This is Bloomberg Law with June Brusso from Bloomberg Radio Late tonight. The US Supreme Court ruled churches in California can hold indoor services during the pandemic.
A major decision by the Supreme Court blocking the Biden Administration's temporary ban on eviction of a deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force.
The unsigned, unexplained decisions often come late at night, but in the light of day, their impact can be profound for millions of Americans. In recent years, the Supreme Court has used its shadow docket more and more to make critical decisions with real world effects behind closed doors, on everything from abortion and religious rights to election questions and
immigration policies. Decisions that just appear whenever, and that can't be analyzed or fully understood because there's no opinion to read, no oral arguments to listen to. Constitutional law Professor Stephen Vlannok of the University of Texas Law School has been studying this for years, and his new book is appropriately
entitled The Shadow Docket. How the Supreme Court uses stealth rulings to amass power and undermine the Republic, and he joins me, Now, for those who may not know, it's hard to believe anyone doesn't know who listens to this show, But tell us what the shadow docket is?
Sure, I mean, So the term itself was coined in twenty fifteen by Willbosity of Chicago, and you know, Will meant it, he joins me.
Now, for those who may not know, it's hard to believe anyone doesn't know who listens to this show, But tell us what the shadow docket is?
Sure, I mean, So the term itself was coined in twenty fifteen by Willbosity of Chicago, And you know, Will meant it really as a catch all as basically this evocative shorthand for everything that the Supreme Court does other than the big meriage decisions that come down each May
and June. And so Will's basic insight was that there are you know, literally thousands of unsigned, unexplained orders that's the Supreme Court hands down every year that get barely a sort of a minuscule percentage of the attention of the sixty ish merriage rules the Court hands down, even though you know, for a fair number of those unsigned orders, they actually have pretty significant impacts, both practically and legally.
So you know, the.
Idea behind the term was just to say, hey, we should start paying more attentions than this slice of the Supreme Court's work, and we should you know, start by calling it something. And I guess that's where it all started.
You right, that The bottom line is that most of what the Court does is behind the scenes, shrouded in obscurity, driven by norms far more than rules, and informed by the specter of deeply strategic behavior from all sides to which the public is generally not privy. Tell us what you mean by that.
So one of the things that I try to do in the book for folks who may not be similiar with the history of the court is to put into context how the Supreme Court of today came to have just so much control over its docket, over the cases it hears, over when it chooses to intervene in cases.
And so, you know, the idea June was to show folks how really started in the early twentieth century with the rise of what we call sircirari, the rise of the Supreme Court's discretion over its docket, the rise of the justice ability to pick and choose not just which cases they're going to take up, but which issues they are
going to resolve within those cases. That that was really a font for consolidating power, that the Supreme Court, with the rise of Scirari, claim more and more authority both to decide and to not decide June in ways that
are complete invisible to us. So you know, when the justices decide whether to take up a case or not, all that the public knows is what the briefs say and when the justices are going to talk about the case, But nothing about the justice deliberations, nothing about their vote is ever made public except the bottom line whether the case is taken up or not taken up. And you know, when you think about the implications of grants or denial, the Serciari and the book talks about the same sex's
marriage cases from twenty fourteen twenty fifteen. It's an example of this. It's actually pretty remarkable to think about how little we know about why the justices are doing what they're doing, and even when we do know, like even when we get to the merits docket and the court, you know, has an additional round of briefing and oral argument and a written opinion. Even then, we still don't
know necessarily as much as we might like to. And that's, you know, so much more than we know about the thousands and thousands of dispositions on the shadow docket.
So you give a statistic that's quite stunning. Only one percent of the Court's decisions are from the merits docket. So almost ninety nine percent come from the shadow docket.
That's right. And you know what's crazy about that is it's even higher if you consider that even the one percent of decisions on the merits docket only got to the merit docket because of an unsigned, unexplained order from the justices agreement takes the case up in the first place. And so you know, I wrote the book at least in part. I mean, there's the second part about what's
been happening lately. But I wrote the book at least in part to really help folks understand in context that, you know, when the Supreme Court has a term like its most recent one, where at the end of the term you see all these claims about how you know, the justices didn't necessarily vote the way you might have expected, and you know, claims about how often the justices were unanimous, and claims about which justice is voted together, you know, all those claims need to be taken with a pretty
healthy dose of salt, because the reality is that these are cases the justices have chosen. And so the notion that you know, this is some kind of random sample that tells us a lot of about where the court is, I think it's belied by that pretty important but often elusive insight.
How often is the shadow docket a harbinger of what's to come on the merits docket? And how often do those emergency orders actually end up being the final decision in the case.
