The Secretive Shadow Docket Raises Questions

While the shadow docket certainly isn't new, it has grown in size and significance. Any Coney Barrett is probably the first justice to be asked to out it in your confirmation hearings. You know, the shadow docket has become a hot topic in the last couple of years. But you know, even when I was clicking on the court, it was not typical for the Court to issue opinions explaining why Sart was denied. Joining me is Steve in Plantic, a professor at the University of Checksis Law School who has

written extensively about the shadow docket. Steve explained what the shadow docket is. It's a evocative term for what is usually a pretty mundane part of the Supreme Court caseload. It was coined by Chicago law professor Will bode In basically just to describe all of the orders that the Court hands down, So the non merit decision, the technical

stuff that court does when controlling its docket. And I think the reason why it has become more pejorative and less evocative is because the Court in the last four or five years has been doing a lot more substantive stuff on the shadow docket, where what used to be primarily Anna Dine usual orders that nobody cared about are all of a sudden, a much larger chunk of orders having stuff into effects not just on the parties before the Supreme corport on like lots and lots of people

as well. Of course, on Thursday, the Supreme Court refused to block the Texas abortion law in its shadow docket. But let's focus on the two decisions last week that ordered the Biden administration to change course, each with huge dramifications involving the migrant protection protocols known as Remain in Mexico and the c DCS eviction moratorium. What are the implications, Well, I mean, I think we saw last week with the mt P case and the eviction moratorium, just how much

these rulings June can affect people. So MPP, now we're having the federal government being required to restitute immigration policies, can require potentially hundreds of thousands of style and applicants to pursue their applications from Mexico. Obviously, the eviction moratorium directly affects millions of Americans. And so I think there's sort of two pieces to the quick seek He's one is that if the court is going to be handing down decisions with such broad effects, it really needs to

do a better job explaining itself. And the MP Pece cases of an example, we've got basically one sense of analysis as to why the court ordered what it did. But Jude, I think the second part is, you know, in the eviction moratory of case, where the court actually

did explain itself, it still seems problematic. That's such a major issue effect that millions of people is being decided incredibly quickly, under rushed circumstances, with really only the skimpiest level of briefing, with no oral argument, and in a context where I think frankly the Court has not historically been at its best, and so I think the pressure on the justices is not just to be more transparent when handing down these rulings, but also to be more

thorough and provide as much of an opportunity for involvement for plenary review, provided thorough going and explanation for what it's doing, so that it's keeping with what we tend to think of as principles of responsible judicial decision making. They're supposed to be a showing of irreparable harm to the court, right if the Court takes the case on

an emergency basis. In these two cases, where was the irreparable harm if the Court didn't act, You know, the Court could have certainly waited on reinstituting the Trump Remained in Mexico policy. Well, and I think I think in both cases there actually was a pretty good argument for the Court moving. I mean, so in the MPP case, you know, the Biden administration was basically being ordered to

um to rescue this policy right away. You know, if anything I said that should have augured in favor of slowing things down if I'm the Supreme Court, and so, you know, by not grant him the Biden administration's application for a stay. I think the court exacerbated that urgency and that exigency the eventually moratorium in Jude. Frankly, I think it's a harder case because I think there's harms

on both sides. Um there's the obvious harms to landlords who you know, I think many of whom have had trouble recouping the funds that the government has made available to try to offset the effects the effects of the moratorium. And of course there's the obvious part of the folks who risk now being thrown on the streets. I think the problem runs much deeper than those two cases. The problem is that the Court has increasingly tilted the scales when it looks at the equities towards the party it's

more sympathetic to on the merit. So that you know the fact that an mp P you have potentially hundreds of thousands of a stylum applicants who now faced the very real physical risk that comes with being in Mexico and the very real risk that it will prejudice their ability to apply for asylum. That seems to be no never mind to the Court's analysis, and I think that's the real concern is that one of two things is true.

Either that's disappeared from the Court's analysis and that has problems of its own, or it's not that the Court is doing a wealthfully poor job to explain in itself. And so, you know, I think the there's sort of different layers to what people find problematic about the shadow docket. I think the lowest tending fruit is the insta fresh and explanations from the justices for why their ruling the

way they are with the migrant protection protocols. There, the Court is telling the Biden administration that it has to change its policy. You know, a policy that hasn't been used in more than a year, wasn't even used at the end of the Trump administration. That seems like a big step to take in an emergency procedure. I think

it's an enormous step to take. I think, you know, the tricky part here is that we saw over and over agains are on the Trump administration, the Court actually moving quite aggressively to stop lower courts that had blocked Trump administration immigration policies. That immigration is actually one of the most fertile areas of the shadow docket, or the trum administration. There were at least eleven different times where lower courts had blocked Trump immigration policies and the Supreme

Court froze the lower courts injunction. So I think the irony of the MPP ruling is it really drives home just how partisans these rulings appear, and just how ideological they've become, because the same deference that the Court showed towards the executive branch when it came to immigration policy under a Republican president all of a sudden seemed to disappear when it comes to immigration policy and or democratic president and June Again, I think this goes back to

the larger point, which is, if the court explained itself, it would be harder for folks to raise that concern. It would be harder for folks to level that charge. But when you couple the appearance of that kind of favoritism with the Court's refusal to actually provide an explanation, that's what makes this certainly look so insidious, whether in fact it really is. What about the fact that there isn't a full briefing in these and there aren't oral

arguments in these. I mean, so you know, I think folks who are who are sort of defenders of what the Supreme Court has been doing. I think too often caricature critics like me and say that, like we just said, there shouldn't be a show doctor at all, That's just not true. I mean sense, no one disputes that there's a need for the Supreme Court to have the ability

to issue emergency relief in extraordinary circumstances. I think the way that it has gotten a bit out of hands is how far that release is running beyond the parties. Where we've seen the Supreme Court already seven times this term blocked by it delt state policies and through emergency injunctions when it had only issued four of those in

John Roberts's first fifty years. Is chief justice right where the Court itself is basically going out of its way not just to sort of temporarily protect the rights of the parties in a case, but actually to control government policies large while the case works its way through the court.

And I think that's the part of the shadow doctors that is to me the most problematic, because that's where you have all of these transparency, legitimacy concerns It's not that we since the Court should lack the ability to issue emergency ruling. It's that we think emergency ruling should be narrowly or subscribed and not be in the business of making broad new pronouncements about the substance of federal law.

Do these decisions have the same presidential authority? I mean, can courts cite them as precedent in the same way they can with regular decisions of the Supreme Court on the merits. That's another piece of the story too, is historically the Supreme Court had insisted that these kinds of rulings were not presidential, certainly, not if they came through unsigned orders, and even not to the same extent if they came with a majority opinion. And we've seen the

Court run away from that this term. So there's a couple of examples in COVID cases where the Supreme Court has treated unsigned orders as precedents find them the lower courts. There's a decision from April called Tandon versus Newsom, where at the end of the unsigned majority opinion, the Court chastises the Ninth Circuit for refusing them to correctly read

the tea leads of four prior unsigned orders. So yeah, I mean the justices themselves June are now treating not just the opinions that are coming out of the shadow docket, but even some of the unsigned orders as having precedential effect. You know that it's more than just Biden the parties that actually also should be followed by the lower courts.

Of course, that's an enormous problem unto itself, because if all the Supreme Court is doing is given us one sentence of explanation and telling us that that's precedent Jude, it's not hard to see how people can be pretty confused about exactly what precedent it is and what the Supreme Court has actually told the lower courts to do. When did we start to see this increase in emergency orders in the shadow dockets, the up kick in emergency

applications June, we really see throwing the Trump administration. And some of that is because of the Trump administration. I mean, Trump files forty one applications for emergency relief from the Supreme Court in four years, compared to a total of eight in the previous sixteen years by the Obama and Bush administrations combined. So that's the twenty old increase in applications from the federal government. But it's not just the federal governments in private party filing more and more of

these applications. And I think where we really see this trend accelerate June is when Justice Kavanaugh replaced Justice Kennedy in the summer of And I think there are some pretty obvious explanations for that. You know, I think Justice Kennedy, as you know, was, if not a moderate, at least a moderate and influence on both of the sort of wings of the court to his left and his right. And with his departure, I think any procedural constraints that

might have come with that went with him. And so now there's not only a solid conservative majority on the merit of these cases, but also now a staali conservative majority to use this procedural vehicle to basically effectively decide those merits. So any of the data, no matter how you slice it, you really see this phenomenon takeoff starting with the court October eighteen term. You know, Justice Kavanaugh's

