really taken off. I'm wondering

8:51

why you think that is, and I'll combine it with

8:53

another question I had, which is, it's

8:56

not as though Republicans and religious fundamentalists

8:58

who are on our court, it's not

9:00

as though they're shy. So

9:02

why is it a shadow docket, why

9:06

don't they just openly do this in our

9:08

faces like they indeed did with striking down

9:10

Roe? So it's kind of a compound question

9:12

there, but why did it change? And

9:15

why, I mean, they don't seem, again,

9:17

shy to shove this down our throats.

9:19

So why such use of the shadow

9:21

docket in this way? You know, Thomas,

9:23

it's a bit of a subjective question

9:25

I can't answer fully. But I think

9:27

we have a couple of data points. I

9:29

mean, so the real shift

9:31

starts happening in the mid 2010s. And

9:34

we start to see the court, as the book sort of

9:36

explains from like 1980 into the 2010s, we

9:40

have seen some of this behavior, but

9:43

only in the unique and uniquely

9:45

limited context of last

9:47

minute applications from death row in

9:49

mid-day executions. And I

9:51

mean, that's a story unto itself, but like whatever

9:54

you might say about the bizarre

9:56

procedural shifts and accommodations the court makes

9:58

in the death row. context. They

10:01

were limited to the death penalty. And

10:03

so the shift is really partly a function

10:05

of the pathologies of the death docket expanding

10:08

into other contexts. And I think some of

10:10

that is political, that the sort of the

10:12

political tide shift, some of that's doctrinal, that

10:14

the justices become more willing

10:17

to stretch these precedents. But

10:19

the two biggest inflection points

10:21

are one, the Trump

10:23

administration, where for the first

10:25

time, the executive branch is regularly coming to

10:27

the Supreme Court to seek this kind

10:29

of emergency relief. I mean, just during the

10:32

Bush and Obama administrations from 2001 to

10:34

2017, the Justice Department goes to

10:38

the Supreme Court for emergency relief a

10:40

total of eight times. So once every

10:42

other year, in four years, Trump goes

10:44

to the court 41 times. So

10:47

there's this flood of applications from

10:49

Trump. That's big development number one

10:51

and big development number two, once Justice Kennedy retires

10:54

in 2018, and is

10:56

replaced by Justice Kavanaugh. Now you

10:58

also have sort of the disappearance

11:01

of the moderating force in the middle of

11:03

the court. Now you have five votes who

11:05

are regularly inclined to grant relief in context

11:07

where previously they might not have been. And

11:10

so the data backs us up, the

11:12

data suggests that like, things really start

11:14

accelerating. And, you know, to

11:17

my perspective, running off the rails shortly

11:19

after Justice Kavanaugh's confirmation. And

11:21

then when Justice Barrett is confirmed in

11:24

2020 to replace Justice Ginsburg, the

11:26

wheels come totally off. And the court just starts

11:28

doing all kinds of stuff on the shadow docket

11:30

that really we had never seen it do before.

11:33

And Thomas, to your last point, why use the

11:35

shadow docket? So I actually think

11:37

that for a while, a lot

11:39

of this was not intentional, right? That

11:41

for a while, like in the Trump

11:44

cases, the court was really

11:46

just reacting iteratively, and just never

11:48

sort of took a step back, let like the

11:50

frog and the boil and pot of water, the

11:53

court was already in the pot. And so it

11:55

didn't appreciate how much the temperature was rising. It's

11:58

really only in the last like year

12:00

or two in some of the COVID

12:02

cases out of California, for example, where

12:05

we see the court using the

12:07

shadow docket while it has similar

12:09

opportunities to say the same things

12:11

in cases that are pending on the merit docket. This

12:13

goes back to where I think the breaks really come

12:15

off when Justice Ginsburg dies, right?

12:17

And when even John Roberts is no longer the

12:20

median vote, when now it's, you know, Justice Kavanaugh

12:22

or Justice Barrett, who's the median vote

12:24

on any kind of contentious emergency

12:27

application. Yeah. Okay. So that that

12:29

makes sense. Because earlier, when you said there

12:31

was five four decisions, again, as a non

12:33

expert, trying to understand just the mechanics of

12:35

this, sorry, to reset a little bit. So

12:37

it's like, decisions not to take

12:39

up cases. It's also, it also is entire

12:42

decisions where it's, you know, you said five

12:44

four, but they just don't write any explanation

12:46

for it. Like mechanically, what are the different

12:48

things going on here? Yeah,

12:50

I mean, so, you know, one of the

12:52

weird things about any order, the court issues,

12:54

whether it's an emergency order, a regular procedural

12:56

order, is that just by tradition, they're not

12:58

signed. So we have no idea who wrote

13:01

it. They're not explained. So there's often no

13:03

analysis. And indeed, we don't even know who

13:05

voted which way. I mean, the only way

13:07

to know a vote tally in

13:09

an order is if you can account for

13:11

at least four of the justices in dissent.

13:14

Oh, because we know, I mean, we have

13:17

examples of what are called self-dissents, where maybe

13:19

only one or two justices publicly say they're

13:21

dissenting, but we actually know it was three

13:23

or four. Wow. And I mean, that's a

13:25

relatively small point, like at the end of

13:27

the day, whether a decision seven to two

13:30

or six to three doesn't change what the

13:32

decision means. But I think

13:34

it's emblematic of the broader phenomenon,

13:36

which is that, you know, these decisions are

13:39

inscrutable, not just in what they say, but

13:41

in who's saying it. So just one example,

13:43

there's an Alabama death penalty case from

13:45

last year, where the court actually blocks

13:47

an execution, actually the last time the

13:49

court blocked an execution. And

13:52

we know that justices Thomas

13:55

and Kavanaugh and Chief Justice

13:57

Roberts dissented, but we also

13:59

know Though that just bear it was

14:01

in the majority for sure to concurrence as

14:04

though we know is that least six to

14:06

three but it might have been five

14:08

to fourth. We don't know where Justices Alito

14:10

or course it's worth. At. Least

14:12

one of them has to be in the

14:14

majority. It sure would be interesting to know

14:16

why courses in Alito who are not exactly

14:19

sympathetic to. Eleventh Hour claims from

14:21

Death row inmates. Voted. For this one.

14:23

And yet we only know that they voted for it, let

14:25

alone why. Wow. Whim, it is

14:27

blowing mind. I haven't actually paying attention and

14:29

stuff for a while. Are you saying that

14:32

even like normal run of the mill opinions

14:34

were, we get everything. We don't know the

14:36

votes unless they write a descent or do

14:38

we know them in that case. So if

14:41

it's assigned opinion, if the majority opinion says

14:43

opinion of the court by justice I don't

14:45

know Kagan, then we go to vote because

14:47

the British it is. everyone's accounted for. Gotta

14:50

go somewhere in the court's decision it'll say

14:52

Kagan deliver. The pit of unanimous courts are

14:54

also Kagan delivers opinion which. These justices

14:56

joy at okay but every order like

14:59

every civil order and indeed some opinions

15:01

of the court any pettiness denominated procure

15:03

young million for the courts We don't

15:05

know the vote count unless they're for

15:08

to sense. The short version is that

15:10

likes this is not valid problem with

15:12

the shadow dockers, just sort of an

15:14

emblematic complication of how when the court

15:17

acts through these unsigned orders, what the

15:19

court is doing is actually that much

15:21

harder for us to parse. Yeah.

