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1:01

To me, the way we fix this problem

1:03

is we actually build a consensus,

1:06

a hopefully bipartisan consensus,

1:09

that the court as an institution is

1:11

healthier when it's part of a meaningful

1:14

interbranch dynamic and dialogue and not

1:16

when it is aloof to it. And that

1:18

an independent court doesn't mean an unaccountable

1:20

court, or else you're just going to see

1:23

more and more examples of the justices doing whatever

1:25

the heck they want, without regard to procedural

1:27

norms, to principles of transparency,

1:30

to even sort of broader concern about

1:32

their eroding legitimacy.

1:37

Hello and welcome to Why Is This Happening? With me, your

1:39

host, Chris Hayes.

1:47

Well, if you follow the news closely,

1:49

or even not that closely, or just, you

1:51

know, sort of osmotically get it beamed

1:53

across your ear holes as you're making

1:56

breakfast for your kids during NPR, something

1:58

that you hear a lot is...

1:59

is about a judge

2:02

somewhere or a panel of judges or

2:04

sometimes a Supreme Court issuing

2:07

a ruling that does something immediately

2:10

or stops something from happening immediately

2:12

or sometimes implements some whole

2:14

new policy. This is particularly true in immigration

2:17

recently. And I honestly, I've been

2:19

following this very closely and I'm utterly

2:21

confused by it. Like it'll be like this federal judge says

2:24

that title 42 has to go into effect,

2:26

has to stay in effect. And then it'll be like another

2:29

federal judge and the judge says title 42 can't go

2:31

into effect. And it's like, wait

2:33

a second, aren't those contradictory? Also,

2:35

why does these individual judges, why are they

2:38

making immigration policy for the entire country?

2:40

Like how did this happen and who's gonna

2:42

resolve this? And then you'll hear

2:44

the Supreme Court declined to block

2:47

an appellate court's stay of

2:49

a district court's ruling of a

2:51

temporary restraining order on an injunction

2:53

on Mifibrestone. And I'm like, whoa, whoa, whoa,

2:55

wait, I feel like I'm back in logic class and undergraduate.

2:58

I'm like, not, not, not, not,

3:00

not P

3:01

is okay. So the knots line up.

3:03

So then we're back, okay, we're back to P. So

3:06

there is a tremendous, and if you feel

3:08

like there's a lot of this, and if you feel like the

3:11

amount of sort of emergency judicial

3:14

rulings of matters of great import,

3:16

Mifibrestone being an incredible one, right? That the,

3:19

you have a federal judge in Texas who says,

3:21

I've given you a week and after that, we're taking Mifibrestone

3:24

off the shelf nationwide. You're like, whoa,

3:26

what? Okay, wait, no, why? And

3:28

then the appellate court comes in before then they say,

3:31

sort of, we're not gonna

3:33

take all of it, but we're gonna get rid of the

3:35

telemedicine prescription of it. And

3:38

that starts in a few days. The Supreme Court says, actually,

3:40

we're gonna go back to the status quo ex ante. And

3:43

in each part of those, you're like, wait, who, where?

3:45

I don't even know where I am on the board game.

3:48

Like, who is saying what to

3:50

whom about what? Did this ever, stuff ever get argued?

3:53

Like, what is going on? So I, if

3:55

you follow the news, you're,

3:57

I think, bedeviled often by

3:59

this feeling.

3:59

of like which judge is saying what

4:02

to whom in what time frame and how

4:04

does that go to the next person. And we just

4:06

so happen today to have like the foremost

4:08

expert on exactly this. There's

4:11

a law professor named Steve Vladek. He's the

4:13

Charles Allen Wright Chair in Federal Courts

4:15

at the University of Texas School of Law. He's

4:17

also got a new book, which is about what has been

4:19

his academic focus for

4:21

a good long while now. It's called The Shadow

4:24

Docket, how the Supreme Court uses

4:26

stealth rulings to amass power and undermine

4:28

the Republic. And it's about

4:31

what happens when these cases, the Mipha Pristone

4:33

case being a perfect example, some of the Title 42 stuff,

4:36

what happens when these cases go up

4:38

this parallel form

4:41

of appeals, this sort of parallel

4:44

system of jurisprudence and

4:46

ends up in what has been dubbed. And I think

4:48

maybe Steve Vladek called it that. We're

4:51

gonna find out in a second. The Shadow Docket and

4:54

why understanding this burgeoning

4:56

parallel track of law is so

4:58

important to understanding so many of the stories

5:01

we encounter today. It's my great pleasure to

5:03

have Professor Vladek on the program, welcome. Thanks Chris,

5:05

great to be with you.

5:06

So here's what we're gonna do here.

5:12

You're

5:14

gonna be, I've scooped my wife's

5:17

podcast on you. So you're gonna be on Strict Scrutiny, which

5:19

is my wife's podcast. And they're

5:21

gonna do like the 301 version

5:23

of your book that you would do with 3Ls. We're gonna

5:25

do like first semester of

5:28

Civ Pro here. Bring it. Because I honestly

5:30

think most people even very, very educated,

5:33

erudite, well-read people

5:34

don't actually understand the basic mechanics

5:37

of how a case gets through the federal courts.

5:40

So I wanna just start with the normal

5:42

process because I think to the extent that we could say what

5:45

the normal process is and sort of should be

5:47

in a normative sense, although we can argue about

5:49

whether that's the case, I don't have strong feelings. Then

5:52

we can spin out what has developed

5:54

in this what you call shadow docket and why that's

5:56

so different. And let's just start with like,

5:58

I don't know, you choose an example. the kind

6:00

of civil lawsuit someone might

6:03

file in a district court, which is the lowest

6:05

level, and how if that was an

6:07

interesting, maybe somewhat controversial

6:10

unsettled statutory constitutional grounds, how

6:12

that might work its way up the ladder

6:14

of federal courts. Yes, I mean, the Supreme Court has a case,

6:17

this term actually, it's a big deal case called 303 Creative

6:20

about whether a website designer in Colorado

6:22

can refuse to create websites for same-sex

6:25

weddings. Chris, that case has been going for

6:27

seven years, right? That case took

6:29

seven years from when it was originally filed. Wow. It

6:31

went all the way through the lower courts, first

6:33

through the trial court to a final

6:36

judgment, then an appeal to an intermediate

6:38

appeals court to a judgment, and

6:40

then and only then to the Supreme Court,

6:43

where the process is actually itself

6:45

usually a laborious one, where first you

6:47

ask the justices to take up your case. And

6:50

if and only if they say yes, because they have discretion

6:52

over most of their docket, then maybe six,

6:55

eight, 10 months later, they hold our argument.

6:57

And then maybe six months after that, they hand out an opinion.

7:00

So, right, the normal case takes

7:02

years. And those years

7:03

matter, because one of the things that happens during

7:05

those years is the factual record is developed,

7:08

all of the legal arguments are sharpened and crystallized,

7:11

so that the Supreme Court really gets to get

7:13

the cleanest, neatest, right

7:16

vehicle by the time it actually gets to the justices.

