The Shadow Docket Is As Ominous As the Name

Since August, the Court has issued more orders on the shadow docket than opinions on the merits docket. Me Cony Barrett is probably the first justice to be asked about it at her confirmation hearings. You know, the shadow docket has become a hot topic in the last couple of years.

This past term, the Court has used the shadow docket to decide issues affecting millions of Americans, from abortion to voting rights to COVID policy, and the three most conservative justices have signaled they want to use it even more aggressively. My guest is constitutional law experts Stephen Vladdock, a professor at the University of Texas Law School. He's testified before Congress about the shadow docket. Steve, why are we hearing

so much about the shadow docket lately? Well, I mean, I think part of it is that the Court is doing more and more significant stuff on the shadow docted. I think more of it is that, you know, folks are paying attention to it to a better degree than ever before, and the Court, for all the headlines and dramas around him, the most recent term, is actually deciding a fewer cases on the merits doctor it at any

point since the Civil War. So you know, when you have a flurry of significant rulings coming down through these unsigned, often unexplained orders, it's no surprise that folks are paying a lot more attention to that part of the Supreme Court's work. Since August of one, the justices have issued sixty six emergency orders compared to sixty merits opinions. So does something seem off there or are these really emergencies?

Twenty nine were related to COVID rules fifteen to executions. Well, and I think it's worth stressing that the denominator there is not necessarily telling us how often the Court's intervening I mean, so far this term, I might kind of think the Court has granted sixteen emergency applications. That's on rough paste for where we've been the last couple of years, which is twenty to twenty four per term. But even

that's up dramatically over you know, prior years June. I think part of what's going on is there have been obviously a whole bunch of external causes for increased emergency delegation. You know, part of it is that because the Court is actually granted more of these applications, because more and more of these efforts are succeeding. You know, lawyers are acting as lawyers act. Lawyers are going to try to remember the application in context in which they previously would

not have. And so I think we're just generally seeing an increasingly active shadow docket, be getting an increasingly active shadow docket where the more the justices seem willing to intervene early in cases to disrupt the status quo through these unsigned and usually i'll explained orders, the more the parties are going to ask them to. I think that's why we're seeing the shadow docket really start to compete

with the merits docket in overall volumes. This term, the Court used the shadow docket to decide several hot button issues. Have you identified any issues you think they shouldn't be deciding on the shadow docket. It's hard to sort of say that there's an issue that should or shouldn't be

for the shadow doc. And I think the question is is the case really an emergency and it's just really a context where the Court doesn't have time to hustle the matter onto the marriage docket, to give the parties time for plenary briefing, to hold oral argument, to write you know, the more conventional, lengthy opinions, and you know, frankly, I mean, one of the things about this term that's really interesting is that I think the Court has started

to react to some of the criticisms of the shadow dockets. You know, two of the most significant shadow docket rulings all term where the OSHA and CMS vaccine mandate cases. And in those cases, even though those were emergency applications, the Court actually held oral argus and the first time the full Court has heard oral argument on an application since the nineties. That you know, we've seen the Court move a couple of cases from the shadow doctor to

the merriage docket. That dispute in Texas over whether a death row inmates could have a religious official in the execution chamber with him who could touch him and pray over him. You know, while the execution protocol was being administered, that started on the shadow docket. The court kicked it to the merrit's docket. So two nights. I don't think we can sort of stay as an abstract matter. Issue X shouldn't be on the shadow docket. I think the real of problems is that the court is treated as

emergencies saving pretrist aren't. I mean, there was a really significant April shadow docket ruling in a case about the Clean Water Act, where by a five to four votes, the Conservative justices other than Chief Justice Roberts stayed a district court order stayed an injunction that a district court in California had issued against a Trump era rule, even though the district court had ruled five months earlier, and even though the parties that were asking sport for a

day hadn't shown any harm that had resulted by dint of that district court, and so, as Justice Cadian pointed out in her dissent in that case, a case called Louisiana versus American rivers. If the court's going to use the shadow docket in cases that just aren't emergencies like that case, then the shadow doctors not for emergencies at all. And all that's really happening is that these are simply

disguised and even more simply reasons merit's decisions. And that's I think why there are folks like me who have become so much more publicly critical of what the court is doing in this context. Yeah, that cut my eye. Undoing an e p A rule on water quality standards, how did they even justify or they don't have to justify, guess taking that on an emergency basis, it seems outlandish.