first on the bench. Is there a hint that some of the justices have problems with the shadow docket In the eviction case, Justice Stephen Briar referenced some of the shadow docket criticism in his dissenting opinion. He said, these questions call for considered decision making, informed by full briefing and argument. Their answers impact the health of millions. Yeah, I mean, so you know, that's I think the most Justice Briar has said, at least in an opinion, to

criticize the shadow dockets. Um just the stood of my work, perhaps not surprisingly has been much more outspoken. She's written a couple of descents in these cases where she has been quite critical of the conservative majority for how it

is to use the shadow docket. But you know, June, these have been and far between, and I actually think it's been you know, part of why this has been flying under the radar is because to the state of extent as the conservative justices, I think the more progressive

justices are fighting these cases on their merits. And so, you know, a good example again is that Tandon religious liberty case from April, where Justice Kagan writes this incredibly powerful and incredibly sharp brief the sent about why you just couldn't agree with the Supreme Court's interpretation of the free exercise clause, but sort of allies, the fact that the Court was doing this in the context of the shadow docets we it's not supposed to UM and so

I think, you know, the procedural objections are starting to get a bit louder from the left, but they've been with the exception of Justice Sodomitory, they've been pretty tame for much of the you know, sort of uptick and for much of the first couple of years of this of the rise of this pattern. What's the greatest concern Is it the lack of transparency? Is it the rushed proceedings? What's the greatest concern here for you or for other scholars? Um?

It's a really good question. I think the short answer is um, all things equal. If I could be one thing would be the transparency, if the justices would just write more UM and so in that respect, I would encourage folks to put side by side the MPP decision

and the eviction moratorium. You know, whatever you think of the eviction moratorium ruling, we got eight pages of explanation from the court identifying what the standard of review was, identifying why, you know, they thought that the Alabama Association of Realtors application statisfy that center of review. June. You and I might disagree with some or all of that reasoning,

but at least we got it. And so you know, there's lots of other stuff I'd like to fix, but if there was one big thing, I just wish the Court would explain itself a lot more often. Not because we're going to agree with them, but because it's so much better for everybody if we at least know why the Court is doing what it's doing. Thanks Steve. That's Professor Stephen Vladdock of the University of Texas Law School.

All right, Mr clinteen, let me ask you. Do you think it's a juror you would be able to set aside any prior opinion you might hold about the savings alone industry? That was a question, sir, What do I like banks? Your honor? May I have a minute place to confer with my colleagues. You may dump them. Let's get to number four six, and I'd say these number twelve except the Crosscutor's gonna be done and do it

for us. In the movie The Devil's Advocate, Keyana Reeves is a lawyer using peremptory challenges to get rid of jurors without having to give a reason to the judge. It's a tool both prosecutors and defense attorneys used to get a jury they feel will be sympathetic to their case.

Now Arizona is taking a bold, unprecedented step. It's eliminating peremptory challenges entirely, the first state to do so, embracing a reform proposed by Justice third Goood Marshal more than three decades ago as the only way to end racial discrimination in jury selection. Joining me as former federal prosecutor Robert Mintz, a partner macrter in English, start by telling us about jury selection and URVOI dear who asked the questions,

just sort of give us the broad overview of jury selection. Sure, the selection of a jury is one of the most important phases of any criminal or civil trial because those are the individuals will ultimately decide the case. And in a criminal case, it's especially important because those are the jurors who will have to decide unanimously as to whether or not the defendant is guilty or not guilty, and ultimately may go to jail, often for a long period

of time. So when you're a prosecutor and you're a defense lawyer. The selection of the jury in a criminal case is a vital part of the case. Prosecutors a defense lawyers spend a lot of time questioning jurors and trying to determine whether there is some kind of implicit bias, either for or against the defendant if you're the defense lawyer lawyer, or for or against the government if you're

the prosecutor. Typically, in both criminal and civil jury trials, a court will assemble a panel of potential jurors that is much larger than the actual number of jurors needed to hear the case, and the reason for that is that there is a long process picking a jury where both lawyers from both sides of the case get to ask a series of questions to jurors to determine whether or not they believe that those jurors can be fair and impartial and can give their client, whether it's the

United States if you're a prosecutor, or the state if you're a prosecutor, or whether it's the defendant if you're a defense lawyer, whether they can sit there here the evidence and make a decision solely based on the evidence that is presented in the courtroom and that their decision will ultimately not be affected by any express or even implicit biases that they may bring into the courtroom that could possibly affect their decision. So explain the challenges for

cause and peremptory challenges. So. Although the rules vary from state to state, and the federal system has its own set of rules, the way the process works is that lawyers on both sides get to ask a judge to remove a juror for cause if they can articulate a reason as to why they believe that cur cannot be impartial and cannot fairly hear the evidence in the case. Peremptory challenges allow lawyers to strike a juror for no reason at all. Lawyers do not have to explain why

they're striking a juror. They do not have to be able to convince the judge that the that the perspective juror may not be fair. They can simply remove a

juror for any reason at all. The number of peremptory challenges available to lawyers vary depending upon the system, depending upon the state, depending upon the type of case, but for federal felony trials, for example, prosecutors may strike up to six cures for a peremptory basis, in other words, for no reason at all, while the defense may strike up to ten jurs on a peremptory basis, but under the bats In case, if it's thought that discrimination is

the motive for a peremptory challenge, they can bring that to the judge. There are few constitutional limits on these peremptory challenges, but there is one constitutional limit that goes back to a case called bats And versus Kentucky, which was a Supreme Court case decided in Night six. In that particular case, a black man was charged for burglary

and receipt of stolen goods. The prosecutor used these peremptory challenges, in other words, without giving any basis whatsoever to suggest that a juror would be it would not be able to impartially decide the fate of the defendant, to eliminate

all four African American perspective jurors. The defendant in that case was convicted, and then in the seven to two ruling, the Supreme Court overturned the conviction and said that the prosecutor's action unconstitutionally denied the defendant his right to a fair trial and his right to equal treatment under the law. So what is a defense attorney or a prosecutor have to prove to make a bats and challenge? What happens

the judge decides. So what Batson stands for is the proposition that lawyers cannot remove a juror because of that juror's race. What it means in practice is that if a defendant raises a credible claim that a juror was excluded because of that curer's race, then the burden shift to the prosecution to come forward with a neutral explanation as to why it decided to exclude a particular adjuror. At that point, it's up to the judge to determine

whom to believe. The problem with that system is that prosecutors can come up with all kinds of neutral reasons why they might want to strike a juror. For example, they may believe that the juror expressed a bias against police.

They may claim that a juror is inattentive, and then it's very difficult ultimately for the judge to determine whether or not there was truly a race neutral explanation for striking that curre or whether there was some racially motivated reason for trying to eliminate that juror from the case. So Bob tell us about the history of peremptories. Peremptory challenges are nothing new. In fact, they actually go back

to English law into the thirteen hundreds. They were regionally put into the system in order to give criminal defendants the ability to remove jurors basically for any reason at all, and the idea was that in a criminal case, the life and the liberty of a criminal defendant was at stake, and so they should have some additional rights to exclude jurors who they think, for any reason at all, might

be biased against them. When that process came to the United States, American courts didn't follow that sanctuaries old English practice of only giving peremptory strikes to defense counsel in criminal cases, and they applied it to both prosecutors and defense lawyers. So the peremptory challenges have been coming under fire for quite a while, but particularly during the George Floyd case, that peremptory challenges are often used to exclude

jurors because of their race. The real controversy here is that when you look at the evidence. There are studies after studies which show that peremptory challenges result in a

racially imbalanced jury. So, for example, there was a study in Arizona that showed that the proportion of wake curers seeded varied only by three percent from their representation in the population, as compared to black curs, who were underrepresented by six Similarly, Hispanics were underrepresented on juries by So the argument against the peremptory challenges that it results in a racially in balanced jury and it does not truly give a defendant the right to have a jury of

his peers beside their case. So now Arizona is going to completely eliminate peremptory challenges, the first state to do so. I assume that why they're doing this is they think that by eliminating peremptory challenges, they're going to eliminate racially

discriminatory juries. That seems to be the motivation here. But it's also important to point out that the elimination of the peremptory challenge really does cut both ways, because remember, defense lawyers also get to exercise peremptory challenges, and in fact, in criminal cases they get even more peremptory challenges than