15:24

And I imagine if you are trying to

15:26

predict what they might do in the future,

15:28

you know to know what the law actually

15:30

is. It would be nice to know the

15:32

reasoning. Of who voted which way

15:35

you know and why that seems pretty

15:37

I don't know. Mandatory in in knowing

15:39

how to proceed forward well as them.

15:41

Thomas' Israel is essential if you are

15:44

a lower court judge or a government

15:46

official. To. Understand why the court

15:48

has blocked or not blocked the

15:50

rule him or the policies are

15:52

case, Brass goes even deeper. I

15:54

mean, on the rare instances when

15:56

the Supreme Court or at least

15:58

the justices thereof. Reflect upon

16:00

the sources of the courts legitimacy.

16:03

They. Invariably and up in the same

16:05

place. Which is, that's the course. Legitimacy

16:07

as an outgrowth. Of. His ability

16:10

to provide principal justifications for his

16:12

vision. Megan. And the

16:14

point is not that you or

16:16

I or anyone else agrees with

16:18

those principles. The. Point is that

16:20

we agree that they are principles. And.

16:22

So the fact that we disagree with the principal doesn't matter

16:24

as long as we really like hazards they're doing with the

16:27

judge theory with it's not that him I would do. The.

16:29

Sato doc. It exacerbates the

16:32

legitimacy problem. Because. When there's

16:34

no opinion. There's. Nothing to push

16:36

back against the appearance. Yeah that the justices

16:38

are vote him based on political parties, in

16:40

interest and not based on commitments and he

16:42

broader principles of teach replicability. Yeah, it's like

16:45

I may not agree with the speed limit.

16:47

am I want to be a little faster?

16:49

We got near fuckers verdicts. Where are we

16:51

can go fast and I don't know but

16:53

legalese I know there is a speed limit

16:55

in as whatever it is on a given

16:57

road. it's like it this way. I'd someone

16:59

just ruled that I got a speeding ticket

17:01

but I don't know. why. are. You

17:04

know, like what the reasoning is as entire

17:06

thing that you won't know how fast you

17:08

can drive tomorrow? Yeah exactly and disputed. it

17:10

will seem to you arbitrary and capricious he

17:12

has. Yeah Just to pick two words just

17:14

outta nowhere I discuss Assist Assist with others

17:16

are my S E I think What? I

17:18

guess what? What tricked me for a second

17:21

there is. I guess you're saying some of

17:23

these orders they don't have to sign the

17:25

middle, have to writing but sometimes they do

17:27

any kind of looks like a regular opinion.

17:29

Is that what may be tricked me up

17:31

without? It's like once in a blue moon.

17:33

The court will issue an opinion of the

17:36

court respected in order. And so

17:38

he ah the court will like grants or

17:40

stay and then write a short reason explain

17:42

in itself my I'll just say that those

17:44

are very very few and far between. And

17:47

even when the court writes an opinion in

17:49

those cases that tend to be much shorter

17:51

than the typical opinion that we get from

17:54

the supreme court. Their. Unsigned and

17:56

I didn't to put it charitably, thomas

17:58

some of the ones. Recent years

18:00

have left the little to be desired.

18:03

When. It comes to the L a decal reason

18:05

within them will don't beach or of on my

18:07

bf because I have no checklist of the specifics

18:09

of still got a way to be charitable at

18:11

I don't I've lost all the know. Kind.

18:14

Of the benefit of the doubt with this court. Yeah.

18:16

I another i know basic question though probably

18:19

sound ridiculous the you but like he could

18:21

any decision be a shadow doc It does

18:23

it. What determines with an order and what's

18:25

an actual decision on the mare? A do

18:27

they. Are as at work like how

18:29

do they decide which is what or is it

18:32

a certain category of stuff that's an order versus

18:34

the full decision on the merits. Everything.

18:36

That happens at the Supreme Court. starts as

18:38

Nord and so the sort of this The

18:40

Nord is the shadow docket. Oh really okay

18:43

right to be. So it's if you lose

18:45

a case in the court of appeals and

18:47

you ask the supreme courts or take up

18:49

your appeal your file on with called a

18:52

petition for sir sure ours which is asking

18:54

the court is an issue in unsigned unexplained

18:56

order granting rotates granted repeal. And

18:58

or deny him European so that

19:00

doesn't He was like the courts

19:03

general sort of structure is to

19:05

resolve everything through orders. Except

19:07

for those few dozen

19:09

cases, every term. That.

19:12

Using an onside unexplained order the

19:14

courts users to give plenary consideration

19:16

to the has another round of

19:18

brief been to have oral arguments

19:20

and as a hand down this

19:22

like a lengthy side opinion on

19:24

behalf of the court. And. One

19:27

of the sort of basic points the book

19:29

tries to drive home and be there is

19:31

has his. Those are the exception. Even.

19:33

Though from us or a popular discourse

19:35

perspective that for almost all public's attention

19:38

on the supreme court's focused. It's.

19:40

Really, at most one percent of

19:42

what the Supreme Court does by

19:44

volume in any given year. Not

19:47

even usually that much. And

19:49

the other ninety nine percent is not

19:51

all equally significance. But. That doesn't mean

19:53

the other nine nine percent as insignificant. Yeah, If.

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p I are.com so I guess just

20:26

make sure I understand if they wanna

20:28

do have a court wanted to be

20:31

are no evil enough to the Sprinkler

20:33

Just essentially. Turn everything into shouted I could

20:35

they become a full shadow Doc it they want

20:37

to do it sort of. That's the norm years

20:39

as like the default. I just just

20:42

the court's docket is structured so that

20:44

the court actually is gonna has take

20:46

could resolve kisses on the merits, but

20:48

there's nothing in a statute that requires

20:50

them to, right? Yeah, the court's jurisdiction

20:52

is now almost entirely discretionary. The justice

20:55

choose which case is to hear that,

20:57

choose which is used to decide within

20:59

the cases they've chosen. the hear. The.

21:01

Number of cases the court is your

21:03

and on the mirror stock. It has

21:05

declined some what precipitously in recent years,

21:07

so that the over the last four

21:10

terms the court has been under sixty.

21:12

Talk is it's term. It hadn't been

21:14

under sixty since the middle of the

21:16

Civil War. Or. Know the I

21:18

think that the reality is that like

21:20

one of the reasons why have we

21:22

seen this explosion the shadow.is because it

21:24

has become a lot more convenience. The.

21:27

Flip side, and the point where I think

21:29

Grassley some good news for folks who are

21:31

a little worried about these developments is that

21:33

I think at least partly in response to

21:35

the far more. Visible. Public

21:37

awareness and criticism of the shadow

21:39

dockets at least so far this

21:41

terms as were sitting here talking

21:43

in April. The. Court has actually

21:45

moderated it's behavior on the shadow

21:47

Doc it to a significant amount.