Sure, I mean, so, you know, we've been talking mostly so far about the dominant by volume piece of the shadow docket, which is grants or denials of sercirari. So there's another piece of the shadow docket, which is grants or denials of emergency relief. This is when while a case is working his way through the lower courts, a party goes to the Supreme Court and says, hey, you know, we would like you to change the status quo right now,
even before the case comes back to you. And you know, Jude, and what's remarkable about emergency relief is that there's been a completely revolutionary shift in when and how the justices have been granted an emergency relief in the last six
seven years. You know, Hill, about ten years ago, you only tended to see the full court granting or denying emergency release in capital cases where there was like a prisoner who was trying to have his claims heard before he was executed, or a state was trying to have a stay imposed by a lower court unfrozen by the justices.
What we see in the last six seven years, June is now almost every major policy dispute you know, gets to the Supreme Court first as an emergency application, where either the party challenge and the policy wants the policy block pending Supreme Court review, or the government responsible for
the policy wants it unblocked. And you know what's I think so remarkable about that shift is first it's happened completely in the dark, without any you know, public recognition or acknowledgment by the justices that there's even been a shit.
But second, all the while, the Court has continued its norm of not explaining itself, so that you have orders that are producing massive effects on the ground, allowing President Trump to build his border wall, blocking President Biden's vaccination mandates for large employers, to allow in Texas's controversial six weeks abortion band to go into effect, allowing Alabama to use on lawful congressional districts in last year's midterms. And these orders have no rationale. And so Jane, this is
I think where your question's going. You know, it would be one thing if you know the ruling of the emergency stage, if all the court was doing was saying, listen, we're eventually going to rule for this party over that party, so we might as well just do it now and get it out of the way. But that's absolutely not what's happening. I mean, we've seen a number of cases this term where how the court ruled at the emergency application stage ended up not being predictive of what the
court did on the merits in the Alabama redistrict. In case last year, you know, in an unsigned, unexplained order of five four, court let Alabama use maps that lower courts said we're unlawful. This year, a five four majority of said, oh wait, the lower courts were right, they are unlawful. Same thing with President Biden's immigration enforcement priority. You know, last year the Court refused to freeze a lower court injunction against those priorities. This year the Court
reversed that injunction. So part of the problem with the book document is not just the explosion and when and how the justices are using you know, unsigned unexplained orders granting emergency relief in ways it has profound impacts on the ground, but also that it turns out those orders are not predictive, and so the fact that the justices are not explaining themselves, you know, at the emergency application stage is all the more problematic when they seem to
be changed in their minds at the merriage stage.
You know, the increase in the last six to seven years is under the Roberts Court. Do you think that the justices are deliberately doing this, thinking this through or they would say, well, these emergency things come up and we don't take that many cases anymore, which is another problem. What do you think their explanation would be.
I mean, you know, Justice Alito at least has tried to proffer public explanation, and he's been very in line with the you know, don't blame us, we don't make these applications up, people come to us aster a relief, and so you know, from Justice Alito's perspective, it's very reactive, where all the justice are doing is just reacting one
at a time. And you know, Dune, that explanation, I think would have made sense to a point, right, there was a real flurry of applications from the Trump administration in twenty seventeen and twenty eighteen where you know, maybe you could say, yeah, the Justice just never really sat
down and thought about it. The problem is the book documents is that by the time you get to all of the COVID related cases in the fall of twenty twenty and the winter twenty twenty one, you have a court that is at this point acting willfully in the sense that the justices are taking applications for emergency relief and using those to resolve issues that were pending before
them in other cases on their merits docket. And so it's really hard by the time you get to that point to say this was all just the justices reacting, as opposed to the justices picking you know, emergency applications as the place to make these rulings as the place
to have this impact versus the merriage docket. That's part of why, I mean, the book really does try to proceed chronologically through the last six years, because I think if you see how the pattern builds, you know, I think it really does become clear why even the more benign explanations that might have excused some of the Court's conducts in twenty seventeen, twenty eighteen, twenty nineteen start to fall apart when you get to late twenty twenty and early twenty twenty one.
So, I like the subtitle of chapter four is how the Trump administration blew up the shadow docket. So in just four years, the Trump Justice Department asked the Court for emergency relief forty one times. That strategy worked for the Trump administration, didn't it It did?