7:18

So when let's just, I'm going to go even

7:20

more basic, because I think even like trial court, appellate court,

7:23

Supreme Court is a little unfamiliar to people. So obviously

7:25

not the lawyers who are listening to this podcast. But so

7:27

when you say, you know, you file this lawsuit,

7:30

and you get assigned to a federal district judge,

7:32

that's the trial court, that's the first,

7:33

that's the sort of quarter first impression in federal

7:36

cases, it's you're going to get a judge, and

7:38

you're going to have a civil trial

7:41

or arguments over whether this

7:43

violated your rights, you know, but

7:45

by being forced. I mean, again,

7:48

this is a little bit of a weird case, because the person at issue

7:50

doesn't even have an active graphic design business.

7:52

It's sort of a theoretical hypothetical that

7:54

in the future they may be compelled to design

7:57

gay websites, which they don't like.

7:59

Putting that aside, there's an actual

8:02

judge there, right? They get assigned your case.

8:04

And what does that first judge do? So

8:06

the job of the trial judge, and this is true in both

8:09

state and federal courts, is to decide

8:11

what the lawsuit even is, is to figure out

8:14

whether the plaintiffs have any kind of a claim. And

8:16

Chris, as you know, that involves both legal

8:18

and factual questions. So, you

8:20

know, I'm suing someone over a car crash,

8:23

right? Well, there might be a factual question. Was

8:25

the light actually red when the car went through

8:27

the light? There might be a legal question, what

8:29

duty of care did I owe to the other

8:32

drivers? That's all for the trial

8:34

court in the first instance. And the idea is

8:36

that all of trial litigation is structured

8:39

to resolve these questions in the most efficient

8:41

order. So the first thing we do

8:43

is we ask, if we assume everything the plaintiff

8:46

says is true, does the law

8:48

support their claim? Because if they can't even win,

8:50

if the facts are as they say they are, then the

8:52

case goes away. Right. And there's nothing there. Correct. And

8:55

if the plaintiff does win, if we assume

8:57

all the facts are the way they are, then we have to figure

8:59

out if the facts are the way they are. Right. And that usually

9:02

means what we call discovery, right? Where the

9:04

parties take evidence from each other, depositions.

9:07

And then and only then if there's still what we

9:10

call a material question of fact, right?

9:12

Where we go to trial. But this is all a painstaking

9:15

process that takes months, if not

9:17

years. And that sharpens everything

9:19

so that when you go up to the appeals court, when whoever

9:22

loses says, Hey, something happened

9:24

below that shouldn't have happened.

9:25

Right. There's now a complete well

9:28

developed record for the appellate

9:30

judges to look at. And again, I know this is like

9:32

we're doing again for the people that went through law score

9:34

lawyers, this is slightly excruciating. Maybe you

9:37

can fast forward. But for those who didn't, I do think that just this

9:39

concept, which it took me a long time as a non-lord,

9:41

appreciate of just like the facts and the laws,

9:43

these separate entities, and particularly developing a factual

9:45

record, right? That like what the trial court is doing

9:48

is like, what were the facts of the matter at issue

9:50

with respect? So like, for instance, in

9:52

the in 303 creative, right? If the person

9:55

actually lived

9:55

in Maine this whole time, right? Like they

9:58

wouldn't be able to file there. So

10:00

if it turned out that like actually you've been living in Maine,

10:03

you don't even live in, I think it was Colorado was filed,

10:05

I forget where. Or she doesn't actually own

10:07

a website design company. Exactly, right? So,

10:09

or in the case of the car crash, like was the

10:12

light red or not? It's basically like what

10:14

the trial court is doing is like through this

10:16

discovery, through deposition, through even

10:18

the trial, right? If there's a trial, it's

10:21

establishing basically like the set

10:23

of facts that is the state of the world, right?

10:25

The facts of the matter. These facts pertain

10:27

here, the light was red. They did

10:30

run through the red light. The person does reside

10:32

in this state. And nailing all that

10:35

stuff down as a journalist, I know is hard work.

10:37

And that's what that first court, that's a big

10:39

part of what that first court is doing. All that's exactly

10:41

right. And part of why that matters is because

10:44

the Supreme Court likes to say over and over

10:46

again, that we are a court of

10:48

review, not first view. This is

10:50

a mantra they use all the time. And

10:52

what's really animating that is the idea that

10:55

they should not be resolving hypothetical

10:57

questions, right? That we only want

11:00

the Supreme Court, even all appellate courts, to

11:02

actually be resolving questions that are relevant

11:05

to the dispute. You need those issues.

11:07

You need the factual record developed. You need the legal issues

11:09

crystallized before you can be sure what

11:11

does and doesn't matter.

11:12

So if you lose at that first court,

11:15

right? And they say, no, your rights

11:18

aren't violated by having to, by

11:20

this law that requires you to

11:22

design websites for everyone. Or yes,

11:25

you are liable for the damages because you

11:27

ran a red light. You can then

11:29

appeal to the next court up, which is the appeals

11:32

court. Sometimes we call those circuit courts.

11:34

They're interchangeable appellate courts, circuit courts. There

11:37

are 13 of those and they oversee

11:39

regions, groups of states broadly

11:42

geographically contiguous. And what

11:44

happens there? So the appellate

11:46

court's job is basically to decide

11:48

whether the legal analysis was

11:51

correct. Usually the appellate court will review

11:53

the legal analysis of the trial

11:55

court, what we call de novo. Without

11:58

any deference to the trial.

11:59

trial courts, legal analysis. And maybe,

12:02

Chris, if there are serious questions about

12:04

the facts, the appellate court can

12:06

decide that a district court clearly

12:09

erred in certain factual findings, but

12:11

that review is highly deferential. The idea

12:13

is that the trial judge is much closer

12:15

to the facts and the principal function

12:17

of the appellate court is to just make sure that

12:20

everyone got the legal questions correct. Right,

12:22

so if, again, we're just gonna stay with this metaphor,

12:24

and I'm sorry if I'm belaboring this, but I actually think this is so

12:27

useful. So if the trial

12:29

court says

12:29

like the light was red, we've got witnesses and we've

12:32

got a video recording, the

12:34

light was red when you ran it, you can appeal and

12:36

say the light was red, but the

12:38

liability standard was misinterpreted

12:41

by the court. And actually the liability standard

12:43

isn't, did I run a red

12:45

light? It's like, did I intend to harm someone? I'm

12:47

just making this up, right? But you can't go

12:50

to the appellate court and be like the light was green,

12:52

basically, right? Like that's not, you can't appeal

12:54

on that. Like that has been decided,

12:56

presumably at that level of the first trial.

12:58

Right, I mean, that's right. If I can take this one

13:01

step further, I mean, the one thing you can say

13:03

is that the evidence on which the

13:05

district court relied and concluding that the light was red

13:08

was all clearly wrong, right? That basically

13:11

the video tape actually doesn't say what

13:13

the district court said it did, the witnesses didn't say what

13:15

the district court said they did, but yes, I mean, the norm

13:19

in American civil and

13:21

even criminal litigation is that appellate

13:23

courts don't disturb actual findings by trial

13:25

courts. So then the appellate

13:26

court is gonna look at the legal analysis

13:29

used by the judge beneath them. And

13:31

they are going to say either that

13:33

legal analysis was correct

13:37

and your appeal fails, or there

13:39

was something not kosher

13:41

here

13:42

and the appeal succeeds. And

13:44

the law that they use to apply

13:46

is what? Like how do

13:49

they decide that? Well, so I mean, it depends on the case,

13:51

right? So there are a couple of sources

13:54

for law, right? So there could be statutes.

13:56

So if it's Texas, for example, whether the Texas

13:59

legislature has specific.