21:50

It hasn't intervened nearly as often this

21:52

term as it has in the recent

21:54

past. It hasn't engaged some of the

21:56

same problem out of behavior nearly as

21:58

often as a hadn't Paso. So I

22:01

actually think that. Even. Though

22:03

there's no formal constraints.

22:06

On. The court use of shallow doc even

22:08

more abusively. Does. Sort of

22:10

rise of public awareness. Understand him? And.

22:13

With it public criticism. Has.

22:15

Actually, push the justices to change their ways,

22:17

not entirely for the manner, but also like

22:19

not just frivolously for the better. I mean,

22:21

there's some of these reforms wraps I think.

22:24

really meaningful. Yeah, like maybe they won't start

22:26

riding around on billionaires, nazi memorabilia collectors jets

22:28

are not that we we. I meant that

22:31

never to have written about the a bridge

22:33

too far as or a yacht I guess.

22:35

Maybe. It's the Our.

22:37

Maybe they'll just start reporting it and not carrying that

22:39

they're doing and I guess I'll be the next month?

22:42

Not us, But blast him as at the risk of

22:44

time to disparate threads. Together. I mean, it's

22:46

I actually think that sort of

22:48

the ethics conversation. Surrounding.

22:50

Not just Justice Thomas, but the whole court.

22:53

Is. Actually, not as unrelated to the sort

22:55

of the project of the Shadow Doctors it

22:57

might seem at first blush. Because.

23:00

To me that stem from the

23:02

same or disease. Which. Is

23:04

a pretty appalling breakdown in the

23:06

separation of powers and in what

23:09

had for the better part of

23:11

the courts. Certainly. First one

23:13

Hundred and fifty years. and really, even most

23:15

his first two hundred years been a pretty

23:17

healthy interbranch dynamic. Where the court

23:19

had a lot of power but

23:22

is Ashley was in conversation. With.

23:24

The political branches with congress with the

23:26

president. About the shape of is

23:29

talking about it's workload, about the justices

23:31

and what kind of people we wanted

23:33

on the court. One really

23:35

silly example, but like Chief Justice

23:38

Burger. Who you know and really

23:40

them such as like are a leading

23:42

institutionalist. Started. This tradition in the

23:44

mid nineteen seventies have given my year and

23:46

report on the state of the Federal judiciary

23:48

that he envisioned as some kind of like

23:50

traditional state of the Union address. And

23:53

the idea was that he was could identify

23:55

places where the courts needed help. From.

23:57

Congress or from the Executive branch of.

24:00

We like hey Congress Here's a shopping list

24:02

for consider. And. You know, the

24:04

virtue of that was not just to have

24:06

the court articulate what it do to others.

24:09

The big problems it was. the court tacitly

24:11

can see him. That. Com or could

24:13

help set of the congress should help

24:15

as what's remarkable that your two robbers

24:18

has continued the tradition of this year

24:20

and reports was started in two thousand

24:22

nine he stopped asking for hims. What?

24:26

Kinds of things? are we asking foreigners than.

24:28

Nicer robes been wiped out, increase in

24:30

the budget for like maintenance right and

24:32

hack infrastructure. Jurisdictional reforms is is for

24:35

some for the whole entire Federal. I

24:37

don't know why. as amazing as just

24:39

the supreme court like they're trying to

24:41

get tricked out with all the see

24:43

a focus noted out as both a

24:45

bit broader view his jaw this are

24:47

speaking on behalf of the entire for

24:49

this year including the supreme court. So

24:51

one of my favorite examples is in

24:53

his Ninety Ninety Eight year and report

24:55

showed it rots like New Years and

24:57

I said nine to. Justice Rehnquist excoriated

24:59

senate republicans and was incredibly critical

25:02

of them for refusing to give

25:04

up or down votes to President

25:06

Clinton's judicial nominees. Ah, which ios

25:08

you know Rehnquist that his politics

25:10

life with was yeah, and as

25:13

we know that, solve that problem

25:15

right then and there and never

25:17

again. In. Rio and you know

25:19

a success and I read so. Family assessment

25:21

of how was floored we would be saved

25:24

on Robert. I'd our yeah yeah definitely. It

25:26

is Kind of surprised they didn't say anything

25:28

during the whole Merrick Garland staff did. They.

25:31

Know. And that's again, a symphony.

25:33

The disease, right? Yeah, what's highs?

25:35

All these threads together is a

25:37

court that is just completely on

25:39

beholden to anybody else at a

25:41

course that is not remotely worried

25:43

about being checked from anywhere else.

25:46

Yeah, I'd say. doesn't seem like the best distance.

25:48

Me? I don't I don't feel like that's a

25:50

good idea. Physicists: where did where I know it's

25:52

it's basically futile. But what would we do about

25:55

this? How do we? I mean, were you on

25:57

the court Reform fact? The court? You know what?

25:59

it, whatever. The kind of now I guess a

26:01

movements on our opinions on on what to do.

26:03

What were you on? That. So.

26:05

I'm a bit it is idiosyncratic. I didn't

26:07

reform is desperately necessary. I took her to

26:10

start. small, not big, so you know, making

26:12

the reform conversation about Adam cease to the

26:14

courts, or about term limits or about other

26:16

ways of sage on the composition of the

26:18

court. Sooner. Rather than later is

26:20

to me deeply counterproductive and sort of

26:23

misses the low hanging fruit which is

26:25

that the reform conversation should start with

26:27

just impelled Congress to do anything. Yes,

26:30

a sort of rebuild a healthy interbranch

26:32

dynamic at which point will be the

26:34

better position if Iraq which reforms are

26:37

the best. I will say I am

26:39

not fatalistic about this. If

26:41

for no other reason, thomas them because we

26:43

already have evidence that the justices happens. Isn't.

26:46

right? It's on like on the merits

26:48

Docket On Like when it comes

26:50

to your dogs and Bruin and

26:52

all these huge headline generating cases.

26:55

We've. Seen the court t just behavior

26:57

on the shadows architects in if not

26:59

direct response than certainly at least. Contemporaneous:

27:02

Response to a lot of the

27:04

public attention and public criticism. And.

27:06

So you know it's used to me that like

27:09

for those who are down on the process of

27:11

any court reform had him any impact. Years.

27:13

Evidence of how it engaged

27:15

and enraged public may have

27:17

already accomplished more reform that

27:19

people would probably want to

27:21

admit. Well I mean I hate to

27:24

say of and I'm and I'm a lot of

27:26

on the on the court may be s at

27:28

the risk of i don't wanna be a jerk

27:30

but like also rose struck down since it's like

27:32

is it can like that old proud of you

27:34

stabbed someone than you take years nice out a

27:36

half an inch it's like. He can

27:39

really be congratulating them for that, right? No.

