Here's Where It Gets Interesting - The Shadow Docket with Stephen Vladeck

Episode Date: July 31, 2023

On today’s episode of Here’s Where It Gets Interesting, Sharon welcomes law professor Stephen Vladeck to nerd out about all things The Supreme Court. Stephen dives into the elusive behind-the-scenes “shadow docket,” and how 99% of what the court does is in the shadows – without public hearings, and without explanation. With approval ratings of the The Supreme Court at a historic low, what can Congress and the average American citizen do to hold the court accountable, and foster transparency?  Special thanks to our guest, Stephen Vladeck, for joining us today.  Hosted by: Sharon McMahon Guest: Stephen Vladeck Executive Producer: Heather Jackson Audio Producer: Jenny Snyder Hosted on Acast. See acast.com/privacy for more information. To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

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to your OpenTable account. From there, you'll unlock first come, first serve spots at select top restaurants when booking through OpenTable. Learn more at OpenTable.ca forward slash Visa Dining. Hello, friends. Welcome. I have a treat for you today. If you want to hear me get full governed, today is the day. I'm chatting with Steve Vladek, who is a law professor at the University of Texas, and he has a book called The Shadow Docket. And this is about the Supreme Court and their use of the shadow docket. We're going to get into what that means, what it is, how it impacts all of us, and maybe what we can do about it. So let's dive in. I'm Sharon McMahon, and here's where it gets interesting.

I'm really excited to be joined today by Steve Vladek. Thank you so much for being here. Thank you so much for having me. This is a real treat. Of course. I love the Supreme Court and I read your book with interest. And it is a book about the Supreme Court's shadow docket. So much to talk about, so much to get into. I would love for you to start by giving people just a little bit of your professional background so they have a basis for understanding how you even came to write a book about the shadow docket, and then we'll get into it. So I'm, as I said, a law professor at the University of Texas

in Austin, Hookham. I've been teaching for 17 years, and my real areas of expertise are nerdy questions of federal legal procedure and sort of the structure of the federal court system, and of course, the Supreme Court figures prominently in all of that. And I've been lucky, you know, as I've been teaching and writing about the Supreme Court, I've also had a couple of opportunities to practice before the Supreme Court. But, you know, Sharon, for me, my interest in the Supreme Court has always been sort of drawn to the more technical side of what the court does, partly because I'm a proceduralist at heart.

technical side of what the court does, partly because I'm a proceduralist at heart. I'm interested in how systems work and not just the bottom lines that they produce. And partly because I think there's actually a lot of stuff buried in the procedure that actually is really important. And it's really a big part of what impelled me to write this book was to try to actually bring to folks who care about the Supreme Court, who are interested in the Supreme Court, but maybe who are not the nerds about the Supreme Court that I am, more understanding of how it came to be that the Supreme Court plays such this dominant role in so many facets of our contemporary public policy debates. Well, you know what we call people like you, Steve? People

in this community, we call ourselves governors. So you can take that and run with it, Steve. I, of course, am very interested in the Supreme Court's influence on public life. But as you mentioned, in order to understand the scope of their impact, you have to understand the shadow docket. So first of all, what is the shadow docket? For somebody who hasn't read the book yet, what actually is it? So the term is this really descriptive shorthand that a Chicago law professor named Will Bode coined in 2015, really to encompass everything that the Supreme Court does, all the rulings the Supreme Court hands down, other than the 60 or so big, long decisions we get every May and June in cases that have received the full nine yards of process, in cases in which there was oral

argument, multiple rounds of briefing. That's the merits docket. And the shadow docket is basically everything else. And Will's insight back in 2015 is that there's actually a lot of pretty important stuff that happens in the shadows where we don't talk about it as much, where because of the nature of how the court deals with those matters, there's just not nearly as much access to them. There's not nearly as much public discussion of them. And Sharon, I think the most important thing I hope folks take away, at least from our conversation, even if they don't pick up the book, is that actually most of what the Supreme Court does is over there