the prosecution does. So it really comes down to the question of which ultimately is better to give lawyers the right to strike jurors for no reason whatsoever, or to say that that is being used for some racially improper purpose and eliminate that right for both the prosecution and

the defense. Now there are even defense lawyers who are not necessarily in favor of eliminating peremptory challenges, because sometimes defense lawyers may look at a juror, may look at the way they're dressed, may look at their body language, may look at the way that they've answered questions, and determine that they may not be entirely fair to their client, And with the elimination of peremptory challenges, they will no longer be able to strike those jurors, because they, like

the prosecution, will have to articulate a basis in order to convince the judge as to why that particular juror may not be impartial, and that is not always evident based simply upon the answers to questions. Defense lawyers argue that it is not realistic to expect a perspective juror to candidly admit that they can't be fair in a trial.

And there is something to the argument that when jurors are asked about their ability to be fair and impartial, to express views about race, or to express views about the justice system, that they jurors may be reluctant to express those personal beliefs in the context of a courtroom and in the context of a trial in front of a bunch of strangers who they don't even know. And that's the concern that those jurors may still hold some implicit biases, and it may be a bias for the government,

and may be a bias for the defense. And now, without the elimination of peremptory challenges, both sets of lawyers, whether on the prosecution or the defense, will not be able to eliminate those jurors unless they can articulate to the judge some reason to believe that those jurors will not be fair and impartial, and prosecutors and defense attorneys can still eliminate jurors of color with pretextual reasons for cause.

Lawyers will still have the ability to eliminate jurors for cause, and then ultimately is up to the judge to decide whether that is a legitimate reason or whether there was some improper reason to try to eliminate those jurors. So it's not to say that you cannot eliminate an African American juror or a white juror for any reason whatsoever. You have to articulate a reason as to why you believe that that person cannot be fair and impartial in order to ask them to be removed from the jury panel.

And also this means that in civil cases where race may not be an issue, you no longer have those peremptories. That's exactly right. This will eliminate peremptory challenge is not only in criminal cases, but in civil cases as well. And there are cases, for example, that are not criminal where you do have lawyers who also have come out

against the elimination of peremptory challenges. For instance, in medical malpractice cases where lawyers may be representing a doctor, maybe representing a hospital, and they're worried about jurors being swayed by emotion rather than the facts of the case. Those are cases where sometimes lawyers will look at the juror will look at the body language, will look at the

way they're dressed, will maybe look at their background. And although those jurors may have expressed the ability to be fair and impartial, the lawyers have a feeling that they may not be entirely fair, that they may be somebody who has tilted slightly more towards the plain IFFs, and they will not be able to eliminate those particular jurors unless they can articulate a basis a cause on the record based upon the answers to the questions that those

jurors gave during the void deer or the questioning process. They have to be able to point to something that was said in the courtroom to demonstrate by a preponderance of the evidence that the jury cannot render a fair and impartial verdict if they want to remove from the jury panel. So, personally, how would you feel not having

a peremptory when you went to trial. Well, I think it's a difficult call, and I certainly see the evidence that the jury panels are not racially balanced, and I think in this case, what we're seeing is a decision that by eliminating peremptory challenges, we're going to get a jury that more fairly represents the community, which ultimately is

what's important here. But when you're the lawyer sitting in the courtroom and you're not looking at the numbers, and you're not looking at the statistics, and you're just trying to pick a jury that you think is going to be fair and impartial and going to make a decision based solely upon the evidence that's in the best interests of your client. You do have cases where a particular juror may not have said anything but the way that

they've answered questions. Sometimes, even if you're a defense lawyer in a criminal case, you look at the way a juror maybe looking at your client, and you just have a feeling that they may not be entirely fair, despite the fact that they're saying that they can be fair and impartial. And those are the kind of jurors who

you would like to eliminate. With the elimination of peremptory challenges, you'll no longer be able to strike those jurors unless you can come up with some kind of a basis based upon the answers to their questions as to why you think they can't be fair and impartial. That's Robert Manson McCarter and English. And that's it for the sedition of The Bloomberg Law Show. Remember you can always get

the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify and at www dot bloomberg dot com slash podcast Slash Law. I'm June Brusso and you're listening to the m