27:41

I mean that this is not to sell

27:44

so again I'm not sure of the course

27:46

of when it's just a people should not

27:48

be fatalistic about the impact of public pressure

27:50

in public push back and you know I

27:52

think the row point is exactly right because

27:54

the place where the just sort of the

27:56

be the most and french and the least

27:58

amenable to public pressure. Is the

28:00

merits Docket vs. Institutional procedural

28:03

reforms that are not hitched as

28:05

and not designed to curtail the

28:07

course power, but rather are designed

28:09

to actually help bolster the courts

28:11

legitimacy and help improve right the

28:13

course ability to function which is

28:15

a projects that are you know

28:17

I would actually think concerns would

28:19

almost be more supportive of the

28:22

Liberals given where we are today.

28:24

so you're at. This is why

28:26

I'm a bit a sort of

28:28

unpopular with everybody who has suffered.

28:30

I think this is also important.

28:32

Insight that is missing from too much of

28:34

the current conversation. Like it. A world in

28:37

which it's not realistic to take the composition

28:39

of the supreme court and I'm and I

28:41

think the politics nominate as not realistic. We.

28:44

Already talked about other ways reform in the

28:46

court that are plausible. And. That actually

28:48

get the core disease which is

28:50

not the identity of the current

28:52

conservative justices. It's the

28:54

absence of the current

28:56

majority composed of whoever.

28:59

Be. Remotely worry that anyone's gonna push back

29:01

on anything they do. I

29:04

yeah, I don't. I don't know, I did.

29:06

I don't. You feel like that is ultimately

29:09

because of who's on the court though, or

29:11

at least who was in in power? I

29:13

mean, I guess I'll put it this way,

29:15

has anything changed that led to this decrease

29:17

in accountability As it seems like that's been

29:19

written in from the beginning? I thought, I

29:21

don't think those are in from the beginning?

29:24

I mean, so you don't So Eighty Ninety

29:26

One Congress made the justices literally ride circuit,

29:28

right? So every year the just as would

29:30

have to go out on the road and

29:32

travel across the country and sort of go.

29:34

Sit in local courthouse in here. Level

29:36

can always said he her there was

29:39

no real value of either your maybe

29:41

maybe and seventy ninety five there is

29:43

value to that by the aged forty

29:45

eight his fifties. With the advent of

29:47

modern celebrity, there's no value and that

29:50

Congress is doing that just to fuck

29:52

with them right address to remind them

29:54

who's boss. And same is true. Like

29:56

it's not until it out of President

29:58

Taft comes to office. That. There's any

30:01

serious discussion of lead on the Supreme Court,

30:03

even have it's own build them right. Until

30:05

Nineteen Thirty Five, The Supreme Court meet in

30:07

the Capital. Until Eighteen Sixty. It meets in

30:09

the basement. A capital the up at what

30:11

kind of powerful institutions sits in the basement

30:14

of another breaths. So. You know?

30:16

I guess. There's no question

30:18

that just today, the court exercises

30:20

an enormous amount of unchecked power.

30:23

Part. Of the Poor The Book is to remind

30:25

everyone that it wasn't always so and that there

30:27

are ways in which the rise of the Shadow

30:29

docket, the rise of the course ability to said

30:31

it's own agenda. Is directly related

30:33

to and a D was intentionally designed

30:36

to give the court more institutional autonomy,

30:38

authority and independence and one of the

30:40

ways to push back against that isn't.

30:42

The changes on the court is to

30:44

restructure the relationship between the courts and

30:46

the rest of the government. But you

30:49

don't think that skin and still be

30:51

read as a threat to their power.

30:53

So like I guess? Ah yeah, like

30:55

maybe some specific like what kind of

30:57

low hanging fruit are you envisioning that

31:00

won't be looked at as an existential

31:02

threat to their. Their Power by conservatives?

31:04

Yeah, I'm yeah. I would like Congress to

31:06

bring back a whole bunch of what's called

31:08

mandatory pellets or six and so forth. The

31:11

court to actually take more cases and not

31:13

just in the abstract, forced The course. It

31:15

takes some of the very kinds of cases

31:17

that they're dealing with only on the shadow

31:19

doc in death row prisoners to have. It

31:22

sounds to the method execution. Well, Congress because

31:24

the statute that says the Supreme Court must

31:26

year a direct appeal of your salads and

31:28

you can't be executed until the Supreme court

31:31

resolves your appeal. That would take away. A

31:33

whole chunk of cases from the emergency doc is

31:35

in one fell swoop. Both. So worried

31:37

about nationwide injunctions? Wealth make any

31:39

nationwide injunction immediately appealable to the

31:42

Supreme Court and force the supreme

31:44

court to hear the appeal. There

31:46

are ways that you can expand

31:48

the court's docket, and you can

31:50

expand the courts workload. That's not

31:52

actually undermine him. The justices power.

31:54

You're not Same Head Justice Cavanaugh.

31:56

You can't hear this case. You're

31:58

saying why? Her. Is why you're

32:01

some other ones to Congress can also

32:03

talk about. You know, given the lower

32:05

courts more ability to put kisses on

32:07

the supreme court's docket and those are

32:09

to sort of. Some examples com was

32:11

could talk about the supreme court's budget

32:14

again in ways that are not just

32:16

entirely perfunctory and pro forma. And I

32:18

think there's a tendency on the part

32:20

of conservatives these days to think that

32:22

any court reform is necessarily good for

32:24

liberals and bad for conservative. I don't

32:27

get that has to be true. One

32:29

of the Sims. I find most interesting

32:31

about looking at the Supreme Court is

32:33

in the shadow Doctor cases. We often

32:35

see John Roberts to send him with

32:37

the Liberals. And you know that's not

32:40

because at some own right wing media

32:42

might portray he's a squish, it's because

32:44

he's institutionalist. Yeah, and you know

32:46

is he understands that like is

32:49

Ashley antithetical. To. A

32:51

long term conservative agenda. For.

32:53

The court to lose it's legitimacy which

32:55

is why as seems to me that

32:57

like even those you love the current

32:59

court who want the current majority to

33:01

be ascendant forever should also want the

33:04

courts to actually be perceived as it

33:06

is to to slowly healthy place. Even.

33:08

If it's head of the decisions that alien

33:11

a large sums dinner for people to me

33:13

Thomas the story of the Supreme Court over

33:15

his entire history is that it has seldom

33:17

been a force for good. In

33:20

American Social Justice. But.

33:22

It has function at a

33:24

much higher level. Institutional legitimacy.

33:27

Institutional Integrity. For. Much of that

33:29

history emails as it was doomed. bad substance of

33:31

them. Yeah, so that's a lot

33:33

there. I think that. I. Guess

33:35

my impressions has been boy. I sure

33:38

hope the court does less like.for their

33:40

fewer things they touch, maybe the better.

33:42

Like of without, they made me forget

33:44

about some of the right they haven't

33:46

taken away from people yet. But ah,

33:48

counterintuitively, it sounds like you're saying. Do.

33:50

More get their grubby little hands

33:52

on more things, but I don't

33:54

Isn't that just going to result

33:56

in? Okay, Maybe it's less shadowy.