in the shadows, not in front of us on the merits docket. By volume, it's 99% of the Supreme Court's work comes through unsigned, unexplained orders. And a lot of those orders are unimportant, and we don't care much about them, but not all of them, right. And so the basic gist of the book is, hey, here's a big part of what the Supreme Court does that we don't know a lot about, that we don't talk a lot about, and that I think folks who are not the sort of uber legal nerds may not even be fully aware exists. When you say that 99% of their work comes in the shadows, does that also include their denials? They're like, we're not hearing your case. You get nothing, nothing for you. Goodbye. Does that include that? It does. And so one of the things I think some folks may already know about the Supreme Court,

but I think a lot of folks may not fully appreciate is today and really since 1988, almost all of the Supreme Court's merits docket, right, almost all of the cases in which the justices have multiple rounds of briefing and oral argument are cases that the justices have chosen to hear. So just for example, I mean, this most recent term, the court decided 58 cases on its merits docket. All but one of those were cases that justices chose to decide. There is one what we call mandatory appeal. And what that means, Sharon, is that a lot of what the court does by volume, by sort of impact, and just by math, is deciding which cases to hear and which cases not to

hear. The justices get somewhere between 4,000 and 6,000 petitions for review, what we call certiorari, every year. And so just the biggest chunk of data in Supreme Court decision-making is when the court says, hey, we're not going to hear your case. And we're going to let the last ruling by a lower court, whether it's a federal appeals court or a state Supreme Court, be the last word. Supreme Court be the last word. People are always curious about to what extent when the Supreme Court does not agree to take a case. People are always curious to what extent does that represent agreement with the lower court versus just a topic they're not interested in versus something where like, listen, we've already heard 22 cases about this topic. We're not taking another one.

Do you have a sense of the ratio of how that works? No. Because they don't tell you. They don't tell you. They don't tell you. me should not read anything into. We are not allowed to draw any inferences. And that's not, of course, the same thing as when the court hands down a massive lengthy opinion, say on affirmative action or religion or abortion. But as the book tries to explain, it actually is in some respects a critical part of how we get to those decisions. And even when the court says you can't read anything into our denials, the denials often still have massive practical effects. One of the stories the book tells is when it came to the legalization of same-sex marriage. I think a lot of folks just assume that the critical moment was the Supreme Court's 2015 decision, a case called Obergefell v. Hodges, on the merits docket,

it actually turns out that if you really pull apart the cases, Obergefell itself only legalized same-sex marriage in 13 states. By the time the court decided Obergefell, 19 states had legalized same-sex marriage on their own, and 18 had had same sex marriage legalized by federal court rulings that the Supreme Court declined to review. And so there's a very, I think, hopefully accessible example where in 18 states, same sex marriage became legal because of denials of certiorari. In only 13 did it become legal because of a marriage rule. Like that's an unusually visible example of the broader phenomenon of just how much power the court actually exercises, even when it is declining to take a case. Out of personal curiosity, even though they say like, listen, don't read into it.

It doesn't mean anything. But do you personally now look back with the hindsight being 2020 and trace a connection between those more than a dozen denials to their future decision? What is your personal inference from the example that you just gave? So the first thing to say is that we ought to remember that the Supreme Court is a they, not an it, right? And so different justices might have been voting to deny Sir Shirari for different reasons. I think the best I can say, and the book says this in print, is that I think at least for the justice who was probably the critical swing vote, Chief Justice Roberts, I think the consideration that probably drove it was he was willing to let

same-sex marriage be legalized without the Supreme Court's imprimatur, but he was not willing to have the Supreme Court bless it. And so when it was simply a matter of staying out of the issue, right, he was comfortable keeping the court out of that fight. But once the court's hand was forced, once one of the lower courts ruled the other way and created what we call a circuit split, that's when the court had to intervene and Chief Justice Roberts ends up dissenting on the merits. Can you explain for somebody who's not familiar what the concept of a circuit split is and why that might force the Supreme Court's hand? So before 1891, the Supreme Court had no control over its docket. Basically,

if Congress said, hey, Supreme Court, you can hear this case, then the court had to hear the case. Before the Civil War, that was not a big deal. The courts hear only 50, 60 cases a year. By 1880, there were 1,800 cases on the court's docket. They were three and a half years behind. That was not going to work. So with the power to sort of have discretion over which cases the court's going to hear, which we see the first sort of step toward in 1891, the big step is 1925, Sharon, comes the question of what are going to be the cases that the court does take, right? What are going to be the cases where the court really does feel impelled to exercise its discretion. So one set of cases is what we just call the sort of the uber important questions of federal law, right, where

it's just a massively important question. We don't care what the lower court said, we need to decide this. So, you know, affirmative action, abortion, like the big hot button stuff. But then there's also the problem of the Court of Appeals in California says the law means one thing. The Court of Appeals in Texas says it means something else. We don't actually think this is a big deal, but the law should be uniform. And so we're going to take this case, not because it's super important, but because we can't abide having the law be different in two different places. So those are the two most common types of cases the Supreme Court takes today, where the two different lower courts have disagreed

on a question of federal law, or where there's no disagreement, but the justices are of the view that resolving the question at the Supreme Court level is just too important to not take the case now. I'm sure you know that approval of the Supreme Court is at a very, very low point in history. Probably we pay more attention to the Supreme Court now than people did 100 years ago. I don't know that you can make an argument that my grandmother even knew one Supreme Court case. Maybe she knew Brown v. Board because that was the era she was raising her children in, and it had a transformative effect on America. But I don't know that the average American was like, well, what is the court up to in the 1940s, aside from

some of these really, really transformative cases? So there is, in my estimation, the information is more readily accessible because it's easy to find online. More people are commenting on it and sharing the information online, etc. And it seems as though the American public does not approve of this system. It doesn't approve of some of the justices, which that's a separate topic. I think the concept of a shadow docket, first of all, is poorly understood. The name, the shadow docket, makes it seem nefarious and intent. And the idea that they're out there just like constantly making calculated moves also gives this feeling, even if the calculated moves are completely benevolent. The fact that it's calculated gives some people

pause and makes them feel as though there is some kind of like grandmaster plan. And I don't like the way this is going. I don't like the direction it's heading or maybe the opposite. Maybe they love it. So what are your feelings about the overall public perception of the workings of the court? Does the shadow docket damage the court's credibility? I'm going to be a bit long-winded in my answer. I'm sorry in advance. But let me start by saying, I think part of the shift that you described in your question from our parents and our grandparents' generation to our generation, yes, is a function of media. But Sharon, part of it is also a function of the shadow docket, right? By which I mean, like, the Supreme Court 50, 75, 100 years ago was not deciding as a percentage of its decisions nearly as many socially divisive

cases. That, yes, there were cases like Brown versus Board of Education, but those were maybe three or four a year in a court that's deciding 150 to 200 cases, right? Those were like one or 2%, even of the merits decisions the court is handing down. Versus today, when the court, because it now has, since 1988, almost complete control. We talked before about how only one of the court's 58 decisions this term was a case the court had to hear. That now it's not just that it feels like the court is more invested in these big divisive topics. I think the data shows that it is more invested because the justices are, with all of this power to set their agenda, choosing an agenda that is injecting them into more and more divisive

contexts. The student loan program, right? That's controversial as a policy matter. There are lots of ways the court could have not taken that case. The affirmative action cases, right? The way the court took them, it actually jumped over the federal appeals court. So I actually think there's a connection here that we should articulate before even getting to the meat of your question. To the meat of your question, I don't think the shadow docket is inherently nefarious, just like I don't think the term is inherently nefarious. Shadows are not per se nefarious. They're just the natural consequence of having light sources obscured by objects, right? The problem is that I think there's a lot of distrust among lots of folks in the public and in the media, Sharon, partly because the stories about the Supreme Court that we hear so often

are so focused on the merits docket, where in the biggest, most visible cases, the justices are most often dividing along the conventional partisan or ideological lines. And one of the things that I really hope the book does is it suggests that, yes, there are problems with the shadow docket, but they're not actually the same problems. That the problems on the shadow docket are institutional, not ideological, that it's not six conservatives versus three liberals. It's a court that for most of its history was much more accountable to the political branches that now as an institution, both is less accountable and acts as if it's less accountable. And so I guess I'm trying to sort of suggest that

there are a lot of reasons to be critical of the current Supreme Court that don't sound in, that aren't limited to, that don't reduce to six conservative justices appointed by Republican presidents versus three liberal justices appointed by Democratic presidents. I'm trying to sort of suggest, yes, the way the current court uses the shadow document is a problem, but not because of who the current court is. That it's a broader issue and it's not about the current makeup of y'all. It is like a bigger issue than that. And just as importantly, and it's not about the bottom lines, right? Like, I mean, we are so accustomed

to thinking about the court as a function of whether we like or dislike the bottom lines, right? Like, so whether we're pro-abortion or anti-abortion informs our assessment of how the court handled Roe, right? Whether we're pro-affirmative action or anti-affirmative action colors our assessment of what the court should have done in the affirmative action cases. And I think that that's both woefully incomplete because we're not looking at the court in institutional terms. And I actually think, Sharon, it perpetuates a really dangerous

way of looking at the court. If we think that everything it does is guided by ideology and partisanship, as opposed to if we look at the court as an institution, where we might think, even if we like the bottom lines, there are problems with its relationship with the other branches. Or we might think if we don't like the bottom line, we actually still think it ought to have all this. At its core, part of the story the book is trying to tell is that recent behavior by the court, even though it's typified by the conservative justice because they have the votes, is really a reflection not on anything about the conservative legal movement or conservative legal philosophy, and is really much more about the sort of the dangers of a court that has become increasingly unchecked.

Dangers that I think we would see just as much if the politics were flipped and we had a six to three liberal majority of justices. Yeah. So what you're saying is the issues are with the structure and not with the decisions themselves. And you can agree or disagree with the decisions themselves. and not with the decisions themselves. And you can agree or disagree with the decisions themselves. And there is still an issue with the structure and the function of the way the court is currently operating. And I think, I mean, what's interesting to me is like, we're used to having that conversation in the context of the political branches, right? So we've had for decades,

debates about executive power that have transcended whether the current president is a Democrat or Republican, you know, should the president have the power to unilaterally engage in drone strikes? That's a debate that we've had across multiple presidencies, you know, George Bush, Barack Obama, Donald Trump, I mean, like that debate has not focused on who the president is. We're used to having the institutional conversation when we talk about the other branches. And I think one of the things that the book is really trying to push both lawyers and non-lawyers, I'm trying to speak to everybody, is that this is a conversation that we used to have about the court and that we've stopped having. And I think that that actually is

a real problem, both because it is obscuring a lot of problems that, Sharon, we might all agree are problems, and because it means that the conversation we are having is pitched in the most partisan and ideological terms that could possibly be because it's focused on the most overtly ideological feature of the court's work. Y'all afraid of ghosts? How about ghost peppers? It's the moment you've been waiting for. The ghost pepper sandwich is back at Popeye's. A buttermilk battered chicken breast served on a brioche bun with barrel cured pickles. And here's the best part.

It's topped with a sauce made from ghost peppers and on show chilies. If that doesn't send a chill of anticipation down your spine, nothing will. Get your ghost pepper sandwich today at Popeyes before it ghosts you for another year. Interior Chinatown is an all-new series based on the best-selling novel by Charles Yu about a struggling Asian actor who gets a bigger part than he expected when he witnesses a crime in Chinatown. Streaming November 19th only on Disney+. I think one of the issues, Steve, is that even if people agree, like, yeah, we should be having these conversations, just like we debate the filibuster in the Senate, just like we are talking about these other structural issues, like to what extent should a president be able to use the executive order to create government programs or student loan forgiveness or whatever, even if we are willing to engage in those conversations, which I think, you know, a lot of people in good faith are. The issue with the court is that people feel completely powerless to do anything. We might be able to be like, listen, that guy is a bad guy,

and I'm not voting for him in Congress next time. I don't like him. He's not good for America. We might be able to make those kinds of changes. That is not true with the court. And so it really, really irks people. And it feels like there's absolutely no power of the citizenry, that it's not we the people, it's the nine. It's not us. And I bet this is not the first, I'm not the first person to express this feeling to you. But I think some people wonder like, to what end should we be having this conversation when it feels like there's absolutely nothing we can do? That's exactly why we should be having this conversation, because there's a lot we can do.

My favorite example of this, I think we can probably all agree that the Supreme Court would have a heck of a time operating without a budget if it had no money. I mean, the Constitution requires Congress to pay the justices their salaries, but nothing else. And so if the Supreme Court's budget were just the nine salaries of the justices, Congress would be fulfilling its constitutional obligation. Have fun with no clerks, have fun with no building. Did you want air conditioning? Do you want computers? I mean, right? But the reason why I start with the budget is because this is not something Congress takes away. This is something Congress gives. Right. Congress every year appropriates money to the Supreme Court for its budget. Congress could stop doing operate. And if we go past that, the court is dependent upon Congress for its docket. Congress has the power to say which cases the court can

and can't hear. The court is dependent upon Congress for having a building, as you say, right until 1935, the court sat in the Capitol in case anyone needed reminding of who was in charge. And so, you know, I think we feel powerless, Sharon, because we have forgotten all of this. And we have forgotten that the way the Constitution is set up, and this is not a matter of debate among liberals and conservatives, this is just an objective fact. Congress has the big stick when it comes to not the substance of what the Supreme Court does, but basically the sort of the institutional features of its work. And there have been times in our history where Congress has used that stick. Congress basically prevented the court from even sitting in 1802 because it was mad

at the Federalists. In 1869, Congress prevents the court from deciding a massively important case about Reconstruction because Congress was worried the court would decide it wrong. Congress in 1964 gave every federal judge a significant pay raise, except the Supreme Court justices, because Congress was mad at the justices. And so I think part of the problem, Sharon, is that we don't think about that anymore. We don't ask our representatives, hey, are you going to fund the Supreme Court? And so I guess we're so fixated on, are we voting for a Democrat or are we voting for a Republican, that we've stopped voting for institutionalists. There was a time not that long ago where there were members of Congress who were institutionalists

first. You had liberal Republicans, you had conservative Democrats. And now that we have sort of everyone in such neat, tidy camps, it's the institutional part of that story that's fallen by the boards. That doesn't mean it can't be resuscitated and revived, but we've got to be the ones to do it by having conversations like this. Let's say we have this conversation and we all agree that the shadow docket is like, yeah, that this is not how this court should be optimally functioning. And we agree like, yeah, okay, well, we can pressure Congress to not fund them until they make changes, until they fix it, right? Whose responsibility is it to fix it? Is it Congress

passing the law to say, here is how you need to work? Is it forcing the court to enact its own rules about things like ethics and merits cases? And whose responsibility is it to fix the structural issues within the court? So, I mean, this is going to be a cop-out of an answer, but both of them. And what I mean is that they have both overlapping and independent responsibilities. So no matter what, I think Congress really ought to reassert a modicum of institutional control over the court. It can be really, really low-hanging fruit, like just giving the court a few more categories of cases it has to hear. It can be slightly higher-hanging fruit, like telling the court when it can and can't grant so-called emergency applications, you know, when a party is trying to get a stay up to block or unblock a lower court decision, that I think has to come from Congress. But, right, I think the justices can go a long

way toward both facilitating those kinds of reforms and also mooting the need for more aggressive reforms if they show a bit more responsiveness. And something the book talks about toward the end is actually, at least on the shadow docket side of things, the court has been a little responsive to critiques. I mean, we have seen a bit of a shift. There's a real uptick in what the book is very critical of vis-a-vis the court's behavior, especially in emergency applications in 2020 and 2021. And we've seen the court walk back from that brink, especially Justices Kavanaugh and Barrett, at least at the same time as there was a massive public pushback, right, against the

court's behavior. So I guess, to me, the way that we have changed is first we show the court that there is bipartisan consensus that some of these structural behaviors are problematic, that there's a bipartisan consensus that the court should be part of a coordinate federal system, not aloof from it. But also having Congress remind the court directly that the court is not its own keeper and that, our separation of powers works best, if I can be a real nerd and quote Madison for a second, when ambition is made to counteract ambition, when each branch is pushing at the limits of its power against the other branches. We have plenty of ambition on the Supreme Court right now. We've got plenty of

ambition in the executive branch across different presidencies of different parties. There's so little institutional ambition in Congress right now that even though the court could do a lot of this itself, I think the long-term solution is for Congress to reassert more of the control that it exercised for most of the first 200 years. One of the cases that I was just talking about with some people is about this concept of legal innocence and how being legally innocent is not enough to get you another hearing anymore. You know, like if people, if you're a court watcher, the case is Jones v. Hendricks, that legal innocence isn't good enough. That's just like one example, aside from those highly, highly divisive issues. Most Americans, I would argue that 80 plus percent of Americans think it's really, really wrong to imprison people who are innocent, right? Like, we should all, does not matter which name you checked in the voting booth. We should all want a justice system that imprisons the guilty and does not imprison the innocent. That seems really foundational, right?

Sometimes we get it wrong. Yes, it's an inevitability in a system run by humans. But we should work to correct our wrongs, right? I think most people would agree with that, that we should work to correct our wrongs. Right. I think most people would agree with that, that we should work to correct our wrongs. And it seems like that the court is saying, no, what's most important is the procedures were not followed. The procedures were not followed. You used up all of your chances. You used up all of your tries. And I'm sorry, you will now have to remain in prison, even though you are legally innocent. And of course, I'm over-exaggerating it. Not by much. I'm paraphrasing.

But that's the gist, right? That's the gist of Jones v. Hendricks is like, you used up all your chances. Doesn't matter if you're legally innocent. Jones is such a great example, Sharon. I have a weekly newsletter about the Supreme Court, One First, that's on Substack. And I wrote about Jones a couple of weeks ago. And the title of my piece about Jones is The Unnecessary Cruelty of Jones versus Hendricks. What I find striking about Jones, without getting too far into the very dense technical weeds, is that even if you believe that the relevant statutes bar Mr. Jones from getting out of prison, even though he was legally innocent. It seems to me that it would have been easy enough for those same six justices to devote

the last couple of paragraphs of their opinion to an invitation to Congress to fix this. Like, our job as judges is to apply the law. You've written the law. We think the law is bad. The law is bad. Fix. Hey, Congress, fix the law. And we have an example. I mean, right. The Justice Ginsburg's dissent in the Ledbetter case led to the Lilly Ledbetter Fair Pay Act to fix a discrepancy in pay equity at the federal statutory level.

And instead of a couple of paragraphs that say we don't like this result, but we're not policymakers. And it seems to me that like, that's the mentality. We shouldn't even reflect on whether this is unfair and suggest Congress should fix it. That's a symptom of this disease, of the court being insulated from even basic human decency, where the court could, with perfectly clean hands, say, hey, we don't like this interpretation of the statute. We think Congress should fix it. But that's Congress's job. And there's none of that in Jones. And that, to me, was the most indefensible part. I have problems with the statutory analysis, too. But let's assume that they got the statutes right. Why not admit that the statutes

as they've read them are grotesquely unfair? This idea that it's fine. There's nothing wrong with this decision. That attitude of we don't care about the effect of our orders. What we say, it doesn't matter if it affects you perversely. It does not matter to us. That's the overall tone and spirit that some, not all, that some of these decisions are written with it, to your point. And they could have easily thrown in two or three sentences or a paragraph at the end of like, listen, this is a bad law. They could have said people who are legally innocent

should not be imprisoned. But the way that it's written, you have tied our hands. You've tied our hands, Congress. You need to fix it. Right, shame on you, Congress. Yeah, that's right. And then there could have been public pressure on Congress to fix it.

But instead, the public does not know that that is a problem that is Congress's to fix. And this goes back to the sort of the broader theme that I think we've been touching on throughout this conversation, which is in a world in which the court understood itself and viewed itself as being in this ongoing interbranch dialogue with Congress about its docket, about the law, about the structure of our government. I think that kind of denouement to the opinion would have been much more likely. One other really sort of trite example of this. So, you know, every December 31st, the Chief Justice gives this year-end report on the

state of the federal judiciary that usually gets no attention from anyone other than the Supreme Court Press Corps. The practice was inaugurated by Warren Berger in the mid-1970s in sort of typical Berger fashion because Berger wanted to have his own State of the Union. And so he wanted to elevate the visibility of the Chief Justice. But it had a very specific substantive point, which was it was Berger's wishlist to Congress. Like, hey, Congress, here's what we need for next year. was Berger's wishlist to Congress. Like, hey, Congress, here's what we need for next year. And that practice continued for the rest of Berger's tenure. It continues for all of Rehnquist's tenure as chief justice. And it's only in 2009 that John Roberts stops asking for stuff. And that's just another sort of illustration of the phenomenon that the book is trying to put

into context, that there is a direct correlation between a court that has removed itself from the inner branch conversation and a court that has come to play such an outsized role in so many features and facets of our public lives. And that whether we might like the bottom lines that the current court is reaching. We might hate them. The point is that there ought to be at least some consensus that institutionally, this is not the healthiest thing for our system. I'm picking up what you're putting down, Steve. I get it. And I think the average American absolutely does too. And I think they can understand this need for a broader conversation. Because even if you're like, yes, I'm super pro-life, love that decision.

I'm against race-based affirmative action, love their decision. Even if those are all of your opinions, it is still important to have healthy institutions in the United States. And we cannot have them if we are just basing all of our conversations on ideology, you can ideologically agree on something and the institution can be unhealthy. They're not mutually exclusive. And if people take nothing else away from the book, or at least from our time together today, that is the best summary of the bottom line. Thank you so much for being here today.

We could probably keep talking for four or five hours. I could be like, what about pork producers v. Ross, Steve? I have so many things I want to talk about. But we will not subject the listener to our many hours long conversation about that. This just means you have to have me back sometime. I will. We shall. This will not be the last time we meet, Steve.

Thank you so much for being here. Thank you for having me, Sharon. This was a lot of fun. You can buy Steve Vladek's book, The Shadow Docket, wherever you like to buy books. Got to get my plug in there for bookshop.org. And you can also subscribe to his free newsletter called One First. It's just like stevevladek.substack.com. He sends out a weekly newsletter about the Supreme Court.

If this topic was interesting to you today, I bet you would love to subscribe. I'll see you soon. This show is researched and hosted by me, Sharon McMahon. Our executive producer is Heather Jackson. Our audio producer is Jenny Snyder. And if you enjoyed this episode, would you consider leaving us a rating or review on your favorite podcast platform? That helps us so much.

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