I mean, and we should put that stats in context. I mean, so forty one times in four years compared to the Bush bomb administrations, which you know, June two, very different to term presidencies that across sixteen years had only gone to the Court eight times. And so it's really it's like a twenty fold increase in how often the federal government was going to the Supreme Court for them mergency release. And as you say, the Court was
largely acquiescent. And you know, part of what's frustrating about this entire topic is because the justices are never explaining themselves, were really left to try to sort of put their best arguments, you know, into their mouths and speculate and so, you know, one common defense of the Court's aggressive interventions during the Trump administration was that lower courts had sort of run amok with nationwide injunctions and that the Court
was stepping in to basically mitigate the effects of nationwide injunctions to which the justices were opposed, you know, respecting the deference they thought the president was entitled to when it comes to say, immigration policy. But the problem with that argument is if you look fast forward to the Biden administration, it doesn't hold up because they administration has been subject to a similar flood of nationwide injunctions, including
in immigration cases. The Biden administration has gone to the court multiple times in immigration cases for the same emergency relief that the Trump administration got. The Court has denied emergency relief in those cases, and yet then the Biden administration wins those cases on the merits. So, you know, June, it's really i think it complicates the entire story that there's sort of no spoken, no written defense by the
justices of the behavior. But one of the things I really try to do in the book is present as much evidence as possible and as much data as possible, basically to show that like what would otherwise appear to be plausible benign explanations for the justices behavior. Just don't describe the entire data set, and don't hold up when you scale out from any one specific subset of cases.
You mentioned the COVID case is the KATODOCTA cases during COVID, and you have a whole chapter devoted to this. But tell us how you think the Court used the shadow DOCA to expand religious liberty rights.
Sure, I mean, so you know, I think folks will remember that, starting especially with Justice Barrett's confirmation in late October twenty twenty, there was a really sharp increase in the Court's intervention to block COVID mitigation measures, especially in Blue states on religious liberty grounds, starting the night before
Thanks Given. And this was a shift. I mean, there had been June, as you probably remember, a couple of cases in the summer of twenty twenty where the Court had refused to grant emergency relief to block California and Nevada restrictions over four decents, where to Justice Roberts had joined the four Democratic appointees to deny relief. You know, now Roberts is not the fifth vote, he's the fourth.
And so almost overnight after Justice Barrett joins the court, we start seeing really aggressive orders blocking New York, California, New Jersey, Colorado, COVID restrictions on religious liberty grounds. And this all culminates with a decision in April twenty twenty one called Tandon versus Newsom. This time around, the court actually wrote something, so there was a majority Pitton in
tand in. And one of the things the Court does in Tandon is it embraces what scholars call the most favored nation theory of the free exercise clause, the idea that when you have any kind of law of general applicability, a zone in regulation accur to you, I mean anything that applies to all. If the law makes any exceptions for secular businesses, it must also make an exception for
religious ones. And the Court used that theory, which it had never embraced before, to block California's restrictions on how many different people you could have in a private home. So California had said, you know, you can only have people from three different households in any private home at any one time as one of its COVID restrictions. And the Court says, but because there are secular exceptions, so that there must be a religious exception, and therefore blocked
the California law June. That's remarkable in two respects. First, everyone agrees, even the folks who liked that decision agreed that that's a new principle of free exercise jurisprudence, that the Court made law in tandon in a way that at least generally is not supposed to on the shadow docket.
But second, the specific relief that the applicants had sought in tent was an injunction pendent appeal, the most extreme form of emergency relief, where what they're supposed to show is that their right to relief was quote indisputably clear unquote. And here we have the Supreme Court staying it was indisputably clear that the principle that we had never previously
adopted was violated by the state of California. That's really how far things have gone on the shadow docket by April twenty twenty one.
Obviously this has not passed the attention of the Supreme Court justices. Has Justice Elena Kaye been the loudest voice in calling out the shadow docket?
She has, I mean, so Justice Kagan has been very critical of the conservative justice behavior on the shadow docket, starting with her descent in September twenty twenty one in the Texas abortion case, but carry him through to the Alabama redistricting decisions every twenty twenty two and also a Clean Water Act decision in April twenty twenty two. But
you know, June. Was remarkable about that last ruling in April twenty twenty two is that this time around Justice Kagan's opinion was actually joined not just by the two other Democratic appointees, but by Justice Roberts. And I think this is one of to me, the best pieces of evidence this is not just a you know, liberal versus conservative then, where Justice Roberts has regularly joined the first four and now three Democratic appointees in disagreeing with the
other Conservatives on the shadow docket. June not because he's unsympathetic to the marriage, not because he doesn't want to reach the same bottom line, but because he objects to using the procedural device, sort of the technical procedure of
the shadow docket to do it. And you know, I think what that really drives home is that this is not ideological but rather institutional, which is why I think it's not just Justice Kagan's a Chief Justice Roberts, who have been in the middle of critiquing this behavior by the other Conservatives.