33:59

But. Just in the bright light

34:01

of day ruining our life, So

34:04

I mean, look at the risk of of

34:06

mythical plug. This is why I hope everyone

34:08

read the book is your blog away the

34:11

insight that I think it's counterintuitive but actually

34:13

deeply supported by the course history. Is.

34:15

That part of why the court

34:17

was not an all powerful, dangerous

34:19

institution. At the end of the

34:22

nineties and because of the twentieth century is

34:24

because it was inundated with ordinary one of

34:26

the me up mill appeal and those ordinary

34:28

run the mill appeals took time line and

34:31

literally has to take up the hours and

34:33

the day that they could be ruining our

34:35

lives with with more bland stuff. I

34:38

mean, that's part of efforts, actually, I

34:40

think. which is one step more nuanced

34:42

than that. Which is that the sort

34:45

of when William Howard Taft furthest president,

34:47

and then as Chief Justice is aggressively

34:49

pushing to expand the course, sir, sir,

34:51

are a jurisdiction. it's discretion overstock. It's.

34:54

His entire argument. Was.

34:57

That he wanted the Supreme Court's

34:59

to function more as a constitutional

35:01

court. As opposed to a supreme

35:03

Court of appeals, they're sort of. There are

35:05

two different models. For. A court of

35:07

last resort. There's the Supreme Court of

35:09

Appeals, which is, trust, the last court

35:12

in the vertical hierarchy. There's nothing special

35:14

about it. Other than that, it

35:16

goes last. and then there's the Constitutional

35:18

Court, which is actually like functionally different

35:20

supposed to be. Do him a difference

35:22

in it serves a different purpose. Some.

35:25

Countries divide these functions. Germany divides

35:27

the Supreme Court of Appeals from

35:29

the classes or courts. Israel it's

35:31

the same court, but they actually

35:33

literally call themselves. Something else said,

35:35

depending upon the context, the we

35:37

blended right well. Our position for

35:40

some bloodthirsty functions and tasks insights

35:42

in the Nineteen twenties was the

35:44

weight of makes the court a

35:46

constitutional court was there. sure are

35:48

it was to expand the course

35:50

discretion. Well. Maybe the flip

35:52

of that is equally true that maybe it

35:54

would be better if we moved the pendulum

35:57

back toward it be a more of a

35:59

supreme court. Appeal. And that starts with

36:01

given more to do. Can you again

36:03

apologies for being a a lay person,

36:05

but can you can spell out what

36:07

that means in terms of the kinds

36:09

of. Cases. Your tie I guess

36:12

I don't know what it means when

36:14

you say just making in a court

36:16

of appeals vs whatever else like what

36:18

kinds of cases are decisions does that

36:20

mean they would take on are? Not

36:22

sure I mean so he out there

36:24

are literally thousands of cases every year

36:26

that had important questions of federal law

36:28

in them or that have some the

36:30

or maybe modest division and lower courts

36:32

about his or of are caused by

36:34

them that a supreme court doesn't take

36:36

up. Where the lower courts a startup

36:38

We have the last word. And.

36:40

The Supreme Court will ever know why the

36:43

court doesn't take up these cases. Some of

36:45

them like I you know there. there have

36:47

been cases I've been involved in about whether

36:49

let you see court martial any of the

36:51

two million retired service members for offenses they

36:53

commit after they've retired. See like a pretty

36:56

big questions. Court has it taken that we're

36:58

not. There Are you know, financial cases that

37:00

actually have really important implications for technical industries

37:02

that the courts days out of because it's

37:04

sort of doesn't wanna interviewed and messed up

37:06

thought the part of the court's docket that

37:09

has fallen off the most. Completely in

37:11

recent years is direct appeal

37:13

from state courts in criminal

37:15

cases where state criminal defendants

37:17

or challenge him their conviction

37:19

or sentence. On. You

37:22

know, federal constitutional grounds? The Supreme Court you to

37:24

tip a ton of those cases. The. Last

37:26

term for which we have complete data they

37:28

took to. While. From the entire

37:30

country. Different. People thomas a

37:32

different lawyers are going to have different

37:34

answer stuff. Which case is for the

37:37

corporate your of it's non. My point

37:39

is just that. like there's a ton

37:41

of demand out there. Yeah, and if

37:43

if commerce really wanted to actually assert

37:45

a modicum of control over the court

37:47

and I didn't put the court back

37:49

into a healthier equilibrium in the system.

37:52

It. Was you know at least have a conversation

37:54

it would hold. Here is that we talk about

37:56

how the court's docket has gotten so radically out

37:58

of kilter. As. We should bring it

38:01

back and your if there's nothing else folks

38:03

take away from the book or from the

38:05

at least this conversation, these are not perfect

38:07

and complete solutions. None of this is going

38:10

to bring back the war and court overnight.

38:12

But. I actually do think it's in our interest

38:14

to have a court that is legitimate. And

38:17

as perceived as legitimate. Even if

38:19

it's death by people with whom I vehemently

38:21

disagree. And you know that the

38:23

question we should be awesome ourselves is. Why?

38:26

If it's various earlier points in the

38:28

course, history. The. Justices were

38:30

part of interbranch conversation. And

38:33

that met that life. Thus the bad

38:35

decisions were not like legitimacy destroy him.

38:37

What is different about today and three

38:39

was a zipper about today is that

38:41

that conversation has stopped. And. The

38:44

court is just do a whatever that s it was.

38:46

And that's true in the procedural

38:48

context. Is true, and the

38:50

substantive context. It's true in the

38:53

By be a Vacation auto, private

38:55

jet and private yacht context. and

38:58

that mentality. that sort of monarchical

39:00

approach to the judiciary. Is.

39:02

I say of the root of all of the

39:04

more specific problems were see. That's. Interesting.

39:07

I just would have thought it went the other where

39:09

those and like you know, federalist society and the kinds

39:11

of. People. In the in

39:13

there you know, absurd jurisprudential theories like

39:15

that came first and then after that

39:17

they broke the system in ways that

39:19

was beneficial to them and their cause.

39:21

I can't think of it gone more

39:23

that way. but I think the point

39:25

where I sifted the question is, why

39:27

are the circumstances such that people like

39:29

that. Are. In a position to do

39:32

what they're doing? When. A Fortis

39:34

resides in Nineteen Sixty Nine, Right. And

39:36

as sort of the last day on

39:38

which there was a democratic majority on

39:41

the Supreme court, may Fourteen Ninety Sixty

39:43

Nine. Ford. Is resigned

39:45

because of Mount Doom. Public

39:47

pressure mostly problem with in

39:50

his party. About. A

39:52

legit financially apprised about his

39:54

shady relationship with a financier

39:57

because. The. Circumstances were such.

39:59

The politico Qantas was such. That.

40:02

People who might otherwise have been inclined

40:04

to do whatever they wanted to do.

40:06

Words. Absolute a position to do that. And.

40:09

Spaced Consequences. When.

40:11

What they were doing was made

40:13

public. Contrast the public reaction of

40:16

Fortis. With. The public reaction

40:18

to Thomas. And. That's just me

40:20

that it's less about the people and more about

40:22

the breakdown of institutional control. Warrior out. Okay, I

40:24

guess I just thought of those things is kind

40:26

a like once they're broken, they're broken. Does this

40:28

kind of norms like this and same way that

40:31

trump broke so many norms where you know now

40:33

it's like oh, we don't have to do that.

40:35

We don't have to be ethical on this way

40:37

or there's no accountability. I guess we'll never do

40:39

that again. I don't know how you get that

40:41

back. Put the genie back in the bottle, you

40:43

know, without exerting some sort of power over the

40:46

court. In a serious way. So.

40:48

I agree with items that exerting some sort of power

40:50

of the courts a serious way starts at the bottom,

40:52

not the top. What's.

40:54

The bottom us the specifics through the

40:56

been hundred eponymous step one. right up.

40:58

See the forest and not just the

41:01

trees. And right, the bottom is the

41:03

of First, let's start talking about the

41:05

court as an institution, right? And not

41:07

just as the specific personalities and the

41:09

merest docket. right? Listen, But actually talk

41:11

about what institution is doing and what

41:13

on, how about his two sons behavior

41:15

And it's up to it's. let's talk

41:17

about institutional reforms. That. Actually have

41:19

any chance of succeed him. As.

41:22

You saw reforms that are designed not

41:24

thoroughly to rate in the court, but

41:26

actually put the court back into a

41:28

healthy relationship. With. The other branches

41:30

I guess that the two teams I

41:33

would just sort of say is one

41:35

is earlier times in American history when

41:37

the court was more subject to these

41:39

tax. We. Saw results when

41:41

it appeared that the court got to for

41:43

out of kilter, right? I mean the switch

41:45

in time that save nine and nineteen, Thirty

41:47

seven or yeah happens only after Str points

41:50

a gun at the court right? Buddies threatening

41:52

to do the kinds of things that I

41:54

wanna do. It is back the court right?

41:57

Not that he didn't threaten minor tweaks that

41:59

the model. But he had the means

42:01

to do it yet, right? And so the

42:03

threat was effective than that's for sure. Yeah,

42:06

you you can threaten something that you have

42:08

no chance of doing. Agree with at night

42:10

as the what what what What that suggests

42:12

is that there are historical examples of the

42:15

court Chadian it's ways in response to genuine

42:17

and legitimate. Pushed. From the political

42:19

branches that actually had a chance to succeed

42:21

him. So point of or one is that

42:23

like hey, there's historical precedent for this. But.

42:26

Point number two is nothing else is working.

42:28

so should we at least try this before

42:30

we give up? Oh yeah, I say. I think

42:32

we should try every two hundred two bucks.

42:34

I guess where I was going from on

42:36

this is maybe it's a more i don't

42:38

know radical position or something, but I find it

42:40

fundamentally the are unjust that. The

42:42

party that has lost in almost

42:45

every popular vote for I don't

42:47

know decades has gotten to choose

42:49

so many of these nine incredibly

42:52

important people who seemingly have. Infinite

42:54

power over us. That's just not fair and

42:56

it feels it just doesn't feel like enough

42:58

to to tinker on The margins are to

43:00

your point about what we can can't do.

43:03

I guess I was hoping or around as

43:05

hoping, but I was thinking the path forward

43:07

was getting enough people who don't care about

43:09

the filibuster to where we can threaten to

43:11

you know, act the court in the same

43:13

way that Fdr might have threatened to do

43:15

that. That doesn't feel that far away to

43:17

me. Assuming we could win a few more

43:19

seats and put a few more people in

43:21

who don't care about the filibuster, I guess

43:23

my question to you is. Is that something

43:25

that you fundamentally don't want to do?

43:27

Or you just think we aren't really

43:30

close to being able to do arms

43:32

Both Assad is because it might my

43:34

at. I've written about this on my

43:36

substantial. I've heard about this elsewhere us

43:38

my sort of. Hostility.

43:41

To court expansion. Has.

43:43

Nothing to do with a lack of

43:45

and having her about how Republicans have

43:48

abused the court. And I don't

43:50

disagree for a seconds. With. Those who

43:52

think it would be payback for for

43:54

a lot of misdeeds of it's payback,

43:56

those are just getting things to where

43:58

they should have been. I don't know

44:01

what. Okay, but but Thomas here's the problem,

44:03

right? It's also a risk the bottom at

44:05

that point and so did a. Once the

44:07

democrats are assume that the votes, the line

44:09

and the stars align. And. A bill

44:12

to add two to four seats to the court

44:14

somehow makes it through both chambers and onto the

44:16

President's desk. And I don't think

44:18

it's that far out of the realm

44:20

of possibility that the Republicans the next

44:23

time they control. Both. Chambers of

44:25

Congress and the White House would add

44:27

eight seats to the court. or and

44:29

then the Democrats enough time they're in

44:31

control without twelve seats to the courts.

44:34

And all the sudden, you've gotta supreme

44:36

court with thirty seven justices and no

44:38

credibility. Because. It has

44:40

been absolutely appropriated and exploited in sally

44:42

to reflect the will of the current

44:45

political majority. Yeah, well, that's what it

44:47

has done though. the suffix I think

44:49

we're already at that point. We

44:51

just don't have enough people realizing it.

44:54

So. I guess this is whereas

44:57

if you I disagree or I

44:59

figure I think they're us, a

45:01

series of both incredibly unfortunate events

45:03

and really arrogance. Behavior.

45:06

By. Republicans has created the current

45:08

majority. But thomas the history, the

45:10

Supreme Court has lots of stories

45:13

like that. I mean the composition

45:15

of the court at any moment

45:17

in American history. Is. It

45:19

was a function of for

45:21

to it he and political

45:23

machinations of manipulation. And.

45:25

I think that's. Odd. Itself

45:28

a problem. But. It was

45:30

young, blown to smithereens by the notion

45:32

that any time you don't like the

45:34

current court, you just add seats to

45:36

it. Like to me, that's a road

45:38

to destroy. The court is this to

45:40

said and there are plenty of progressive

45:42

for whom that is a feature, not

45:44

a bug. Yeah, yeah, I don't begrudge

45:46

them that, I'm just not one of

45:48

them. Sure, Yeah, No, no, I

45:51

died. It's healthy disagreement here and

45:53

I think that. I guess

45:55

where I'm sitting it's it's not any time

45:57

we disagree with. I think the other variable

45:59

is just. The. Shamelessness.

46:02

And which I think you'd agree has just reached

46:04

a new level. You didn't used to be able

46:06

to sure there were swings based on politics, but

46:09

you didn't used to be able to predict exactly

46:11

how every justice would vote based on their politics.

46:13

and more and more you can and be more

46:15

More says very straight for on these important issues.

46:17

You know where they're going to vote based on

46:20

who they were nominated by And so that has

46:22

meant that. It. Is more explicit

46:24

is has been just a political arm

46:26

and they have no respect for sorry

46:28

to sizes They have no respect for

46:30

a bunch of things I think are

46:32

very important in order to have a

46:34

legitimate courts. I think we've already lost

46:36

a lot of things that are very

46:38

important and. Trying. To ban digit

46:40

and restore the courts honor when it's

46:43

in this position as and now almost

46:45

feels to me I and I I

46:47

take you play. Maybe that is why

46:49

for some progress as perhaps like me

46:51

it is a feature not about. I

46:53

almost would rather have people realize how

46:55

illegitimate is is then help it's legitimacy.

46:57

At a time when is doing things

46:59

like I don't know striking down Roe

47:01

V Wade which to me is it's

47:03

insane. I don't think. I think

47:06

that just cannot be understated. How.

47:08

Backwards and horrible. That is like just

47:11

definition only. Overturning Roe v Wade

47:13

to me makes it a legitimate is just

47:15

not something like dearth. It's not as though

47:17

if there is a five for conservative court

47:19

that. Made. Some decisions I don't

47:21

like that. I would say okay down

47:23

with this cordless. Just target is is

47:25

the extreme. Just. Seamlessness and depravity

47:28

of the strike or I think calls

47:30

for extreme measures. So I'm yet another

47:32

city, them is the first. Is I

47:34

them for anyone. Who. Wants to

47:36

have fully understand exactly what so problematic about

47:38

how the Crown court behaves items the book

47:41

is already play in line with that I

47:43

say to different conclusions away from that behavior

47:45

it than I think you do and not

47:47

as it should be. but like you know

47:49

the sort of. Whatever uses

47:51

the endgame is the first ep should

47:54

be a more comprehensive, holistic way of

47:56

talking about the court and understand the

47:58

court. Sure, it's Us and the letters

48:00

to put a sort of spicy procedural

48:03

point on dogs. The questions the court

48:05

agreed to decide and dogs had nothing

48:07

to do with overruling row in the

48:10

first place. So. How do we get

48:12

to a point where the court can actually

48:14

take up a case on one ground as

48:16

decided on a second? That's a story that people

48:18

don't know. a dollar standing around here. But.

48:20

The second point is that I actually added this is

48:23

where are you know I may have a profound that

48:25

agreement or I actually think. That. Dobbs.

48:27

Is a terrible decision but non

48:30

illegitimate one him and that's the

48:32

reason is because. When. The

48:34

supreme court is exercise him

48:36

authority. That both Congress and

48:38

the Constitution have given it. To

48:41

interpret the constitution. A

48:43

power I believe it has. The. Standard.

48:45

They interpret the constitution a way that

48:47

I find completely disgraceful. Doesn't. Make

48:49

a decision Illegitimate This wrong. versus.

48:52

The court exercise and power.

48:55

And act in ways that are not

48:57

what Congress in the constitution of authorized

48:59

versus the courts doing things that are

49:02

not judicial versus the court acting in

49:04

ways that are destructive of. The.

49:06

Sort of the constitution separation of powers and

49:09

that's where I think we crossed the line

49:11

from. Incredibly wrong.

49:13

Embarrassingly wrong. Stupid. To.

49:16

Lawless. And that's right off with them.

49:18

You could make a case that for as bad

49:20

as some of the course work on the merits

49:22

doc it has been in recent years cases like

49:24

Dogs and Bruin the dissented up. it's worse. Because.

49:27

At least And dogs and Bruin they write an opinion

49:29

for us all. The sit around and mock. right?

49:32

Over and all the sort of probably

49:34

talk about. Here's what's wrong. Here's why

49:36

the courts justifications don't hold up. Here's

49:38

why you should disagree with the court

49:40

was as acts. On. A shallow docket,

49:42

we got nothing the point two and nothing to

49:44

disagree with. Oh yeah, I've I mean,

49:46

I think I can agree with you there, and

49:49

of course one where the other. I'd highly recommend

49:51

people check out the shadow docket. I'm sure thats

49:53

it. Like you say, having an understanding of what's

49:55

going on is the way forward no matter what.

49:57

Regardless, so definitely recommend in the book and of

49:59

us. Include a link and everything in

50:01

the journal I guess where I'm coming from

50:04

and I do appreciate you Engaging to say

50:06

you know I'd My mind could certainly be

50:08

changed is I don't think the only thing

50:10

that makes someone illegitimate are quarter an institution

50:13

illegitimate is. Breaking. The

50:15

letter of the lie outside me. almost.

50:17

It's like like just following orders or

50:19

something as I think that there's like

50:21

for example, if somehow just as I

50:23

pathetically. The. Supreme Court tomorrow

50:26

just issued. Infinite Ruling that

50:28

reversed everything that it had already done. It's something

50:30

that has a right to do. You could probably

50:32

construct a way better hypothetical the next to you

50:34

know more about it. But like I guess the

50:36

point I'm getting at is. There. Has

50:39

to be a line at which even

50:41

though they're only doing things, they are

50:43

technically allowed to do. It. Becomes

50:45

illegitimate Don't you think? Do you think there could be

50:47

aligned there? I don't know where it would be for

50:49

you For me, would be something like insane like overturning

50:52

Roe V without be like. The. Insane. I

50:54

don't know. I thought of that hype cycle

50:56

that so insane will never happen. but our

50:58

overturning Roe V Wade would be that insane

51:00

to me where it would just completely spas

51:02

for the sarcasm undermined the hood, sit and

51:04

is the of the courts what he's got?

51:06

Line would be for you. Is there something

51:08

they could do or series of thing they

51:10

could do that even though they technically have

51:12

the power to do so is so out

51:14

of line that for you it would be

51:16

illegitimate? I think a pattern of over on

51:18

precedent as you suggest I think would be

51:20

I think deeply illegitimate. But the bus the

51:22

problem with dogs. Are a lot less are

51:24

not to send him this decision. I think it's

51:27

abominable and I think it's disgraceful. The.

51:29

Problem is is that it can't be

51:31

illegitimate just because it overrule the president.

51:34

Did. There has to be something about it

51:36

beyond it over rules row that if the

51:38

illegitimate Otherwise what you're saying is that it's

51:40

always illegitimate for the courts or will prior

51:43

precedents I know and we does not mean

51:45

with the with was be true if they

51:47

over ruled as a i don't know of

51:49

something. Any of the civil rights

51:52

kind of stuff I'd I'd on. Again, I'm not

51:54

the expert, but like I think there are things

51:56

that are so morally abhorrent if they overruled them.

51:59

Even though they have the right to then

52:01

the i think that's illegitimate, I think there

52:03

are lines of their lines of moral progress

52:05

that we have made as a society, and

52:07

the right to abortion is one of those

52:09

to me. And. That there are things

52:11

that they cannot cross. And not just because the

52:13

President. So a sudden was so

52:15

that is brown illegitimate for over on policy. Will

52:18

I? I don't know. I I I think

52:20

the point was. There. Are lines of moral

52:22

progress we've made? I think. Again, I

52:24

think I just said it's not about overruling

52:26

a President's it's about what that precedent is.

52:29

ripe. I guess what I say like of

52:31

his ego. Moral progress. These V like segregation

52:33

was made in the North to some degree,

52:35

but not comprehensively Before Brown at it certainly

52:37

wasn't in the South. Swiss? I'm not, I'm

52:39

not. I put you on the spot to

52:41

trying to say that I think this is

52:44

a hard and I think that one can

52:46

believe daughter's illegitimate one can believe dogs as

52:48

legitimate but incredibly wrong and wrongheaded. Sure, I

52:50

think the difference is actually mostly just a

52:52

matter of degree at that point. The question

52:54

is what makes the court legitimate in

52:57

the first place? And. It

52:59

seems to me that like the question

53:01

about the supreme court's legitimacy at least

53:03

starts with the course of billie to

53:05

explain itself. Not the persuade you that

53:07

there are right, but the persuade you

53:10

that like their ruling this way because

53:12

they're committed to some kind of principle,

53:14

right? Yeah, Maybe the principal you vehemently

53:16

disagree with, Maybe the principal huge Absolutely

53:18

discounts that the just have a right

53:20

to believe in. I guess I just

53:22

I dialed the held as long as

53:24

it's a principle that they're willing to

53:26

apply. In. Other cases in which

53:28

is implicated, That's what Article Three means

53:30

when it gives them the judicial power.

53:32

The United States. And. You.

53:35

Know that's what. What that's why we're

53:37

I'm fighting for is not to take

53:39

away that power, but rather to incentivize

53:41

the justices to exercise in a way

53:43

that has more accountable and responsible for

53:46

that. When you talk about this or

53:48

of the unpopularity of Dobbs, right And

53:50

when we talk about like the public

53:52

support for over says Wade that actually

53:55

registers more than a clearly did last

53:57

term. I think that might work

53:59

is we had any recourse, but. You

54:02

know we don't. We don't have any immediate

54:04

recourse. We may theoretically have some sort of

54:06

recourse when another just as dies or retires,

54:08

but even then then it goes from what

54:10

seven? Two to six three like. I think

54:12

that's good that it isn't about the court

54:15

solely as a function of who the justices

54:17

are, as opposed to thinking about the court

54:19

as an institution. That has an

54:21

institutional relationships that can be tightened, strength

54:23

and and used to raid the court

54:25

it near. Well. Yeah it

54:28

may just be a fundamental lack of mine said

54:30

disagreements I guess I the point that the going

54:32

down the road was. I would billie

54:34

just philosophically and again, I don't. I don't have

54:36

as much knowledge to bring up the specific cases

54:39

and examples but us I just would think philosophically.

54:41

There. Isn't a bright line between did they

54:44

do something they're technically allowed to do or

54:46

not and not would is what determines their

54:48

illegitimacy, or did they do something that so

54:50

abhorrence. They. Lost legitimacy because of that in

54:52

a way that I think I think it goes beyond

54:55

just are strict readings of rules of what they can

54:57

do. I mean a lot of what they've done with

54:59

the you know separation of church and state is just

55:01

so. It's. So mind blowingly counter

55:03

to what the founding principles even of our

55:05

country I I I don't know like I

55:07

feel like at a certain point you lose

55:09

legitimacy even though you're still technically playing by

55:12

the rules are is I guess at a

55:14

so I don't know that we was do

55:16

another hour on the side are loud odds

55:18

are gets like feel free Last word on

55:20

it we can that we can now move

55:22

on. Dot. I'll just say that

55:25

like I said, it has not been

55:27

true. For. Most of the courts

55:29

history. That. The court's decisions

55:31

have been guided by moral imperatives.

55:34

And has not been true for most the

55:36

courses Stories that the court has been a

55:38

force for social good. As. Contemporary

55:40

progress as would understand it. That.

55:42

In fact, it's actually entirely

55:44

aberrational. That. For. A.

55:46

Remarkable twenty year period from the been knighted

55:48

criticism and nineteen seventies the court play this

55:51

role in our society and and hadn't been

55:53

it was never choose what for that point

55:55

it hasn't been true since and so I

55:57

target for gonna tell does the holes. The

56:00

Supreme Court. It's. A story

56:02

that is much messier, an uglier

56:04

and more technical than saw. The

56:07

court was great until seven years

56:09

ago mans it's been all downhill

56:11

ever since greed area and then

56:14

the question is like why like

56:16

of what made that story complicated?

56:18

What are the pressures that sort

56:21

of pushed and pulled the core

56:23

different directions. And. You know,

56:25

again, I don't know that everyone could agree.

56:28

I I know everyone's not been agree on

56:30

what the cash out his for, what what

56:32

to do going forward. I. Just have

56:34

that we all at least ought to be on

56:36

the same page of stardom. From the proposition that

56:38

before we start. Really? Sort of

56:40

comprehensively diagnosed him. What's wrong with the

56:42

court today. We. Try to understand

56:45

every who Mccourt does. And

56:47

how we got to a point where the court

56:49

is doing all the things today that we find

56:51

so distasteful. Absolutely.

56:54

Do. You see anybody, I'm going down the road

56:56

that you would like to go down. Anybody in

56:58

Congress Is there any bills? anything? that's like kind

57:00

of doing the things are proposed doing the things

57:03

that that you wanna do along these lines. Are

57:05

you there's discussion? There's interest them his

57:08

job of in Twenty Twenty one Congress

57:10

held to hear him on reforming the

57:12

shadow docket. One of them was a

57:14

senate judiciary hear him right after as

57:16

be A that was. Entirely.

57:19

Co opted by sort of. The

57:21

public sniping over abortion but one was

57:23

a house here him. In February

57:26

Twenty one. Where. No one

57:28

was paying attention. and where there's

57:30

actually remarkable consensus among the members.

57:33

That. Some of the Supreme court's procedural behavior

57:35

was problematic. that there was a need for

57:37

reform that there was actually stuff Congress could

57:39

do that would not be perceived as an

57:41

attack on the court. As. Though,

57:43

you're.the less I took away from that

57:45

is that if you can suffer. Cowardice

57:48

is about reforming the court's docket,

57:50

reform the course institution from sort

57:52

of sage and who's on the

57:54

court and from you know sort

57:56

of mitigate the effects of particular

57:58

decisions. Maybe. You are. They can reach

58:00

across the aisle and how the conversation that

58:03

could result in productive legislation. but you gotta

58:05

sort of try it. before obesity, you gotta,

58:07

you gotta own to do it. And I

58:09

think part of the understandable problem. For.

58:12

Progressives is not want to give up the ghost

58:14

on all the other problems with the supreme court

58:16

to. Yeah.

58:18

Makes sense. Well see black. The Book is the

58:20

shadow doc at how the Supreme Court uses stealth

58:22

rulings to amass power and undermine the republic one

58:24

where the other. I know it is green. A

58:27

few things we both agree that people should read

58:29

your book. So from the thank you for governor

58:31

I appreciate the back and forth, the engagement and

58:33

ah yes thank you so much for taking the

58:35

time and com interface from.