13:59

specifically written down rules

14:02

to govern car crashes. And if the Texas

14:04

legislature hasn't written down the relevant rules,

14:07

we have what's called the common law, which is basically

14:09

where Texas state courts interpret

14:12

in Texas law will fashion a series

14:14

of principles where the decisions, the

14:16

judicial decisions are the source of these principles.

14:19

And so we apply those principles. Maybe

14:21

in a rare case, Congress has spoken and there's

14:23

a federal statute on point, right? Maybe

14:25

there's a federal constitutional

14:27

question on point. Maybe the Supreme Court has

14:29

interpreted a federal statute or the federal constitution.

14:32

So, the sort of the sources of law

14:35

are basically what the appellate courts are looking to to

14:37

decide whether the trial court's legal

14:39

analysis was correct. And this is where

14:42

like precedent, body, you know, it's like, yeah,

14:45

we got a lot of car crashes. Like for most things

14:47

that happen, right? In the law, like a lot

14:50

of it has happened before, some versions happened before, you

14:52

go and look what has happened before and how

14:55

statutes have been interpreted and how

14:57

these things have played out and what controlling

14:59

precedent

14:59

by the Supreme Court that has gotten like a particularly interesting

15:02

or novel version of this. And they've said, actually in this case,

15:04

this is how you read the law or this is what you do. And

15:07

you're supposed to apply that.

15:08

Now you've got one more, if you lose

15:10

there, you've got one more shot, which is to go

15:12

up the Supreme Court. Right, and in almost every case,

15:15

right? The Supreme Court does not have to take your

15:17

appeal. So in the federal system, when

15:19

you lose in the trial court, you usually have what we

15:21

call an appeal as of right, meaning

15:24

you are entitled. You get your day, you get

15:26

your day before the appeal. Correct. There's

15:28

no similar mechanism for 99 plus percent of

15:32

appeals from the intermediate federal appeals court

15:34

to the Supreme Court. Almost all of the Supreme

15:37

Court. Unless the states have a beef over like who's

15:39

water, who's taking who's water, right?

15:41

And certain campaign finance and redistricting

15:43

cases. But the typical federal

15:46

appeal is one that the Supreme Court

15:48

has unfettered discretion

15:50

either to take or not take through what we call

15:52

a writ of certiorari, basically

15:54

in Latin, right? To sort of bring up the record

15:57

from the lower court. And 99% of the time they

15:59

do.

15:59

they don't take those cases.

16:01

And when they do, they tend to take

16:04

them because there's some novel question

16:06

presented or there's what's called a circuit split,

16:08

which is two of the different appeals

16:10

courts have had similar cases and come

16:12

down on different sides. So there's

16:15

ambiguity in national federal law about

16:17

which of those circuits are correct. And if there's a circuit split,

16:20

the only people that could resolve it at the Supreme Court. So

16:22

that's a big reason they'll take a case. Then

16:25

this is the sort of normal process. To go back to 303 Creative,

16:28

the wheels of justice grind slow, but

16:30

very fine. That took seven years

16:33

to go through all of this,

16:35

to get all the way up to the Supreme Court.

16:37

And that's not atypical

16:39

for a Supreme Court case in those

16:41

sorts of time ranges. That's exactly right. I

16:43

only have an anecdotal sense of this, but I think probably

16:47

somewhere between three to seven years, at least

16:49

until recently, was the

16:51

median time from beginning of lawsuit to

16:55

final Supreme Court decision. Now, let

16:57

me start. We're about

16:59

to go to what the sort of alternate means

17:02

now that we've established this. But

17:04

one argument I think you can make about that is maybe

17:06

that's too long. It does

17:09

often seem, and I have to say, in

17:11

covering the Trump years particularly, and particularly

17:14

legal issues around Donald Trump, which have often taken

17:16

a very long time to resolve, I

17:19

was even sort of chuckling for myself

17:21

because right around when the Alvin Bragg indictment

17:23

came down for an alleged crime that happened

17:25

in 2016, there was the Gwyneth Paltrow

17:28

civil trial about a skiing injury

17:30

that also happened in 2016. So this

17:32

took seven years to get to trial.

17:34

And I was sort of thinking to myself, like, that's a really long

17:36

time. And I'm watching these witnesses in the Gwyneth Paltrow

17:38

trial and thinking, does anyone remember

17:40

what they actually saw on the ski slope seven

17:43

years later? Like, this all just seems like it. So I

17:45

guess what I'm asking you is defend

17:47

this ponderous

17:50

process whereby all this stuff

17:52

takes so long. I'm not sure I want to. So

17:55

I think that two things are true, right? One is that

17:58

process is good in the...

17:59

that process allows everyone

18:02

an opportunity to be heard. Process allows for

18:04

reasoned deliberation. Process allows

18:07

judges to make, you know, the most

18:09

sort of well-put-together, well-thought-out

18:11

decisions they can. I think, Chris,

18:13

we're all gonna be better at making big decisions

18:15

when we have some time to think about it, and then when

18:17

we're doing it on the cuff, or off the cuff as

18:19

the case may be. So, you know, I think

18:22

the first thing to say is, like, in general, I think

18:24

process tends to produce, or at least we

18:26

assume that process tends to produce better decisions.

18:29

And the second thing

18:29

to say is, but,

18:31

right, if there are sort of structural defects

18:34

in how long some of this stuff is taken, and

18:36

I think there probably are, you know, if only

18:38

there was a policy-making body that had

18:40

the ability to speed up some of these things, and

18:42

it had the ability to sort of compress schedules

18:45

and to provide for more judges so

18:47

that judges could work faster and could schedule

18:49

things more quickly. I mean, I think one of the

18:52

stories of the book is

18:54

that the shadow docket is, in some respects, symptoms

18:56

of broader diseases. Right, right.

18:59

And it's a symptom, but it's

19:01

not a solution, as I know we're gonna talk about,

19:03

right? Because instead of sort

19:05

of clamoring for a better way of getting

19:08

these cases to the Supreme Court faster, but

19:10

still with full-throated review, right, now

19:13

we have the justices jumping in very,

19:15

very early in the litigation before

19:17

any of that stuff has happened, and basically,

19:19

you know, sort of doing things that

19:21

we usually think they only do at the far end of the process,

19:24

in a context in which they haven't had all of

19:26

the benefits of having these cases

19:29

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19:31

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20:43

So in the final culmination

20:46

of the normal process, right? When

20:49

we've gone through these three levels, the trial court,

20:52

the appellate court, and the Supreme Court, let's say it's gone all the way up to the

20:54

Supreme Court, they then deliberate, they have conference,

20:56

they then issue a written opinion.

20:58

The written opinion will have, if it's unanimous,

21:00

it will be unanimous, but if it's not, there's

21:02

a majority opinion and dissent. Sometimes there are several

21:05

dissents, sometimes several justices come

21:07

together for certain parts, can get very complicated,

21:09

but they're ultimately, what

21:11

ends up happening are written arguments and

21:13

reasons about why individual

21:16

justices or a majority of the justices or a collection

21:18

of the justices think that

21:20

party A or party B prevails

21:22

on the major questions presented.

21:24

That's the resolution of the normal process. And

21:26

the reason for that, I mean, I think we should say, the reason

21:28

why we want the justices to write something

21:31

is because, at least in part, they're

21:34

not just deciding every single case that

21:36

comes to them, they're only deciding a handful of these cases. Also,

21:38

where are we if they don't write anything? What

21:41

the hell do we know about? But this is the point, right, Chris?

21:43

Which is that we might not

21:45

be bothered if lower court

21:47

judges write less because their decisions

21:50

aren't affecting as many people, they're not having as much

21:52

of an impact. The reason why

21:54

we expect the justices to write is

21:57

because everyone understands that

21:59

these opinions.

21:59

are not just resolving the individual

22:02

dispute between the two parties before the Supreme Court.

22:04

These opinions are actually resolving questions

22:07

of national importance with broad

22:09

legal and policy ramifications. So

22:11

now we get to the shadow docket and the alternate

22:13

means by getting something quickly.

22:16

And there's a few different ways this

22:18

could happen. And maybe I'll just sort of let you talk me

22:20

through. I mean, one is there's

22:22

like emergency and non-emergency, right, but

22:25

what is the shadow docket and how does it differ

22:27

from the process that we've just

22:29

described? So the shadow docket itself is

22:31

an umbrella term that actually will bode when

22:34

the University of Chicago coined in 2015 to

22:36

talk about the Supreme Court. Will actually

22:38

meant, Chris, all of the court's unsigned

22:40

orders, right? So will meant to include the

22:43

unsigned orders that grant or deny certiorari,

22:46

the discretionary appellate review. But

22:48

I think that the sort of contrast between

22:50

what we've been discussing is the emergency

22:52

side. And so let's take a different case, right?

22:54

Let's take the mifapristone case, where

22:56

at the very beginning of the litigation,

22:58

like the first ruling from the trial judge

23:02

is, I mean, Casmarik calls it a stay,

23:04

but it's basically a, what we call preliminary

23:06

injunction, which is a compulsive,

23:09

coercive judicial order, compelling

23:12

or barring the defendant from

23:14

taking the specified action. So in this

23:17

case, right, Casmarik's order was an order to the

23:19

FDA that basically would have revoked

23:22

the approval of mifapristone and

23:24

would have had, of course, all of these amazing, I mean,

23:26

like remarkable, catastrophic, right, downstream

23:28

consequences. Wait, let me stop you right there.

23:30

Did that order come, was there a full trial?

23:33

How did they like get the factual record there? Because

23:36

the factual record itself, when I read the decision, seemed dodgy

23:39

at best. So like what level of process was there

23:41

even to get to that order? I mean, so the short version

23:43

is, this is basically all based upon the declarations

23:47

that the plaintiff submitted. So declarations

23:49

submitted under penalty of perjury. That's wild. Right, I mean,

23:52

submitted under penalty of perjury, but that have not been cross-examined,

23:54

that have not been subjected to discovery, et cetera.

23:56

Yes, it's just people

23:59

attesting to things. Correct.

24:00

which of course is kind of important, the Mepristone

24:02

case, because you have all these doctors attesting to injuries

24:05

that are, you know, I would argue, hypothetical

24:07

at best. Here's where things get tricky, right?

24:09

So Kaczmarek issues a ruling that

24:11

he stayed, right? He

24:13

paused, he hit the pause button, says my ruling is

24:15

not gonna go into effect for seven days, but

24:18

only seven days, which means that, you

24:20

know, at the end of seven days, seven days after his ruling,

24:23

had nothing else happened, you

24:25

would have had an interim, a very

24:27

early in the case ruling, that would

24:29

have had this

24:30

massive nationwide

24:32

societal impact. I just wanna stop for

24:34

a second, because as we go through this, like compare

24:37

the seven years

24:38

to get from Gwyneth Paltrow knocking

24:41

into someone, or not knocking into someone on a ski slope,

24:43

to a civil trial over whether she did or did

24:45

not, right? Seven years, that's

24:47

just a civil trial. They wouldn't even go through an appellate process

24:49

or anything, right? Or the seven years from 303 creative,

24:52

you know, the person filing a lawsuit to the Supreme Court. Now

24:55

we've got this thing. It's been on the market

24:57

for 23 years, okay? You've

24:59

got two filings in front

25:01

of a judge, and a few months of him

25:03

reviewing them, and arguments in front of

25:05

him, no trial, no cross-examination,

25:08

no depositions

25:08

and no discovery. And

25:10

then he issues a ruling and says, after a few

25:13

months, in seven days, all

25:15

of the nation's mephibris stones getting taken off the

25:17

shelves. Talk about the opposite. It's

25:19

like, compare that level of process

25:22

and the stakes to the Gwyneth Paltrow

25:25

civil trial of

25:26

like, whether she knocked the guy down on the ski

25:28

slope to seven years till you get to trial.

25:30

And this is whether you will be able to take a drug

25:33

that's been on the shelves for 23 years, and it's like a few arguments

25:35

and a few filings.

25:36

So, I mean, I guess the short

25:38

thing to say is yes, but the

25:40

critical point, Chris, is that the mythopristone

25:42

case in that respect is not actually an outlier

25:45

compared to what we've seen lately. I mean, look at the Biden

25:48

student loan cases. Look at the Title 42

25:51

litigation, right? Look at the US versus Texas, a case

25:53

the court has this term about the Biden administration's

25:56

immigration enforcement priorities. One

25:58

of the things that has helped to catalyze.

26:00

you know, the sort of the visibility of the shadow docket,

26:02

not the shadow docket itself, is that

26:04

we are now seeing so often these

26:08

very early in litigation rulings

26:10

from trial judges with these massive

26:12

potential, right? Immediate practical impact.

26:15

Right, so they, it's a trial judge issuing

26:17

essentially a preliminary ruling that

26:20

has enormous consequences for

26:22

the whole, in some cases the whole nation. And then

26:24

because of the enormous consequences and because they

26:26

light a fuse on a timer, like seven days,

26:29

and we're gonna take all the, order FDA to take metropressin

26:31

out of the shelves, then you've gotta get it

26:33

up through the appellate system super fast, right? And so

26:35

this is where we get to the idea of emergency

26:37

relief. So emergency relief is

26:40

not meant to be the conclusive

26:42

resolution of the appeal, right? The idea

26:44

is that like, things are happening too quickly

26:46

to actually give the full monty, to do

26:49

the full process,

26:50

right? Rather emergency relief is a

26:52

temp, what's supposed to be, this is one of the problems,

26:54

but what's supposed to be a temporary stopgap.

26:58

We, the appellate court are hitting the brakes, we're

27:00

pausing your ruling while

27:02

we consider what to do with it, right? While we take

27:05

the time to give it at least some modicum of normal

27:07

appellate process. And that's what a stay

27:10

is, a stay pending appeal is

27:12

basically the appellate court saying, slow

27:15

down trial court, like we need some

27:17

time to figure out whether we're gonna let your rule and go

27:19

into effect. And that's what

27:21

we, the nerd lawyers call an emergency application.

27:24

Then the emergency application, right? Then

27:26

that can get appealed to the Supreme Court. Right,

27:28

and so let's play out Mifepristone again. So

27:30

in the Mifepristone case, right? Both

27:33

the FDA and Danco Laboratories,

27:35

one of Mifepristone's two domestic

27:37

sponsors. First, they go to the Court of

27:40

Appeals, the Fifth Circuit, and they ask the Fifth

27:42

Circuit for a stay of Judge Kazmarek's ruling.

27:45

And the Fifth Circuit does this really bizarre sort

27:47

of partial stay, but mostly non-stay

27:50

of Kazmarek's ruling, which means the big

27:52

parts are still gonna go into effect at midnight

27:54

on Friday night. So then they go to the Supreme

27:56

Court and they're not technically, I mean,

27:58

of course, I'm being a little bit pedantic. not technically

28:00

appealing the Fifth Circuit ruling at that point.

28:03

Now they're asking the Supreme Court for the same relief. They're

28:05

asking the Supreme Court for a stay of

28:07

Casmarix ruling pending appeal.

28:10

And this is not the sum total of the shadow

28:12

docket, but that

28:13

rough fact pattern is what has

28:16

become so de rigueur. Has what has become

28:18

such a common staple of the

28:20

Supreme Court's emergency docket

28:23

of procedural orders of the whole melange. And

28:25

now here's where the sort of real, this sort of

28:27

transparency and secrecy question really comes

28:29

into play when you talk about the shadow docket,

28:32

right? And Will Bowdoin's coinage of it. Let's

28:34

imagine this is not what happened. But

28:36

were we to imagine that the Supreme Court simply

28:38

refused to stay Casmarix

28:41

ruling, they

28:42

could have just issued that. With

28:45

no explanation. And said, with nothing.

28:48

No, sorry, we're not taking it. Now

28:50

what that would mean is functionally, American

28:53

women and folks who get pregnant across the country

28:55

would no longer have access to Mephistone from

28:57

one day to the next with literally

28:59

zero articulation justification

29:02

from the highest court in the life. So Chris changed Mephistone

29:04

to abortion and you've just described SB8. Right.

29:07

Right. And you've just described the Supreme Court's

29:09

refusal to intervene in September of 2021 to

29:12

stop Texas's six week abortion ban

29:14

from going into effect. And their bounty system. That's

29:17

right. And the SB8 ruling, I mean, to be fair to it, it

29:19

had

29:19

a paragraph of explanation, but it

29:21

was not exactly a thorough or persuasive

29:24

paragraph. But this is, I mean, Chris, this

29:26

is the problem. And so this is what

29:28

impelled me to write the book, which is that,

29:31

you know, I think as often

29:33

as this is happening, and with the stakes

29:35

when it's happening, the fact that we

29:37

don't take the time as we're doing right now

29:40

to actually lay all of this out to

29:42

people who

29:43

care people who want to

29:45

understand, but also people who

29:47

won't necessarily be able to tell what

29:50

it is when the Supreme Court says, you know, the application

29:52

for a stay is granted. Right. The

29:54

whole point of the book is to basically try to make

29:56

this all accessible to all

29:58

of

31:10

about

32:00

whether someone that's also reflecting a shift in lower

32:03

court behavior. But of course, if

32:05

it's a shift in lower court behavior, the Supreme Court has

32:07

ways of dealing with that and has ways of sort

32:09

of slapping down the lower courts. And

32:12

one of the most exasperating things that I found

32:14

and that really sort of said to me, there's a book here, is

32:17

that all of the sort of principled

32:20

ways the Supreme Court could have responded if that was

32:22

really the explanation, aren't happening

32:24

because the court won't explain itself. And so

32:26

starting in 2017, we see two

32:28

things happening at once. We see the court intervening

32:31

in emergency applications much more often

32:34

and in context, Chris, that have much broader

32:36

effects, right? So historically, this

32:38

was principally about the death penalty. You

32:40

ask folks like Kate who clerked

32:43

on the court in the 1980s and 1990s, 2000s, they'll

32:46

say what they remember about emergency applications is

32:48

the death penalty, right? The

32:51

shift in the mid 2010s is to immigration

32:54

policy and abortion policy

32:56

and congressional districts, right? It means

32:59

to sort of everything.

33:00

And, right, Chris, while they're preserving

33:03

the norm of not explaining the orders and

33:05

not providing rationales and doing it at all

33:07

times of night, right? So it's the qualitative

33:10

shift in the mid 2010s that I think is really

33:12

the culprit. And we should note that like, actually,

33:14

Kate's termed that there was actually a nationwide

33:16

state. There was a pending case before the Supreme Court about

33:19

the constitutionality of the death penalty. She was actually spared

33:22

that very, very grisly and macabre

33:24

work, which clerks do, which is dealing with these

33:26

emergency appeals. Obviously in the case of the death

33:28

penalty cases,

33:29

there you've got an example where the

33:32

time being of the essence is just clear

33:34

on its face. The person is scheduled to be executed

33:36

at this time and this date,

33:38

whatever is gonna be resolved legally has to happen before

33:40

then. With the other stuff, it's not as clear

33:43

like what is going on

33:45

now, some cases you could say, I think,

33:47

in the Trump administration, the travel ban being an example

33:50

where

33:50

the executive has acted in these ways

33:54

that have created, essentially created

33:56

emergencies, right? They've created a set of

33:58

facts on the ground that have to be dealt with.

33:59

with at the moment. In the case of the first travel ban, it's people

34:02

are being turned back at airports. People

34:04

with green cards. Yeah, people with green cards. I mean, there's

34:06

all sorts of craziness happening, in

34:09

the moment you have to go and seek emergency

34:11

relief. But in some of the other cases, it's just

34:13

not clear why that fuse exists.

34:15

So this is probably getting a little bit too far into the weeds

34:18

and you can pull me back in a second. But I think one of the

34:20

legal shifts that happens that

34:23

explains the numbers is

34:25

that it's right about this time that the

34:27

court starts accepting an argument that

34:29

it never

34:29

had before, which is that anytime

34:32

a government is enjoined, is blocked

34:35

from carrying out one of its policies, it suffers

34:37

not just harm, Chris, but irreparable harm.

34:40

That is to say, harm that requires

34:42

immediate relief as opposed to just eventual

34:45

relief. That had never been

34:47

a sort

34:47

of a consensus view

34:50

on the Supreme Court until the middle of the last

34:52

decade. So when Trump goes into court,

34:54

he says, listen, I may win on the merits in this case.

34:57

I may not win on the merits in this case, but

34:59

I'm being stopped from carrying out my immigration

35:01

policy. You should let me carry it out until

35:03

you decide if I'm gonna win or not, right? And

35:05

this notion of irreparable harm is the standard

35:08

for emergency relief, right? It's not just that

35:10

you have some harm, it's that the

35:12

harm that will accrue in the time the emergency

35:14

relief is not granted can never be sort

35:16

of clawed back to irreparable. What is the

35:19

justification for having

35:20

the appellate court intervene now

35:22

as opposed to just waiting for you to come up through the normal

35:25

channels of appeal? There has to be some

35:27

reason why waiting for the normal

35:29

appeal. Over and above. That's right, exactly right,

35:31

you got it. So this irreparable harm argument, I

35:33

mean, there's a few things going on. So let's start with

35:35

this. One is the notion of nationwide injunction.

35:38

This is interesting because I think this cuts across in sort of

35:40

interesting ideological direction. So we'll

35:43

go back to Mepha Pristone, right? In the case of

35:45

Kesmariak, you've got a district judge. His jurisdiction

35:48

is small compared to the United States as a whole.

35:50

He's the one judge in Amarillo, Texas, because

35:53

as I've covered on the show and I think spoken on the podcast, because

35:55

he's a obviously right-wing

35:57

true believer, if you are a right-wing.

36:00

true believer and want to find a favorable judge, you

36:02

can get in your car and drive to Amarillo, Texas. And

36:04

if you've got plaintiffs

36:06

plausibly who live there, which is what they essentially

36:09

created from the Mifapristone case, you know

36:11

who you're going to get, right? There's no question.

36:13

It's not going to be a lottery. It's like, I'm getting kesemir.

36:17

Then that guy in Amarillo, population,

36:19

I think about 200,000 people, can issue

36:22

an injunction for the entire country

36:24

saying no one gets to have access to Mifapristone.

36:27

Now,

36:27

I view this because of its ideological valence

36:30

and because of my substantive commitments on reproductive rights

36:32

as outrageous. However,

36:34

during Trump, there were

36:36

district judges in California or in

36:38

Brooklyn. I was outside the Brooklyn courthouse in the Eastern

36:40

district of New York the night that

36:42

they nationally enjoined the travel ban,

36:45

in which very similar to what Kesemir was doing,

36:48

a single judge in a single jurisdiction in

36:50

downtown Brooklyn with,

36:52

you know, the ambit of humans that he has

36:55

in his circle says, or she,

36:57

the whole nation, this is blocked for the whole nation.

37:00

So one big question is, is this system,

37:02

is part of the issue,

37:04

the system and growth of nationwide injunctions

37:06

coming from these individual federal district

37:09

judges? So I think the Sri Answers

37:11

is part, if the question is, is part of

37:13

the issue that yes, but I think it's a bit

37:15

over determined to suggest as some, not you

37:17

have, that this is all about nationwide injunctions,

37:20

right? For two reasons. First, nationwide injunctions are

37:22

themselves relatively new, but before

37:25

them we had nationwide class actions and

37:27

it was, right, it was possible to obtain

37:29

a very similar type of order if you

37:32

had a whole bunch of plaintiffs, what's called a plaintiff's

37:34

class of, let's say all prospective

37:37

asylum applicants, right? Certified

37:39

to challenge an immigration policy. But

37:41

Chris, here's the second problem. And this is part

37:43

of why I think having a

37:45

book length treatment helps because I'm able

37:47

to sort of take the holistic view. Yeah.

37:50

So the nationwide injunctions were the problem

37:53

as both Justice Gorsuch and Justice

37:55

Thomas will suggest in separate opinions

37:57

in some of the Trump cases.

37:59

That explains why since President Biden

38:02

came to office, the Supreme Court has

38:04

left in place a whole bunch of nationwide

38:06

injunctions against Biden policies,

38:09

right? And so, you know, this is where one

38:11

of the real charges that I level in the book

38:14

is not that emergency interventions are inherently

38:17

problematic, but that if you're not going

38:19

to explain yourself, inconsistency

38:21

is a real problem. Because without

38:23

rationales, if it just so happens that

38:25

Trump wins and Biden loses, that

38:28

Texas wins and California

38:30

and New York lose, then you have

38:32

a real appearance problem where it

38:34

looks like the best predictor

38:37

of how the justices are going to rule in this context

38:39

is not the legal theory of the case, but

38:42

rather its partisan valence. In the normal

38:44

case on the merit stock, the best

38:46

response that is, but look, we wrote a 75 page

38:49

opinion with a series of rationales.

38:51

When there's no such opinion, I don't know how

38:53

you can respond. Right, right. So

38:56

this gets into why this is bad, which I want

38:58

to sort of stay on, but I also want to stay in this why

39:00

question. So you're saying it's not the

39:02

rise of nationwide injunctions. Something

39:05

changed around the Trump administration, the court

39:08

and particularly Supreme Court being amenable

39:10

to the argument the

39:11

government was making that to be state

39:14

or enjoined causes irreparable harm and

39:16

they are entitled to essentially expedited review

39:18

and relief. What's the other parts of the

39:20

why in your theory? So I think the two

39:23

other parts of the why are the

39:25

sort of the hit us over the head obvious one,

39:28

which is shifts in the court's composition. It's

39:30

enormously significant when Brett Kavanaugh replaces

39:33

Anthony Kennedy in the summer of It's

39:35

even more significant actually, especially

39:38

on the shadow docket when Amy Coney Barrett

39:40

replaces Ruth Bader Ginsburg in 2020. We

39:43

see a whole bunch of shadow docket rulings

39:45

where the court, Chris is actually 5'4 with Chief Justice

39:47

Roberts joining the three democratic

39:49

appointees in dissent. So another

39:52

part of the why is shifts in composition,

39:54

right? But I think another part of the why

39:56

is that the sort of emerging

39:59

ascension.

39:59

conservative majority feels for

40:02

whatever reason less beholden to

40:05

the kinds of both normative and

40:07

formal procedural constraints that

40:10

used to cabin, that used to limit

40:12

how often and in what context the court would feel

40:14

comfortable intervening, and the irreparable harm story

40:17

is part of that, right? That, like, you know, we're gonna sort

40:19

of look very differently. Right, I mean, well,

40:21

they're just in a rush. And also, if you know

40:23

who's gonna win, why go through all the rigmarole?

40:26

I mean, I'm being now super cynical here, but

40:28

if you'll allow me to indulge my most

40:29

sort of extremist legal realism,

40:32

you know, who are we kidding

40:35

about who's gonna win SBA? I can count

40:37

to five. SBA is Texas',

40:40

you know, case, you know, abortion ban, right? This

40:42

is pre- this is before Dobbs,

40:44

right? So Dobbs is in the work. It's

40:47

at that point, it's calendared, or is it it's

40:49

been argued, and it's, I forget where

40:51

we are in Dobbs when SBA has passed. But

40:54

we know where we're gonna end up. Why

40:56

go through the rigmarole?

40:58

Why go through all this, like, you

41:00

know, process fetishism that you law

41:02

professors love when our

41:05

team has more people than your team, ergo,

41:07

we win, ergo, Texas could do whatever

41:09

the hell it wants. And that's to me what it seems

41:12

like. Like,

41:13

let's just cut through all the nonsense here and talk

41:15

about who's gonna win because we know who's gonna win because we

41:17

run the court.

41:18

So that is an understandable impulse.

41:21

Will Bowden and I fought about this, I think, on his

41:24

podcast not so long ago. There

41:26

are two problems with it. The first is

41:28

legal and the second is factual. This is me being

41:30

a stupid lawyer about everything. No,

41:33

no, no, it's good, it's good. So the legal

41:35

problem is that then the

41:37

Supreme Court ought to admit, right,

41:39

that it is rewriting all of the

41:41

procedural rules for emergency applications, right, that

41:44

all it's doing is front-loading merits

41:46

determinations, which means it has to,

41:48

Chris, let's be sort of technical, it has to reinterpret

41:51

three different statutes, which it has previously

41:54

interpreted to sort of set rules, right,

41:56

for when it can issue this kind of relief. If it's

41:58

gonna reinterpret those statutes presumably at the end of the day, needs a good

42:00

reason for reinterpreting those statutes, hasn't

42:03

provided it. So that's the legal problem. There's

42:05

an even bigger factual problem. It's not true.

42:08

There are examples across the last

42:10

five, six years of the court going

42:12

one way at the emergency application stage and going

42:15

the other way on the merits. So just let's go to the last

42:17

term, right? So the remain in Mexico

42:19

case. This was about the Biden administration's

42:22

attempt to rescind a Trump

42:24

era asylum policy, the migrant protection

42:27

protocols. And Texas

42:29

challenged that attempted rescission in Amarillo.

42:32

They filed in there so that they could draw Judge Kaczmarek.

42:35

Oh, I wonder, oh really? That's such a weird coincidence.

42:38

Oh, did they just happen to be in Amarillo that day? Okay,

42:40

I gotcha. It's funny how that works. So Judge Kaczmarek had

42:42

issued a nationwide injunction blocking the

42:44

rescission of MPP. The

42:47

Fifth Circuit had refused to stay the nationwide

42:49

injunction, so had left it in place. And

42:51

so the Biden administration goes to the Supreme Court and

42:53

it says, hey, Supreme Court, you just spent four years

42:56

staying all of these nationwide injunctions against

42:58

Trump immigration policies. Can

43:00

we get some too, please? And over

43:03

the public descents of the three Democratic appointees,

43:05

the Supreme Court said no and did not

43:07

stay the injunction. But Chris, then at the

43:09

end of last term,

43:11

the Biden administration won that case on

43:13

the merits, right? Five to four. And so,

43:16

I think part of the problem is that

43:18

even if you were gonna say, we don't care about the procedural

43:20

limits on the court's power, we don't care about them

43:23

totally front-loading on merits decisions

43:25

and all of the bad things that come with that,

43:27

they're still not actually accurately predicting

43:30

their own bottom lines. Right, right.

43:32

That's really well said. The other thing I'll say from

43:34

a lay perspective, this is not quite a legal analysis,

43:37

but it's someone like myself who follows

43:39

the news, covers the news. There's a kind of epistemic

43:42

problem here. It's not quite

43:44

factual and it's not quite legal, but here's my version

43:46

of it. So,

43:48

first of all, the hubris involved

43:50

in Kaczmarek's mephapristome, which is like, well,

43:52

I've read these filings and I've done some

43:55

arguments. And I'm just, I

43:57

think the FDA,

43:58

which has what?

43:59

of thousands of employees is probably

44:02

one of the most respected institutions of its kind, the

44:04

entire world, whose entire life

44:06

world and institution or knowledge is built

44:09

around determining whether drugs

44:11

are safe and effective. I've done a little

44:13

bit of reading, and

44:14

I'm a judge, and I think they

44:16

screwed up. Like, there's an incredible

44:19

sort of hubris there. But to

44:21

me, what was even more hubristic

44:24

than that, which itself was hubristic, was

44:27

the Fifth Circuit

44:28

in the course of like two and a half

44:31

days with like, I don't know, probably

44:33

like seven or eight law clerks who were 25 years

44:36

old chugging Red Bull, going

44:38

back and being like, actually, here

44:41

come these 25 year olds who are all like on

44:43

the law review. Good for you. You're all very bright.

44:46

We've actually gone through, and in 72 hours

44:48

of chugging Red Bull, we've decided

44:51

that

44:51

the FDA was right in 2000, but

44:54

got it wrong in 2016 when they opened

44:56

it up to telemedicine. It's like, give

44:58

me a break. Give me a break.

45:01

How in the universe are

45:02

these seven 25 year

45:04

olds who were good on law review and

45:07

hopped up on caffeine, the ones

45:09

to make the determination about

45:11

whether telemedicine is the appropriate means

45:14

to prescribe me for Bristol. And

45:16

like, it's such a ludicrous undertaking.

45:18

And the fact that there is zero humility

45:21

from anyone involved in this process

45:23

that says like, not sure we're

45:26

the ones to make this call under

45:28

these circumstances is so outrageous

45:30

to me. It's like, it is such a bit of

45:32

like,

45:33

sort of imperialism by

45:35

the courts to grab

45:37

other people's areas of expertise

45:39

and knowledge and claim them as

45:42

their own in the most ludicrous

45:44

circumstances to actually come

45:46

to proper deliberative decisions.

45:48

Have

45:51

you met the Fifth Circuit? Yes.

45:53

I mean, that's what I'm saying. It's just like,

45:55

it's really wild. It is a wild

45:58

bit of, it would be,

45:59

It'd be like me showing up at a car factory

46:02

tomorrow and being like, give me 24 hours, I'm

46:04

gonna reinvent how you're making cars here. I'm

46:07

a smart guy. I mean, Chris, but this is, you

46:09

asked about the why, right? And I think it's

46:12

not so much nationwide injunctions by themselves.

46:14

Like in the old days, right? If you

46:16

had, it's not like we never had

46:19

outlier district judges before.

46:20

In the old days, if you had an outlier district

46:22

judge, the thing that would typically

46:25

rein them in was the court of appeals. And

46:27

you'd only have to go to the Supreme Court if both

46:30

a single district judge and at least

46:32

three, or well two, right? Court

46:35

of appeals judges were all off the reservation.

46:38

And I think it's not for nothing that a number

46:40

of these, especially Biden administration

46:42

emergency applications that the Supreme Court is grappling

46:44

with are coming from the Fifth Circuit. The

46:47

vaccine mandate for Navy SEALs, the

46:50

HB 20 case in Texas about the social

46:52

media content moderation law, the

46:54

immigration enforcement case, the court has this term,

46:57

the MPP case last term, one

46:59

of the student loan cases. I mean, part

47:02

of what's going on is not just that they're sort

47:04

of outlier district judge, but that there's a court of appeals that

47:06

is, I think I can say without

47:08

speaking out of school,

47:09

enabling that behavior, if not affirmatively

47:12

upholding it.

47:13

Yeah, and the Fifth Circuit is the

47:15

one that is, it has Texas in its

47:17

jurisdiction and is probably the most,

47:20

the Trumpiest or most right-wing, or I don't know

47:22

what you would call it, but the most sort of aggressively

47:25

right-wing court in the nation. Yep, no question. What

47:27

that gets to though, Chris, is again, what

47:29

happens when the Supreme Court isn't explaining itself?

47:32

So in the old days, if a lower court

47:34

was repeatedly behaving badly, that

47:36

would eventually provoke at least some kind

47:39

of slap down. The Sixth Circuit, right?

47:41

When back in my clerkship days, it

47:44

wasn't unheard of for the Supreme

47:46

Court to slap down the Sixth Circuit, the Cincinnati-based

47:49

federal appeals court for being too partial

47:51

to criminal defendants, right? And for sort

47:53

of not following the Supreme Court. Those were the days. And

47:56

for not following the Supreme Court's instructions

47:58

carefully enough. And so, Chris, one of the... things that happens

48:00

when you don't get the sort of principled explanations

48:03

that we're used to from the court, when all you

48:05

get is a thumbs up or a thumbs down, is there's

48:08

no opportunity for the kind

48:10

of quiet conversation, the kind of

48:12

sort of back and forth between the Supreme Court and lower courts

48:15

that actually in the past has had a salutary

48:17

effect in regulating

48:19

behavior. We'll be right back

48:22

after we take this quick break.

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49:36

How much is it also just the court, the

49:38

six free majority, or particularly the five of

49:40

the six, are just in a hurry? Like, there's

49:43

a palpable sense of rush to everything

49:45

they're doing. And, you know, it's

49:47

like, whatever it is, like,

49:49

bro, now Chevron, whatever, you know, whatever

49:51

we can get our hands on, like, the whole

49:53

sort of agenda, like, we're not going to futz around

49:55

here, we're going to move on it quickly. And so, expedited

49:58

review is a sort of

49:59

of moving things quickly. We want

50:02

to move quickly to transform this court and

50:04

wrench it in the right direction.

50:06

So I think that is probably

50:08

the best explanation for sort

50:11

of the impulses that are

50:13

guiding the justices in these cases, but

50:15

impulses ought to be overcome by reason and

50:18

impulses ought to be overcome by precedent and

50:20

by rules. And I think one of the things that I really try

50:22

hard to document in the book is that

50:24

the justices, it's not just that they're

50:26

going right to the merits all the time. Sometimes, Chris,

50:29

they're hiding behind procedure

50:31

in the, I mean, this not to get too far into the technical

50:34

stuff, like in the SB8 Texas abortion

50:36

ban case, the one- Oh, yeah, it's

50:38

such a disinj about

50:51

a very procedural doctrine that was the putative

50:54

justification for non-intervention there. So

50:57

the problem is that the more you

50:59

look at the whole body of cases, the

51:01

less anyone plausible,

51:03

principled, neutral, coherent

51:06

explanation explains them. And

51:09

the more it really looks like the justices are just doing

51:11

whatever they feel like on the day that they're voting.

51:13

So that last sentence to me gets to what

51:16

the real core of this question, right? Because

51:18

to me, the shadow doc is epiphenomenal

51:20

in the sense that when you said that when

51:22

Kavanaugh comes on the court and then when

51:24

Amy Quinn Barrett, we see sort of this explosion

51:26

in this. And to me, it's a facet of what

51:29

this court is. And deeper than that, what

51:31

the Supreme Court is.

51:33

The Supreme Court is not a court

51:36

in any recognizable sense, which

51:38

is to say the court doesn't can

51:41

cite precedent, but it doesn't have to, it can overrule

51:43

it. It doesn't have

51:46

to adhere to any

51:48

rules or anything other

51:51

than what five justices wanna do. Like,

51:56

that's not true of any other court in the land.

51:58

Every other court has to. deal

52:00

with, you know, I mean, I guess state Supreme

52:02

Courts maybe function in similar fashions, but

52:05

they're just doing something different than the

52:07

other courts are doing. And fundamentally that different

52:09

thing they're doing is

52:11

governing via majority power, basically.

52:13

And so Chris, this is why the book starts with

52:16

the story of certiorari, because

52:18

that move, right, that development,

52:20

that power is not

52:23

one that the court was born with, and is

52:25

not one that the court exercised at any point

52:27

in its first century, even really 125 years of existence.

52:31

It's really an outgrowth of the

52:33

rise of certiorari and the power that

52:35

it deliberately gave to the court

52:38

to set its own agenda, and to use its agenda

52:40

setting function to basically decide when

52:42

and how it would intervene. And so if

52:44

there's a sort of longer, broader takeaway

52:47

here, it's that, you know, Congress

52:50

giveth, and maybe Congress should take it away,

52:52

right? That part of what the shadow docket is a symptom

52:54

of a broader disease of Congress basically

52:57

giving the court all this power and

53:00

no longer exercising any modicum of

53:02

control over how it's exercised. How

53:04

do you view the possible reforms

53:06

of this? I mean, there's partly naming and shaming,

53:08

which I think does help. And actually you have been the target

53:10

of some individual ire

53:13

from federal judges. And I think

53:15

justice, if I'm not mistaken, I forget,

53:17

Sam Alito's burn book is very long. So I forget

53:20

who's on it, but I think you're in there. He called me out in his

53:22

Notre Dame speech. Yes, in the Notre Dame. Yeah,

53:24

you and Adam Seror. So there's

53:26

a certain naming and shaming, and I do think

53:28

they do, you know, they read the internet and they know

53:30

these criticisms and Kess Merrick is very

53:32

salty about criticisms. I guess

53:35

that has one effect, but how do you conceptualize

53:37

fixing this problem? So I

53:40

think where we have to start, Chris, is by identifying what

53:42

the problem is, right? And I think the shadow

53:44

docket is actually not the problem. Right, yeah, it's epiphenomenal,

53:46

right, exactly. But also, I mean, epiphenomenal

53:49

is part of it, but it's also, I mean, this is a common Justice

53:51

Alito rhetorical trope, is to say, well, we have

53:53

to be able to intervene sometimes. The

53:56

problem is not emergency intervention, right? The problem

53:58

is inconsistent on principle. emergency intervention.

54:02

The way to fix that is not, I think,

54:04

to limit when the court can intervene. I

54:06

don't think the answer is to destroy the

54:08

shadow docket. The way to fix it is

54:11

to bring back that healthy inner

54:13

branch dynamic that actually pushes

54:15

the court, that exerts pressure on the court

54:18

to stay within its lane, to follow its

54:21

procedural rules, to not stray too

54:23

far out of the middle. And indeed, Chris, and when things

54:25

get out of kilter in the lower courts, to

54:27

not just assume, hey, we can fix this, but

54:30

to actually go to Congress. Chief Justice Berger,

54:32

who I think is maligned by everybody

54:35

these days, one of, I think, his better

54:37

ideas is he instituted the

54:39

Chief Justice's year-end report in the mid-1970s.

54:42

He envisioned it as a state of the union of the

54:44

judiciary. Chris at least in part is

54:46

an invitation to Congress. Like, hey, Congress, here's

54:49

what we need. Can you

54:51

help a court out? And that persisted

54:53

through Berger's tenure, through Rehnquist's tenure.

54:56

It was only in 2009, about four

54:58

years into Chief Justice Roberts' tenure, that

55:01

the year-end report stopped asking for things.

55:04

And I think that's a symptom, right? So to me, the

55:06

way we fix this problem is

55:08

we actually build a consensus,

55:11

a hopefully bipartisan consensus

55:14

that the court as an institution is

55:16

healthier when it's part of a meaningful

55:18

inner branch dynamic and dialogue and not

55:21

when it is aloof to it. And

55:23

that an independent court doesn't mean an unaccountable

55:25

court, or else you're just going to

55:27

see more and more examples of the justices doing

55:29

whatever the heck they want without regard to

55:32

procedural norms, to principles

55:34

of transparency, to even sort

55:36

of broader concern about their eroding legitimacy.

55:38

Stephen Vladek is the Charles Allen Wright

55:40

Chair in federal courts at the University of Texas

55:43

School of Law and his new book, The Shadow

55:45

Docket, how the Supreme Court uses stealth rulings

55:47

to amass power and undermine the Republic is out

55:50

wherever you get books. Professor

55:52

Vladek, that was fantastic. Thank you so

55:54

much.

56:01

Once again, great thanks to Professor Stephen Vladek.

56:04

You can pick up his new book wherever you get your books

56:06

and send us your feedback. I'm curious, honestly,

56:09

for two audiences, lawyer audiences

56:11

and non-lawyer audiences about that podcast.

56:13

I really enjoyed it, but it's fairly

56:16

technical stuff. So we're trying to sort of straddle the line.

56:18

If you're a lawyer, I'm curious if you found that like

56:20

sort of too slow and boring because

56:23

you knew all the civil procedure stuff. If

56:25

you're a non-lawyer, I wonder if you found it like too

56:27

much, but anyway, I'm curious here. Tweet

56:29

us with the hashtag withpod, email withpod

56:31

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