You write that when it comes to the shadow docket, his the Chief's votes have been the canary and the coal mine. But if anyone can stop this, isn't it the Chief.
I mean, yes, to know, it's just one vote, even though it's you know, in some where ways the first vote of unequals. So I mean, as we saw June a lot in late twenty twenty and early twenty twenty one, when there are five votes on the other side, all that she really can do is defend that said. I mean, I do think that we have seen subtle but significant shifts in how the Court has been approaching emergency applications
in the last you know, twelve to eighteen months. We've seen fewer of the types of ruling about which the book is most critical, where you have these, you know, sharp ideological divides without any explanation that's like radically changing the law on the ground. We're seeing more cases June where whatever the courts do and granting, we're denying. The only public dissenters are some combination of Justices Thomas, Alito
and Gorsic. We're seeing cases that start on the shadow docket that the Court refuses to decide through an emergency application and instead punts to the merit's docket. That's what happened with the student loan cases from this term, for example.
And I think part of what that is June is actually not necessarily about Chief Justice Roberts, but about to some degree Justices Cavanat and Barrett, who you know, I don't know if they'd ever admit it publicly, but I think have been at least to some degree chastened by some of the public criticisms of the shadow docket, and
I think especially by Justin Haagan criticisms. And thus I think more moderate and more calculate in in when they are and are not going to vote fermances the release in ways that I think has slowed down what I think we're the worst excesses of this phenomenon.
You mentioned just As Alido, and you write in the book about a speech he gave in twenty twenty one where he said that the shadow docket. He called it a sinister term and it portrays the court resorting to sneaky and improper methods to get its ways. But in fact, isn't that what the court has done with the shadow docket?
Well, so, I mean, first, you know, I wrote a three hundred and sienty page books that tries to suggest that it's not an inaccurate description of the courts behavior. But I mean the other is I mean, I don't mean to get pedenta, but I think that's revealing. The term shadow is not, you know, inherently pejorative. Anytime you have a light source and an obstruction, you're.
Gonna have shadows.
The question is what happens in the shadows? And you know, we could call it whatever we want, we call it the banana docket, it would still have the same problem problematical behavior at the heart of it, which is the justices without explaining themselves, issue in rulings that dramatically upend both the law on the books and the law on
the ground. And you know, I don't mean to make sort of too much of this, but if we go back to where the Court says its power comes from and it's legitimacy comes from, you know, the typical reaction, the typical defense has been that it's the Justice's ability to provide principled justifications for their decision making, not because you and I aren't necessarily going to agree with the justices principles, but at least will agree that they are principles.
And the problem with the shadow docket, before you get to anything else, is that when the Court doesn't explain itself, when there's no written opinion that binds the justices and the Court in future cases, and that requires you know, the Court to actually treat similar cases with different partisan balances similarly, then it looks like the justices are just in as partisans, and it looks like voting you know, for this day and against that stay reflect no judicial
philosophy other than one on one team to win in the other team to lose. And that's really, I think an impression that the Court can ill afford to perpetuate, and maybe part of why we've seen injustices other than Alido, you know, quietly tweakingly some of their behaviors. On this point, Steve.
I want to turn for a moment to this term's merits docket. Some people are looking at some liberal wins, like the Court allowing the Biden administration to set immigration policy, rejecting challenges to the Voting Rights Act and the Native American Welfare Act, et cetera, and saying, maybe this court
is not as conservative as we thought. But in the final days of the term, the conservative majority issued some monumental decisions, eliminating affirmative action, striking down Biden's student loan plan, and carving out a first an an exception to antidiscrimination laws. So is this court just as conservative as we thought it was?
Yes? And I've written a couple of things about how, you know, I really do think that efforts to portray the court is moderate really are missing the forest for one or two misdescribed trees. But Dude, I actually think this dovetails with the broader point of the book, which is, if the justices are taken up a case like let's say, us versus Texas Right, the case where Texas challenged the Biden administration's immigration enforcement priority, and what the justices actually
hold is that Texas lacked stand in right. That's a technical and mostly inscrutable hole band that doesn't really tell us much ideologically, and yet it's portrayed as a liberal victory because President Biden won and the state of Texas lost on a procedural issue that has no partisan balance whatsoever. And this is a case that the Court chose to
take in the first place. So I am very wary of effort to sort of draw broad claims about the Court by aggregating the data of the merits docket, when the merits docket is carefully cultivated by the justices themselves. But second, when efforts to make those claims treats all
dispositions similarly. When we all know June that there's a huge difference between staying you know, we're throwing out this case because of a procedural defect, versus we're throwing out this case because we don't think that you have any possible claim on the merits. And so when you see statistics about how often a particular justice is in the
majority or how often the court was unanimous. I would just sort of shout from the rooftops, Well, keep in mind that those statistics are deeply misleading and aren't actually telling you what you think they're telling you.