And this is exactly where we are. I mean, I think in that case of such a crystallization, where hard to see what the emergency was, given that there has been five months the district Court had ruled. Even if right the court was sympathetic to Louisian his claims on the merits, the district Court had misread the clean water after and misapplied relevant precedents about administrative law. You know, why not just put that on the marriage docket and

deal with it in due court. And what's so I think strike came about that decision June is you know, you ask, you know, why did they do it right? Well, we don't know because there was no majority opinion, there was no concurrent opinion. We know it was five or only because four justices publicly joined in the dissent, and

not just the three democratical points. These chief us to John Roberts, joined Justice Kiggin's The Scent, an opinion which called out the majority for in Justice Kiggan's words abusing

the shadow docket. So I think what we're seeing is more and more public awareness of a trend that really started in and the Clean Water Ract case is especially I think Goland because the decision came just two days after Justice Barrett gave this speech at the Ronald Reagan's Presidential Library where she says, you know, if you really think we're politicians in robes and not judges, read our opinion. Read the opinion and see for yourself if there are

legal principles driving our decision making. Well, two days later, she is the decisive vote in the Clean Water Ract case, in which there was no opinion to read and in some of these cases, you have lower courts having trials on these issues, and then the Supreme Court comes along and says, no, we're reversing that, without oral argument, without any explanation. It's I don't know what else to say

that it's sort of jaw dropping. The key is that I think there are a lot of folks out there who think that all that matters is the bottom line. And so if I say that the bottom line is okay, then I don't care about how the court cut there, but the process matters here. There's a more recent Louisiana case about redistrict in that I think is really instructive here.

So Louisiana, you know, like a number of states, is redrawing its congressional districts after and in life of a district court, after an extensive hearing, writes this one hundred and fifty two page decision that carefully sets out why he believed Louisiana's maps violated the voting rights. That why he believed Louisiana was required to draw at least one more so called majority minority district to avoid violating steps in two of the voting right back. And it is

a full bore full sorted analysis. Louisiana asked the Fifth Circuit, the most conservative pelic court in the country, to stay that district court decisions so we can use those maps in the two elections. And the Fifth Circuit refuses to issue a stay and writes thirty three pages of its own about why, in its view, the district Court decision was at the very least not set it to a stay and maybe even correct. And then Louisiana goes to the Supreme Court and says, hey, Supreme Court, will you

stay the district court decision? And the Supreme Court stays the distric Court decision with narrow a sentence of explanation. And so you have district courts, you know, doing their job, working really really hard, writing really really thorough opinions. You have the appeals courts doing their job writing thorough opinions.

And there's the Supreme Court, which in one sentence just says, nahum, you know, I don't see how that is a legal system that is going to increase public confidence in the Supreme Court as an institution versus the notion that was a sort of the synecolon non of the Supreme courts legitimacy is its ability to explain itself. Did Justice Kavanaugh try to make a distinction between, you know, how fast

the election was coming up? In one of those cases, there's an Alabama case from earlier this term where Justice Kavanaugh wrote a concurrence in the unsigned on its lay in Supreme Court order staying a similar ruling in Alabama. I mean, you had so the Albama cases in some respects even more egregious, where you know, Alabama, a bunch of Alabama voters the day after Governor Ivy signs the congressional maps into law, they filed suit, like they filed

to literally as soon as they could. The case goes to a three judge district court, which is comprised, I think entirely of Trump appointees. The district court says these maps violate the voting right that and you know, it's just a lengthy opinions that you know, you've got to draw him again. And the Supreme Court stays that order.

But what's crazy, as Kavanaugh's concurrence relies on this thing called the personel principle and the for self principle is this, you know, based on the two thousand and six shadow docket ruling UM that federal court should not change the rules for elections as the elections approach. Well, in the Alabi on the case, the elections were nine months away, um, And even the primaries, which could have been moved if

they had to be, were four months away. And so you know, yeah, Justice Kavanaugh, I think I remember, joined by Justice Alito. You know, it writes the short concurrence trying to justify at least why the two of them

voted for a day. But if anything like they're concurring, opinion raises more questions than it answers, because you know, if Purcell applies that far in a dance of an election, then how can you ever have an injunction in a dance of an election that's going to be effect is And you know, I think that part of the problem here is that when you have either no explanation as in Louisiana case, or explanations that just don't hold up to scrutiny, as in the Kavanaugh concurrence in the Alabama case,

you know, June, for those who want to see partisanship and rank politics, there's nothing to disabuse them of that conclusion. There's no analysis to point in other direction. No one can say, well, you know, that's just because you disagree with how the Court is explaining itself. Well, if the courts not explaining itself, what is there to disagree? Looking

at the numbers and the partisan splits the courts. Liberal justices Stephen Bryer, Sonya Soto Mayor, and Atlanta Kagan dissented the most in emergency orders that were granted, but conservative justices Clarence Thomas, Samuel Alito, and Neil Gorsich did so the most when the Court refused to act on appeal. So what does that tell you? One of the many interesting things about the shadow doctors, I think there's in some respects more interesting data about the justices voting patterns

than there is on the merits docket. So there was this remarkable moment last October. There was a case out of made called Does versus Mills. It was a challenge by US, the main healthcare workers, to the state's mandate that healthcare represent the states be vaccinated. And there was like a one paragraph concurring opinion by Justice Barrett, joined by Justice Kavanaugh that basically said, just because we're sympathetic to your claims on the merits. Doesn't mean we're automatically

going to vote to grant emergency relief. You know, we're going to exercise some modicum of this suppression and deciding when emergency release isn't as imporanted. Basically, Barrett and Kavanaugh laying down a marker that they were going to not vote to grant emergency release as often as they had today as recently as the previous term and June we've

seen that play out. I mean, we've seen a number of cases since October where the only public dissenters from a denial of relief were Thomas A Leader and Gorsage, And so the assumption is that Barrett and Kavanaugh did not join them. Some of these have been vaccine mandate cases, you know, the Navy Seals cases a good example of that.

Some of them have been cases about like for example, Texas is social media law, and in that respect, again, I think one of the stories of the October one term is that the Court has at least to some de moderated its shadow doctor behavior. But I actually think in some respects even the moderated version of it is just as problematic as you know, what we saw, for example, during the October term, and the fact that Thomas the Leader and Gorges would go further and would grant emergency

release even more often. I think, because you know, a sign of how close we are to this being even more of a problem already is so, then do the lineups on the shadow docket differ from the lineups in merits cases. There's a tendency when folks think about the court to think about the stick three chord or the three three three court, and I think that's not quite

fair on the shadow doctor. I mean, one of the things that we saw again this term was Chief Justice Roberts joining with the Liberals a number of times in dissenting from shadow doctet orders. And so I think the shadow docket, as much as anywhere else, is basically as goes Kavanaugh and Barrett, so goes the Court. And you know, one of the things the striking numbers of the whole term is every justice dissented at least once June in a merit's case. I think the fewest was three by

Kavanaugh in the Chief. But on the shadow docket there wasn't a single shadow docket order all term from which Justice Kavanaugh publicly dissented, and I think that's a sign of the times. I think that's a sign of who's basically the critical vote in shadow doctet context. And I think it's all the more reason to be wary about

a fourth that's not explaining itself, given that. You know, when Justice Kavanaught is right in on the shadow docket, as in the Alabama redistrictive case, his opinions are often, shall we say, not exactly satisfied in providing a coherent, sort of defensible forward looking that explanation, Thanks so much, Steve. That's Professor Stephen Vladdock of the University of Texas Law School.

Remember back in May when Elon Musk tried some legally to describe his claim that Twitter breach there forty four billion dollar buyout deal. You know, it's a material abvers uh misstatement. You know, if if if they in fact have been um for surferously claiming less than five of VEGERSPAM accounts, but in fact it is four or five times that number, or perhaps ten times that number. This is a big deal. It is a big deal. But the Delaware Chance to Record is treating it just like

any other big deal. It handles, and the indication is that the judge doesn't think that counting bots is the main issue. Joining me is Eric Tallely, a professor at Columbia Law School. So Eric Musk lost the first round in court, the Chief Judge, Kathleen McCormick put the case on the fast track, with trial scheduled for October. What do you think is the real reason Musk wanted to

delay until February or was it delayed just for delays sake? Yeah, I think there was definitely a part of the strategy that really just wanted to create additional uncertainty. I think a lot of people who have tried to size up this case suggest that Mr Musk is sort of fighting

an uphill battle right now. I think the idea, you know, was probably first and foremost just to elongate the clock so that, you know, possibly more information could come out, so that there would be greater possibilities to mine into the spam account and body count data and possibly you know, pull a rabbit out of the hat where a rabbit

really hasn't been there. Thus part now there's a second possible reason to try to elongate the proceedings, which is that Mr Musk's own financing, by its very terms, expires in the spring of two thousand twenty three, and if the financing expires of its own terms, that could potentially change a lot of the potential remedies that are available. It could make it harder, for example, to have a specific performance decree when there's no longer any financing in

the picture. Briefly, what were each side's argument for Twitter for why it wanted an expedited trial and must for why he wanted to know until February. Yeah, I think that that the Twitter account was was relatively unsurprising in terms of of of where uh Twitter's lawyer Bill Sabbatt was going to. The expediting of a trial in a large commercial litigation cases actually pretty frequent in Delaware, particularly when it comes to UH, to these so called busted

deal cases. You basically have to say, look, we've got, um, what's known as a colorable claim, which is a pretty low standard, because we've we've alleged some things that um, you know, if we improve them, they're gonna they're gonna hold water. Uh. And the second is that that they are ongoing uh suffering some type of an irreparable harm

if they don't get resolution of the case. And uh, you know, in in many respects, both of those things were, uh, we're already out there kind of in the public domain. The colorable claim was relatively straightforward. And Uh, and the fact that you know, Twitter was kind of in this state of limbo for a long period of time and

continues to be in the state of limbos. We don't know exactly what's happening with this deal means that employees may be leaving, that commercial clients may be leaving, that the user base may be growing uncertain about what uh to expect in terms of Twitter, and and and those are the types of arguments that Twitter's lawyers said, you know, really do justify expediting the process. Moreover, they said, you know, we we even in the merger agreement said you know,

we're going to have a termination date in October. And that also is a signal that we wanted this resolved quickly. Must's attorneys, um, you know, somewhat unsurprisingly, said well, you know, we really want to make this case about how do

you measure bought accounts? Now, Uh, there's a big issue about whether that's even going to be a central aspect of this case because you know, the contract itself doesn't really even talk about bought accounts, but certainly, UH, team Must has been trying to inject that into the picture, and to the extent they can. UH, Must's attorneys argued, you know, it's going to take a long time to try to vet all the data, to try to bring in experts to try to understand what's going on with

the data. And so, you know, somewhat unavoidably, I think Must's lawyers, you know, kind of had to make the issue of you know, measuring bought accounts something that that uh, you know, um they could convince the judge was sort

of a fore ordained challenge in this case. And uh and then the second thing that they that they argued is that you know, don't take don't read too much into this October termination date that we got into, uh, into the contract, because if you look into the terms, that that date just continues to get moved forward and pushed forward if there's litigation around UH this deal, which

there now is. So really the the real deadline is the deadline for the financing in the spring of two thousand twenty three, and and none of those is a terrible argument. You know, I I think there is a sense in which, you know, the allegations about bought accounts, you know, even though they are in many ways peripheral to the contract, Musk's attorneys are definitely going to be

trying to concentrate on that. So there are going to be additional arguments about that, and uh and the attorneys for for Mr Musk were actually pretty good, I think, in in in in you know, taking a little bit of the attention off of the idea that you know, we had to settle everything by this October termination day, just you know, the terms of the contract were a little bit more flexible to that. Did the judge give

Twitter everything they were looking for? She largely gave the Twitter attorneys what they were looking for, but not quite. She said, Look, the proposed schedule that the Twitter attorneys have put forward is somewhat aggressive relative to what we've seen in past practice. She sort of surveyed other cases that you know, had been filed in similar situations and said,

look at these other ones. You know, they're big, they're expensive, they're complicated, but we still are able to get them done between you know, sixty and ninety days and that's what I'm going to apply here as well. I don't see any reason why we have to use a different set of rules than has applied to these other cases. We now know how to adapt to COVID. If there's a spike and infections and we have to do things over zoom, we know how to do that as well.

So I have great faith chance for McCormick set in the attorneys and the experts and my staff to pull this off just the way that we pull off any other type of busted deal case in the usual course of conducting our business. And that was significant, I think

for a couple of reasons. One is that it does sort of suggest that Delaware wants to get back to its usual routines, because it's views those as being important for everyone who has an interest in Delaware law, in in large transactions and and applying Delaware law to it.

I think the other reason that it was significant is that it suggested, you know, in a somewhat a preliminary way, but it still suggested that Chancellor McCormick was not going to be inclined to treat elon musk and specials or exceptional or you know, floating above the rules that pertain to everyone else. He's going to get exactly the same type of justice that anyone else would so with Twitter, and we're gonna, you know, see how this plays out

over the next couple of months. So in many ways, the day was a good one for Twitter, not so good for Musk, but it was a very good day, I think for the Delaware court system as a whole. Did Chancellor McCormick give any hints about how she views this deal or what's important in the case. She was appropriately pretty guarded about expressing opinions about the underlying merits of the case. There are potentially a few things that

do seem to leak out a little bit. She did specifically say that, you know, this looks like it's the type of case where specific performance would be appropriate. That money damages, you know, wouldn't compensate Twitter for all of the pain and harm and lack of closing deal. And so, you know, to the extent that there was, there is and has been a debate about whether Chancellor McCormick would be friendly to Twitter's requested relief of an injunction forcing

the closing of this deal. I think she did sort of tip her hand a little bit to say, yeah, that looks like it would be an appropriate remedy in this case. And so you know, there was a little bit of a a sort of sort of movement at least in terms of people's predictions about whether she would

embrace that or not. I think the second thing that it is much more implicit that comes out is that now that she has put these parties on you know, a leash that's only a couple of months long, to do all of their expert discovery, to do all of their depositions of fact witnesses, to do all of their document review, and all of their data review, it suggests that the bot counting exercise is going to have to

be somewhat more limited than what team must wanted. You're not going to be able to, you know, pull out just mountains and mountains and mountains of data and be able to go over it and reach definitive conclusions about it in a couple of months time. These things you do take time for a full blown review of the data.

So it is at least a little bit suggestive that Chancellor McCormick is probably going to cabin the fishing expeditions for bots a little bit and quite possibly concentrate a little bit more on exactly what was Twitter putting in their securities disclosures. They weren't writing about specific numbers of bots.

They had a rough estimate, but but much of it was just sort of describing how they went about auditing their own system and that's the thing that is most testam in terms of whether those disclosures had fraudulent statements, And then did they actually audit their bot systems? Did the process that they have cohere with how they described it in their violing Twitter said that Musk willfully breached his obligation to make his best efforts to close the deal.

Is that the standard is it best efforts? Well, they they put a standard into the contract itself, which which puts a duty of best efforts on Mr Musk. There is a parlor game in Delaware law, and there has been for many years about how courts should interpret various terms that use the word efforts. And there's a whole different set of lists of them best efforts, reasonable efforts,

commercially reasonable efforts, commercially reasonable best efforts. The list goes on and on, and in some recent cases, the Delaware courts you know, haven't been willing to pick knits between

those various types of of provisions. They basically said, look, you've got to demonstrate that you have tried and if there's evidence that you were either not trying or trying to sabotage the deal, that's going to violate your efforts obligation and and and and Twitter here, I think is on relatively solid cliff ground at least given the facts that are out there publicly that that that you know, that that that must not only was you know, very quickly trying to backtrack on the deal, but was even

sort of engaged in uh you know, trying to get you know, the saf you to investigate Twitter and uh and was you know disparaging various uh, various employees and managerial actors within within Twitter. A lot of those are public um events that are are going to be you know, going to make for pretty good uh you know, documents

and demonstratives in a in a judicial proceeding. Uh. And so so you know, the the key thing that that that Twitter needs to demonstrate is that, uh, that it was Musk who breached this contract, uh, not just by pulling the plug, by claiming he was going to terminate it, but by doing a bunch of this stuff. You know, all through this process, Musk's team is going to try to demonstrate that that no, it was Twitter that breached the contract because Twitter wasn't giving him all the information

that he kept requesting and requesting and requesting. Uh. And you know, Twitter argues that, you know, we were complying with our obligations, that our obligations gave us some judgment about you know how granular we were going to have to be in providing him with information. And so what does this expedited schedule mean for the legal teams here? For both sides, this is now kind of an all

hands on deck moment. So I would not be surprising to see delivery trucks with Diet Coke and Red Bulls backing up to the law firms that are having to push forward with all kinds of depositions, document to review, expert reports, and so forth. But this is not unusual in Delaware, even for large high profile cases. There are a lot of these large, high profile cases that end

up taking this fast track to final adjudication. In fact, that's part of what Delaware advertises itself as providing for big transactions in which you know, delay um might mean death for the transaction or or uncertainty is you know, one of the worst things that you can have, and for longing that uncertainty is even worse. So there's a sense in which, yeah, there's a big transaction, but it's

not an overly complicated transaction. Um. In fact, you know, a lot of the aspects of this transaction, uh, you know pretty much didn't leave very much to chance. And so yeah, that both sides are going to be spending a lot of effort to try to make out the best case that they can. But this case to the facts of this case, but the way that this contract were uh, doesn't suggest that it's going to be you know,

rocket science to be able to pull this off. It's definitely the case that the party is gonna be working very, very hard. But these lawyers have gotten to the finish line countless times before is cases that had similar sets of facts, though not necessarily the huge size and big personalities that are involved here. Finally, you've been thinking that Twitter had the advantage here. Do you still think Twitter

has the advantage? Yeah, I think that you know, Twitter seems to have been um in the driver's seat, even going into this proceeding the fact that they got pretty much what they wanted in terms of a shorter timeline. Playing the delay game, uh was was going to feed into the Musk team's uh sort of best case, and they they didn't get that. So, if anything, the decision by Chancellor McCormick, uh, you know, strengthened Twitter's position in

this deal. Uh. And you know, we're gonna learn more and the parties themselves are gonna learn more, um as they go into this very very fast pace of discovery, and it may be that their own views about the case start to converge with one another and we may see a settlement here. You know. The personalities are big enough, however, that you know that this case could end up going all the way to litigation, which would uh you know,

you know, happen in the last half of October. But that also is going to be a fairly quick trial five days um that are being calendared right now in the last couple of weeks of October. It looks like thanks so much, Eric, that's Professor Eric Talley of Columbia Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest

legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law, and remember to tune to the Bloomberg Laws Show every week night at ten b m. Wall Street Time. I'm June Grossow, and you're listening to Bloomberg