Speaking of deeply misleading statistics, the Chief was in the majority and divided cases eighty six percent of the time, second only to Justice Brett Kavanaugh, who was in the majority ninety percent of the time. And so some commentators have said, basically, the Chief is back in charge. Do you buy that?
Think two things are true. I think reports of his demise were greatly exaggerated, and I think reports of his resurgence are greatly exaggerated. The reality is that I think the Chief has an ability to do exactly one thing. And so this term we saw a number of cases Jude where he assigned, you know, the majority opinion in a controversial case to himself, which left it for him to basically steer the court in the direction he wanted
to steer it. What that says to me is not that the Chief has somehow regained power that he has lost, but rather that, you know, the cases that the court heard this term lent themselves to that kind of investment versus the cases from last turn. And so, you know, folks look very very carefully at the fact that the Chief was sort of concurring separately in Dobbs, that's the case that was perfectly set up to split him from other conservatives, whereas almost none of the cases from this
term were. So, you know, I guess it goes back to the same phenomenon. And really, June, it's the problem with the heart of the book, which is that the way we had been conditioned to think about talk about the court, to assess the Court at the end of the term buys into sort of necessarily incorporate fairly profound skews that the Court has very carefully developed over the years and that are sort of hidden in play in sight in the work of the Supreme Court.
The liberals wrote some strong and impassioned dissents at the end of the term, and the Chief in the last line of his final opinion of the term said, reasonable minds may disagree in fact three do, but do not mistake these heartfelt disagreements for disparagement. It's important that the public not being misled either. Any such perception would be harmful to this institution in our country. What was he trying to say there?
The Chief knows that it's the last opinion of the term, and I think it's really remarkable that that's where he chose to add. You know, I think there's almost nothing that John Roberts says by accident, and that he chose to end there, to me, was an effort to say that there is too much public criticism the Court right now that is sort of delegitimizing as opposed to Stuffsn't
it right? That to him, there's a distinction between legitimate criticism of the Court and illegitimate crism in the court. And I think we've heard that from Justice Alito as well, especially in his I'll put in quotation marks interview with
the Wall Street Journal back in April. And I guess, Jude, what really sort of strikes me about that is, you know, to sort of tie it back to one of the themes of the book, because it gets to this idea that the Court has become its own keeper of its legitimacy, that the Court has decided for itself, that like it is autonomous of the political branches, it is autonomous of the people. And one of the things that the book tries really hard to make clear to folks. For better
or for worse. You know, we can debate the wisdom of this till the cows come home.
But this is actually a relatively new development that you know, for the better part of two hundred years, the Supreme Court, all its worth, was part of this pretty healthy, robust inner branch dynamic where the justices were routinely in conversation.
With the executive branch and the legislative branch, about what their docket should look like, about what their budget should look like, even their building. I mean, the court sat in the capitol till nineteen thirty five. And you know, I think part of how we got to where we are today, June is this is a court that, for better or for worse, does not believe it is accountable to the political branches, and does not believe that it
ought to be accountable to the political branches. And you know, part of the problem is that the political branches aren't doing anything to push back where you know, what used to be a pretty healthy understanding the part of the job of the political branches was to check the courts. Has I think been overtaken by the you know, sort of polarization where now you know, everyone perceives any attack on the Court as partisan as Democrats attacking or republican court.
And I think that's a really big part of how we got to where we are. And frankly, June, I also think it's part of how we get out of this, which is trying to figure out how to restore public discourse about the Court that talks about the Court as an institution, that looks at the Court as an institution, that evaluates the Court as an institution, so that when there are institutional behaviors that seem worthy of reproach and reform, it's not just the folks in the minority clamoring for
those reforms, but everybody, because we all ought to be invested in having a healthy Supreme Court. And that is a huge part of why I wrote this book and a huge part of what I hope appeals to folks as they read the book.
Your book is a fascinating read, Steve, and so well researched. Of course. That's Professor Steven Vladik of the University of Texas Law School. His book is called The Shadow Docket, How the Supreme Court uses stealth rulings to amass power and undermine the Republic. And that's it for this edition of The bloom Berg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at www Dot bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg