Strict Scrutiny - Shining Light on the Shadow Docket

Episode Date: July 24, 2023

Leah, Kate, and Melissa talk to Steve Vladeck about his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. From abortion bans to immigration restrictions, COVID orders and death penalty cases, the Supreme Court has taken to changing the law in quiet.Order The Shadow Docket from Bookshop.org. Code STRICT10 gets you 10% off!Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Littman. And we are delighted to be joined by one of our favorite repeat guests,

the law professor with a Twitter account, Professor Steve Vladek at the University of Texas School of Law. Welcome back to the show, Steve. Thank you for having me. Yes, Karen even made a t-shirt that I'm a professor with a Twitter account. I saw it. I love it. I feel like- You should have worn it to our taping. Was it part of the Kaczmarek collection, all with K's? Yes, it is one of the featured t-shirts in the Kaczmarek collection. The other one is barefoot and pregnant. I survived Roe versus Wade. I was going to wear it to teach today, but, you know, we have Fifth Circuit judges who

teach as adjuncts in the law school. And so I thought maybe I'd fight with them on Twitter instead. I mean, Steve, I think you should just go full goblin mode. Like, wear the shirt. Just do it. Leave them a complimentary shirt. Indeed. Go to the Fifth Circuit Conference wearing that T-shirt.

Exactly. I mean, get a blazer. You're fine. It's very Sonny Crockett. It's great. Give them a hoodie that says 1-800-BOYS-LYE. I'm sure they'd love it. Man, these are the challenges that teaching at a law school that sits in the Fifth Circuit

entail. Wow, Steve. And for listeners who did not catch that initial reference, the law professor with a Twitter account that was actually a line in an opinion by Judge Matthew Kaczmarek, not in the Mifepristone case, but another case in which he sought, I think, to derisively refer to Steve that way. But we actually thought it reflected a great deal of respect and admiration. All press is good press.

In that spirit. All press is good press! In that spirit. All press is good press. I just want to know if I can put that in my annual report since you didn't specifically cite to me, right? Like, does that still get

an entry in the what did I do as a law professor this year? Oh, absolutely. Oh, you definitely, that's a citation from a noted court. Yeah, yeah.

Apparently a court that makes nationwide policy. That's right. So back to the topic at hand. And listeners of this podcast will remember that Steve has joined us previously, including to talk about Texas's SB8. That's the bounty hunter law that shut down abortion access in Texas even before the Supreme Court overruled Roe versus Wade and other matters. But the occasion for this episode is Steve's new book, The Shadow Docket, published in May with Basic Books. As Heidi Montag has said, congratulations to anyone who has written a book. Thank you, guys. We're glad to have you, Steve. Congratulations on the

book. Heidi Montag, Spencer, everyone joins us in congratulating you on this feat. But regular listeners of Strict Scrutiny have heard us talk about the shadow docket a lot. And it is a really important issue that's come up many times in many different significant Supreme Court matters. So we're actually really excited to be able to do a deep dive on this topic, and also to join it to the celebration of Steve's book, which everyone should read if they want to better understand the trajectory of the current court. So let's start with the basics, Steve. What is the shadow docket, or as some people call it, the emergency docket? Yeah, they call it wrong. So the shadow docket is this, you know, evocative shorthand that, as you guys know, Will Bode from Chicago started using in 2015 to refer basically to everything the Supreme Court does other than merits decisions.

So other than the 55 to 60 signed decisions and argued cases that we get at the end of each term that, you know, are big unto themselves. And, you know, Will's insight, which I have sort of shamelessly co-opted, is that there's a lot of important stuff that happens in the shadows, in the literal and metaphorical shadows, whether it's grants or denials of certiorari, whether it's grants or denials of emergency relief, even things that we might think of as totally anodyne, like when a case is scheduled. You know, the timing of the affirmative action cases was actually a bit manipulated so that they'd be heard this term as opposed to last term. The remand in the SB8 case going of us, on law, on government actors, on everybody. And your answer started to allude to this, but do you want to take another beat to talk about why it is important to understand this aspect of the court's work, the shadow docket?

Like a book is a major undertaking. Why was there a book here and why did you decide to write it? Yeah. So the book actually tries to suggest that you can't understand the court at all without understanding the shadow docket. So even if you just thought the court was the sum of its merits decisions, that is informed and influenced by the shadow docket. The justices have almost plenary control over which cases they hear. They have plenary control over which questions they decide within the cases they hear. We know that they sometimes rewrite the questions presented. That was like in Bruin in the Second Amendment case. Sometimes they answer a question other than the question presented, Dobbs.

And so, you know, even the stuff that we think of traditionally as what the Supreme Court does can't fully be appreciated without the shadow docket. But I also think, and I wrote the book because I have this view that it's not just essential to understand the merits docket to understand the shadow docket. It's essential to understanding how the Supreme Court has become so powerful. We sort of understand viscerally that the Supreme Court plays this outsized role in contemporary public policy debates. The book tries to explain how that happened and how it was not inevitable, how it was not, you know, true for much of the court's first 101 years, even 135 years of existence versus today. And a lot of that is not just what's happening on the emergency docket. A lot of that's what's happening behind the scenes in every other moment that the Supreme Court is conducting business. So the goal of the book is like, hey, smart people who care about the Supreme Court. Like, here's a whole different

side of the court we never talk about that's actually just as important, if not more important, in understanding not just where the court has come from, but why what the current court is doing is so problematic. So your answer already alluded to this, which I interpreted as kind of like the shadow dockets or the Supreme Court's villain origin story. But kind of before we dive into the here and now of the shadow docket, it's important to talk about the historical development of the Supreme Court's docket in general and the shadow docket in particular. So maybe we can do that first before we get to kind of what the shadow docket has become. So you talk about the evolution of the Supreme Court's jurisdiction and how various changes in the court's jurisdiction gave the court a bunch of additional authority.

So would you mind sharing some of what those changes were, things that are now the case that didn't used to be the case that gave the court additional power? It's not just that the changes gave the court this power. It's that they were designed to. So the villain or at least the antihero in the story is William Howard Taft. Do not say a word against him. I love William Howard Taft. I'm just kidding.

So do I. He's the reason I won the fifth grade history B because the question was which president has also been a chief justice. They thought they would stump me. I was like, bitches, I know this. And I won. So I have a soft spot for him. So what most people know about Taft, right, is the apocryphal story that he got stuck in a bathtub.

What I think very few people know about Taft is just how essential a role he played in reshaping what the Supreme Court does. And this actually starts while he's president. I mean, he's giving speeches while he's president about making the Supreme Court more powerful, partly because he didn't really want to be president. He wanted to be chief justice. When he gets on the court in 1921, like he sees a direct path to giving the court more autonomy and more independence and more power. And the path is certiorari. The path is sort of taking this very technical sliver of authority that Congress had given the court for the first time in 1891 as like a docket management device and actually having that expand to cover most of the court's docket, where his idea was that if the justices could pick and choose which cases they would hear, they could actually take

much more of a holistic national approach to forming constitutional rules, to articulating constitutional principles. And so it's really a transformation of the Supreme Court from a Supreme Court of Appeals that's just the last court in the vertical hierarchy to a constitutional court that really is meant to exist to some degree above and apart from the fray of ordinary judicial business. And so it's Taft who leads the reforms through Congress. The Judiciary Act of 1925 is known colloquially as the judge's bill because it was Taft and his colleagues on the court who were most visibly and actively advocating for it. It's Taft who lobbies Congress to actually appropriate funds so the Supreme Court gets its own building, right? And Taft is the one Congress to actually appropriate funds so the Supreme Court gets its own building.

Right. And Taft is the one who picks the architect Cass Gilbert. And it's Taft who, even once Congress implements many of these reforms, goes further and actually starts the practice of limited grants of certiorari, where the court only agrees to take up part of a case and only agrees to answer specific questions within the case. And the sort of the whole gist here, the whole idea was certiorari equals power, because certiorari means we can pick and choose what we want to do, and we can avoid the stuff that we think is beneath us. And that's really a story about the 1920s, much more than it's a story about anything that happened before that. Yeah, it really is, as your answer just made clear, and the book makes it even clearer, Taft is the architect of the modern Supreme Court in so many ways in that he's lobbying for a separate building. Before that, the justices just met in a room in the Senate that you can still visit. It's kind of cramped. And he lobbies for and then both as

president then gets money appropriated for as chief justice, this unbelievable marble palace, and then goes about ensuring that the justices who inhabit it will wield just this tremendous control and power from that seat. So he's working in all of these dimensions. And the result in some ways is today's unbelievably powerful Supreme Court. I mean, what's remarkable about Taft is not just how successful he was, because he's inordinately successful, but also that a lot of what happens in 1925 is Taft outsmarting Congress, right? So he's very coy about some of these developments. There's no discussion in 1925 about limited grants of certiorari. There's

no discussion about sort of the jurisdictional statement that's going to make it easier for the court to duck even the cases it still has to hear. He keeps that up his sleeve. What's crazy about the story is that by 1988, which is the real sort of second moment in the play, this is all out in the open, right? The court has been doing limited grants of certiorari for 63 years. It's been using jurisdictional statements to avoid even mandatory appeals. And when the court goes back to Congress and says, in 1925, you gave us discretion over federal appeals. Now we want discretion over state appeals. Congress just says, sure, as opposed to, well, wait a second, you snookered us last time. You're not going to fool us again. I mean, Chief Justice Rehnquist

says to Congress in 1988, if you give us certiorari jurisdiction over state courts, we will grant more cert petitions from state courts. That was never true. Like there wasn't a single year after 88 where the court did that. So in 1925, it's a transfer of power that operates at least somewhat behind closed doors. Right. By 1988, it's Congress just sort of giving in and giving up, I think, to a large degree. So I just want to spell out and define two quick things that we've been talking about in the conversation just for ease of listening. One is certiorari jurisdiction versus mandatory jurisdiction. And certiorari jurisdiction just means it is discretionary in the sense that, you know, the Supreme Court will pick and choose whether to hear a case at all and the parts of the

case that it will hear, whereas mandatory jurisdiction are ostensibly cases that Congress has required the Supreme Court to review. But as Steve's reference to jurisdictional statements indicates, even in those mandatory jurisdiction cases where Congress has directed the court, you actually need to decide this. The Supreme Court has said, well, we can do that by not issuing an opinion at all and just saying, you know, summarily affirmed or something like that. And so they have basically accumulated for themselves the power to set their own agenda through all of those different techniques. And just to sort of put one more point on that, I mean, it's remarkable not just because of how it transforms the court's docket.

It's remarkable because it also should transform how we talk about the court's docket, right? It's one thing when the Supreme Court is hearing 300 cases a year that it has no control over, where the data set is being formed by the courts of appeals, right, or by some other actor. When we talk about the court socket, when the media reports on like the aggregate statistics from the term, you never hear about how the denominator was carefully curated by the justices themselves in ways that actually hide issues in the lower courts, in ways that obfuscate just how, you know, the court was unanimous in 22% of the cases.

That's a stunningly low statistic for cases they all want to hear, right? I mean, so I guess it's just like, it's a good example before we get to the emergency docket and the sort of recent events of just how skewed much public discourse about the Supreme Court is because we don't talk about how much power the court exercises behind the scenes and how much discretion it exercises. We know so little about the cert process. My favorite example of this,

right, the rule of four, the idea that it takes four justices to vote to grant certiorari is not written down anywhere. It's universally accepted by everybody. If a law review editor asked you for a source for the rule of four, there isn't one. That's just a microcosm of the broader problem. This just in, we are bringing back our OG, I respectfully dissent tea and sticker in honor of a very disrespectful Supreme Court session. So head on over to crooked.com slash store now to get yours. I love all of the sort of modern day repercussions of these moves that Taft made to embolden the court. But I also want to go back

and talk some more tea about him because he's a really fascinating character. As you say, get stuck in a bathtub that by itself is notable. As Kate says, he moves the Supreme Court out of the basement of Congress where it was basically functioning as a jurisprudential Cato Kaelin. He actually goes to great lengths to become the Chief Justice. This is his lifelong ambition, even when he is President of the United States, what he really wants. He's kind of like, I know I'm acting, but what I really want is to direct. He's like, I know I'm President, what I really want is to be the Chief Justice. And he finds a way to do that. And it's absolutely kind of amazing. And I'm just going to set this out there. I think he is the Camilla Parker Bowles of the Supreme Court. He played the

longest game ever. And tell us the story because I think it's amazing. About a year and a half into Taft's presidency, Chief Justice Melville Fuller dies. And so that creates a vacancy in the center seat in the Supreme Court, the thing Taft has aspired to his whole life. He even turns down, by some accounts, as many as two or three invitations by Teddy Roosevelt to an associate justice seat, right, during the TR administration. So Taft now has a problem, right? Here he is, he's 53, he's president of the United States, but he really wants to be chief justice and he has to appoint a new chief justice. So he comes up with the craziest solution. He looks at the current court and he picks one of the oldest then sitting justices, Edward Douglas White, who's also Republican. So he's on the team and he elevates White to chief justice, which, by the way, is breaking in a huge way from tradition. To that point in American history, there had been no Chief Justice who had been elevated

from the existing rank of Associate Justice. Only John Rutledge, who had left and come back, had served in both capacities. So Taft breaks from tradition because White is 65. And I guess Taft's theory is like, you know, I've got 12 years on him. And the craziest part of all of this is that it worked. Um, so White tells people that he's going to resign the next time there's a Republican president in favor of Taft. And White makes it through all eight years of Woodrow Wilson's administration.

And then Harding was elected. White dies in May of 1921. And the coast is clear for Billy Taft to get his dream. I have a question. Do we have any evidence that Taft didn't murder White? I mean, this is just, it's lining up too well. Very convenient. No. This is how rumors get started. The marshal of the Supreme Court will conduct an investigation. She'll call up Taft and be like, did you do it? He'll say no.

And OK, I got it. But it's remarkable in any number of respects. It's a remarkable amount of foresight. It's remarkable sort of breaking Supreme Court conventions for shamelessly personal reasons. But also it's remarkable because somehow the MF-er pulled it off. Amazing. I love this. So we're not going to yet come to the present, but let's move forward a bit in time from the sort of Taft story that you were just telling to this anecdote that opens the book about Justice Douglas. And it's an important anecdote, and it involves Justice Douglas

granting a very important application only to see it later overturned effectively by the full court at Justice Marshall's behest. So maybe I'll just leave that invitation there. Can you just describe that incident and explain its impact on the court's practices? Yeah, I mean, so this is the Cambodia bombing dispute in 1973. I didn't just start the book with this story. Actually, the proposal that was the book before it was a book starts with the story because I think there's so muchcalled in chambers by the relevant circuit justices, by the individual justices who were assigned to handle procedural matters coming out of a particular court of appeals. So in the summer of 1973, there's a whole sort of controversy over Nixon's continued bombing of Cambodia, the Ho Chi Minh Trail, et cetera, even after American troops

have finally been withdrawn from Vietnam, which happened in April of 73. This eventually provokes Congress to pass a funding cutoff where Congress says after August 15th, 1973, no more funds can be used to bomb Cambodia, basically. And Congresswoman Elizabeth Holtzman and a bunch of military officers sue even before the August 15th cutoff to say, but it's also not legal now. Like, we're cutting off the funding as of August 15th, but, like, we don't think it's authorized today. And they get a Brooklyn federal judge, Judge Orrin Judd, to enjoin the bombing of Cambodia, the first time in American history that a federal judge enjoins an ongoing military operation. There hasn't been a second. But Judd stays his ruling. He freezes it for a couple days

in case DOJ wants to appeal and take it up to the Second Circuit. DOJ does that. The Second Circuit issues a stay. It freezes Judge's ruling before it goes into effect, at which point Holtzman goes to Marshall in his capacity as circuit justice

for the Second Circuit. Marshall holds oral argument in his chambers. He writes an opinion. I mean, this is actually how it used to go in the emergency context. And he denies the application to vacate the stay. And I think a fairly remarkable act of institutional integrity. He says, you know, I am sympathetic to the applicants. I have real concerns with the bombing. But my job as a circuit justice is to rule how I think the full court would if it were here. And I think the full court would stay this, would not vacate the stay. I think the full court would leave the injunction on hold. Therefore, I'm bound to do the same.

It would have ended there. But the ACLU lawyers who were representing Holtzman and the soldiers decide to try Justice Douglas. So they hop on a plane, they fly across the country, they track down Douglas in his cottage up in the woods in Yakima or outside of Yakima in Goose Prairie. Douglas at this point, you know, there's no phone in the cottage, so you literally have to drive up there and knock on the door. He's with his, I think this is now his fourth wife. It's his fourth wife, yes. The youngest of all of the Mrs. Douglas's. Who I think was a 3L when they met, if I remember the history here. So there's some awkwardness on that front. Yeah, sounds totally normal. Totally normal. Well, so does, you know, knocking on the cottage of a Supreme Court justice and,

you know, first thing in the morning and saying, hi, I'd like you to stop an ongoing military operation in Cambodia. So Douglas, he sort of tells the lawyer, come back in a couple hours. There's a prior episode where when the lawyer came back, Douglas had nailed an order denying relief to the tree outside his house. Not very environmental for Mr. Environment Justice Douglas, but c'est la vie. This time around, Douglas says, all right, you've convinced me to hold a hearing. And so he commandeers the nearest federal courthouse, which is in Yakima, about 40 miles away. He holds a hearing the next day. And then after the hearing, while he's literally driving back up to the cottage, he stops at a series of roadside pay phones to relay

back to his clerks in Washington the details of an order basically vacating the Second Circuit stay, putting the injunction back into effect, and cutting Marshall, in effect, out of the loop. That order comes down at 9.30 in the morning on Saturday. Six hours later, Marshall responds by granting the government's application to Marshall to stay the injunction himself. What Douglas had done was that Douglas had vacated the Second Circuit stay. Now Marshall imposes his own stay.

And Marshall stays the injunction. He sort of repeats the reasoning that the Second Circuit had used. But then he says, and this is remarkable foreshadowing, I've been in touch with the other seven members of the court. And they all agree, basically saying like, you know, hey, Douglas, stop. Douglas files a dissent from Marshall's order, which, by the way, I'm not sure how one justice can dissent from another justice's in-chambers opinion, but this is Douglas. He did what he wanted. And Douglas's dissent, I think, actually really is prescient in identifying some of the problems, not with what Marshall had done, but with Marshall basically saying, I have a quorum because I talked to the other seven justices by telephone. And he complains about the lack of an opportunity for the justices to discuss the issue,

the extent to which there's no ability to form a consensus about the opinion of the court, the extent to which there wasn't an opportunity to hear from other interested parties. His second opinion in Holtzman v. Schlesinger is almost like a preview of coming attractions. He basically sketches out all the reasons why it's not ideal for the court to operate in the shadows. And yet what happens after that is the court actually does more of it. The court sort of gravitates toward doing more emergency applications en banc, that is to say before the full court, without explanation, without argument, without meaningful opportunities to be heard. So what Douglas is complaining about in August of 1973 actually quickly becomes the norm for the court's behavior once we have the reinstitution of the death penalty in 1976.

That seems like a good place to kind of pick up because later chapters focus on how the court's shadow docket has changed over time. And you locate a lot of modern day practices regarding the shadow docket in the evolution of capital punishment. So can you give us sort of a synopsis of how that happens over time and how the death docket creates the shadow docket

that we know? Sure. I mean, all three of you know this from clerking. There was a long period of time where the Supreme Court, the shadow docket at the court was the death docket and where the experience with emergency applications was almost uniformly confined to emergency applications in capital cases. The death penalty is sort of prov whole bunch of constitutional constraints on it. Substantive constraints on the capital murder statutes and procedural constraints on how capital sentences can be imposed, on the rules for lawyers, on every single phase of the case.

Those constraints can be litigated. And the states start setting very aggressive execution dates where the only way to litigate those constraints is through emergency applications, is through applications for stays of execution. So much so, so just as a data point, in the October 1960 term, the court hears a total of four emergency applications in capital cases. In 1983, it's 83. And the reaction to those floodgates is basically these sort of procedural shifts that we're seeing today. One, the court starts doing all of this stuff en banc. There are no more in-chambers arguments after 1980. There are very few in-chambers opinions. And just to explain, like en banc, that means like the full court is making the decision rather in chambers by one justice versus another. So just, yeah. That's right. Yep. So one of the other things the court starts doing, right, is before 1980, when the court would rise for summer recess, it would formally adjourn

so that the full court couldn't even act over the summer. Starting in 1980, the court very, very quietly shifts its rules so that now it's actually a continuous term where the full court is always in session so that the full court can rule even when the justices are scattered to hell and gone. And so we see sort of overnight the rise of orders by the full court that are unsigned, that are unexplained, and that have these really significant effects because they are either staying executions or they are unstaying executions. We see the rise of stealth dissents because they're, you know, borrowing from the certiorari context, the justices assume that they don't have to record a dissent publicly, even when we know whether from archival records

or from anecdotal reporting that there were dissents behind the scenes. And this all, guys, becomes hyper-normalized in the death context, where by the 1990s, by the 2000s, you know, no one's really saying, hey, this is not how we should be processing emergency applications. At the same time, everyone assumes that it's all part of this death is different mentality, that it's a unique series of procedural accommodations the court has arrived at to deal with a unique problem so that, you know, there's sort of no fear of it spreading over into other contexts. And say what you will about capital cases. I mean, obviously, the consequences are enormously important to the prisoner, to the victim's family, and to the state. But the broader legal significance of whether a particular execution is or is not stayed is typically fairly modest versus what starts to happen in the 20-teens, where the same pathologies, the sort of the full court, unsigned, unexplained, light process rulings start to seep their way into areas that have far broader consequences.

The Clean Power Plan, which the full court blocks in early 2016 by a five to four vote with no opinion. It's behavior that had been normalized on the death docket for the better part of 35 years, but that slowly starts seeping over into disputes with more nationwide policy and factual implications. Can you talk to us a little bit about the evolution of the so-called courtesy fifth vote in death cases and how more broadly that sort of evolution affected the shadow docket? Yeah. So, I mean, one of the weird phenomena that happens as the full court is faced with so many of these applications is that you have cases where there might actually be, and there often were,

four votes for Sushirari to take up a death row inmate's claim, whether it's a claim about his counsel or a challenge to the method of execution or something about the prosecutor's statements at the closing argument in the trial. But maybe there wasn't a fifth vote for a stay because the voting thresholds, which again are not written down, are different. And so in the mid-1980s, in response to a couple of pretty visible cases where the court grants cert but denies a stay so that the prisoner is executed while the case is on the docket, which moots the case. Justice Powell, who's very late in his career at this point, who's aging, who's very, very ill, inaugurates this practice of what he calls the courtesy fifth, where he's going to provide a fifth vote for a stay in any capital case in which four of his colleagues have voted for Sarsha Rari

to avoid the unseemly appearance that the court is going to let someone execute someone whose case is already on their docket. And from Powell's perspective, that's not just a gentlemanly thing to do as the collegial Virginian gentleman that he is. It's actually honoring the rule of four, right? It's actually living up to Taft's promise that four votes would be enough to effectively get a case onto the docket. What's telling about that is that there's some maintenance of the courtesy fifth practice, although it's often honored in the breach. Throughout the 1990s and 2000s, John Roberts at his confirmation hearing in 2005 sort of commits to the courtesy fifth practice, but it seems to be sort of, well, it was already, I think, waning even when there were still four

Democratic appointees on the court who would often vote for stays and for cert in capital cases. Now that there aren't even four, you know, what we've seen, especially across the October 2022 term is just denials of states of execution without even dissents. We're at a point now where the courtesy fifth, if it was still alive, is sort of mooted by the fact that there isn't even a fourth. So I think some of the additional attention that the shadow docket received was precipitated by something that happened on the death docket, and that's the court's treatment of an issue that was

initially raised in the case Dunn versus Ray. So could you remind listeners what that issue was and why the court's treatment of that issue in that case and some others raised some early concerns about the shadow docket. Yeah, I mean, so this is February 2019. And Dominique Ray is an Alabama, was an Alabama death row inmate who wanted a Muslim imam in the execution chamber with him to basically pray with him as he was, as the sentence was being administered. There are pretty good arguments that the Alabama procedures, I mean, they're very good arguments that the Alabama procedures discriminated against him on the basis of his religious beliefs, because at the time, the way the structure was set up, if he wanted a Christian chaplain in the execution chamber, he could have had one,

but not an imam. And so he basically seeks emergency relief, not to actually preclude his execution, but merely to postpone it, right, for long enough for Alabama to get its act together. And what's remarkable about the case is not just that the court denied the application five to four, but that a couple, about six weeks later, there's a Buddhist prisoner in Texas who raises a remarkably similar claim, and this time around the court grants it. And, you know, Justice Kavanaugh writes this somewhat sort of, how do I say, wishy-washy concurrence in the Buddhist case, saying this time around we have fewer reasons to be worried about the prisoner waiting until the last minute to bring his claims. But that really didn't seem to explain

the cases. Justice Kagan's dissent in the Alabama case, Dunn versus Ray, had talked about how Dominique Ray had tried to bring his claims in a timely manner and how the Alabama prison procedures were actually getting in the way of his ability to do that. It looked, right, I mean, it looked to all outward appearances, like the court had ruled for the Buddhists and against the Muslim. And I think the court got a lot of egg on its face for that, not just from the folks you might think of as some of the usual suspects when it comes to criticizing the court, including perhaps the four of us, but even some conservatives. So I think that started some of the public attention about the sort of the court's seemingly inconsistent behavior on

the shadow docket. I like to think that, you know, the first piece I wrote about it, which was published by the Harvard Law Review in November 2019, which is about how the Trump administration, I think, had used and abused the shadow docket, also helped to bring at least some attention to it. So it starts entering the consciousness, I think, right around then, right? Whether because of the death cases, the Trump cases, or some combination of both of them. Yeah. And I mean, actually, one point of intersection between those two were the executions of federal prisoners very late in the Trump administration. And that, I don't think actually got as much public attention and scrutiny as it warranted. But I do think it still was an incredibly important moment in sort of the

recent shadow docket. So can you talk a little bit about those kind of episodes in those last months of the Trump administration? Yeah, I mean, it's a remarkable story. And my colleague Lee Kowarski tells it very, very well in a piece called The Trump Executions, which is in the Texas Law Review. The federal government, late in the Trump administration, announces that it wants to reinstitute the federal death penalty. And between July 2020 and January 2021, the government successfully executes 13 federal prisoners. This is after it had been 17 years without a federal execution. And actually, if you go back 60 years, from 1960 to 2020, there had only been three federal executions. The federal death penalty had really become almost entirely moribund. And, you know, because it's the federal death penalty, there's a whole slew of

unique statutory and constitutional questions that, one, hadn't been addressed in a long time, and two, are not properly before the state courts, like where the federal courts are the only courts to handle these questions. And what's remarkable is that the sort of the government's very hasty efforts to, you know, get this policy off the ground, to identify the right kind of drugs to use in the execution protocol, it was so haphazard and slapdash. So that the relevant federal judges who are spread out, there are a bunch of judges in D.C. and in Maryland and in Indiana, which is where the federal execution chamber is, who actually freeze almost all of these executions. And in a series of orders, the Supreme Court unfreezes them. So of the 13 executions that the government carries out in the last seven months of the Trump administration, all 13 are only possible because of orders of the Supreme Court.

Seven of the 13 were actually frozen by lower courts and then unfrozen by the Supreme Court. And in all of those cases, the Supreme Court writes a single opinion in a case called Barr v. Lee, where the court says, we are allowing this execution to go forward, not because there's no Eighth Amendment claim, but because the experts disagree about the potential side effects of using this particular drug. And without some clear entitlement to relief, the prisoner can't make out his entitlement to a stay. So it's an incredibly like, nothing matters. We don't have to resolve your claims. We have a presumption against any 11th hour litigation of method of execution challenges,

even when it's not your fault, prisoner, that their 11th hour claims. And that carries all the way through to the last case, which I think is actually the worst of them. So the very last federal prisoner the Trump administration executes, a guy named Dustin Higgs. Higgs was convicted of capital murder by a federal district court in Maryland at a time when Maryland still had the death penalty. And so under federal law at the time, that meant that Maryland's procedures for capital punishment would be the procedures, that meant that Maryland's procedures for capital punishment would be the procedures that were followed. Maryland, in between the time Higgs was convicted and 2020, had abolished the death penalty. And so Higgs's case raised this novel, incredibly small but important in his case, question about what the federal government's

supposed to do when the state of conviction abolished the death penalty between the conviction and the sentence. The district court says, I have no idea. This seems like a mess. But I don't think I can just decree that we follow Indiana's procedures. The government appeals to the Fourth Circuit. The Fourth Circuit says, we are going to hear your appeal super fast. They expedite oral argument. They set a hearing. and the hearing is scheduled for January 22nd, 2021. That's not enough for the Trump administration. The Trump administration goes to the Supreme Court and asks them to lift the Fourth Circuit stay and to vacate the District Court's decision on the merits by granting so called cert before judgment, by basically wiping out the district

court decision saying, I can't name Indiana as the state of execution and doing it themselves. And on January 15th, so a week before the four-circuit was supposed to hold the oral argument, the Supreme Court obliges. It vacates the stay and it grants cert before judgment and it summarily reverses the district court and orders the district court to designate Indiana as the state of execution. What's crazy about all of this is the Fourth Circuit was going to hear argument a week later. Historically, the kinds of cases where the court would grant cert before judgment were like national emergencies, the Youngstown steel seizure case, the Watergate tapes case, the Iranian hostage crisis case. And now Republicans not getting what they want. Well, and right, here's, and here's what, and here we're doing this so that you can

execute one guy. Yep. And the timing is so just horrifyingly probative here because what's clear is that they wanted to make it possible for Trump to execute this guy because five days later would be inauguration, Biden would come to office, and Biden might commute his sentence. It's an example, I think, of just how much power the court has now arrogated to itself in this context where it's using procedural devices that have never been used in this way, not to change the law necessarily, but just to do what they want to do and to allow, you know, the relevant stakeholders to do what they want to do without any kind of formal

legal imprimatur. One of the things that you note in the book, Steve, is that the use of the shadow docket and the proliferation of the use of the shadow docket during the Trump administration seems associated with an ideological lurch to the right on the court. But what's actually interesting about the use of the shadow docket is that it actually makes it very easy to mask some of those ideological shifts. Because when people write about the court or do statistics on the court, they tend to focus almost exclusively on the merits docket. And, you know, we've talked about

some of the completely bonkers takes on the court, like the 333 court. But that kind of understanding of the court's ideological tilt is only possible if you're focused on the merits docket. If you include the shadow docket, which many of these court watchers don't include, a much more starkly ideological portrait begins to emerge. And so can you say a little bit about how more attention to the shadow docket can give us a clearer sense and more transparency about what this court is? Sure. I mean, so just take, let's take one term, I think, as a good, as a data point. So the October 2019 term, 2019-2020, at the end of that term, there were all of these stories about how few cases there were where the court divided five to four and how even some of the five to fours were, you know, not the usual suspects, were sort of some strange bedfellows. There were 53 decisions on the merits docket that term, only seven split the court five to four. Not all seven of those were the usual alignments.

And so, look, maybe this court is a little more complicated than people think. All right. Well, if you look at the shadow docket, right, during the same term, there are at least 11 decisions that were five to four. And that's without stealth votes. This is where there are actually four public dissents. All 11 of them are ideological, right? Nine of them are the conservatives versus the liberals. Two are Roberts and the liberals versus the conservatives, right? At a time when I think we all agree Roberts was the median vote. And that's one, more than we saw in the merits docket. Two, more homogenous than the merits docket. And three, most of those 11 rulings come with no opinion. And so there's no need, if you're a justice voting one way or the other, to explain why this is or isn't consistent with prior cases, right? There's no need to actually rationalize what you're doing. I think what happened during the Trump administration is that the Solicitor General discovered, and the justices acquiesced in this idea, that you can use emergency orders to make policy without

making law and to sort of basically allow policies like the second iteration of the travel ban or the border wall or the third country asylum rule to be in effect for years on end, even though no court ever upholds them. And indeed, multiple lower courts say they're unlawful. And, you know, what's so, I think, galling about that is that if you think that there are plenty of people out in the world defending the court saying, well, maybe they thought this about the Ninth Circuit or maybe they thought that about the district court. That's fine. But, like, if we're only speculating, then nothing the court thinks actually creates precedent. And none of the court's justifications actually can be used the next time around when it's a different administration. So just to sort of flip this over, right, the Biden administration keeps having its

immigration policies subject to nationwide injunctions in especially Texas federal district courts. It keeps going to the Supreme Court for stays of those nationwide injunctions, making the same procedural arguments about why the government should be allowed to carry out its immigration policies even while the cases go through the courts. And it loses, right? And the court keeps denying emergency relief even when on the merits the Biden administration ultimately wins, like in the Remain in Mexico case where the court originally denies a stay but then rules five to four for the administration on the merits. So the problem here is sort of twofold, right? It's the absence of explanation by itself, but it's also the behavior that the absence of explanation therefore invites, if not affirmatively facilitates. Right. So you're talking here about the obviously ideological valence to the way the court, this current court, uses the shadow docket

much of the time. And I want to just sort of turn a little bit from ideology, obviously, we're talking both ideology and politics, maybe to turn to partisan politics in particular, right? Because while much of the book is about, you know, some of it is about ideological valence, much is about kind of in broader terms, just the way the use of the shadow docket increases the court's power, decreases its transparency, and thus accountability and maybe legitimacy. But in chapter six, you turn really squarely to partisan politics, right? And so that's the chapter about the Purcell principle and the court's intervention in a lot of election cases. And the subtitle lays its cards on the table, right? The subtitle, which I will read, is how the current court uses the shadow docket to help Republicans. So how does this court in

election cases, and maybe more broadly, use the shadow docket in ways that both undermine democracy, which I think it clearly does, but also specifically help the Republican Party and Republican candidates? Yeah, I get a lot of grief for the subtitle of the book and for the subtitle of Chapter 6 from our conservative rights. To be clear, OK, I was not asking it with any shade whatsoever. I think it's real important and I think it's right. I was not thinking – no, but it was very deliberate. I mean, I think that's the point is that I think it's Chapter 6 that really makes the affirmative case that this is not just happenstance and that this is not negligence, but that actually at least some of the court's behavior can only be explained by reference to who's winning and who's losing. And so the Purcell principle, such as it is, is this itself shadow docket creation of Justice Kennedy. Well, we think it was Justice Kennedy, this unsigned ruling from the Supreme Court in 2006 that I'm just going on a

limb and saying was Justice Kennedy, where the court basically says, in general, federal court should refrain from any injunction that, as an election approaches, has a substantial risk of creating voter confusion. There's a lot to be said in the abstract for what that principle is trying to accomplish. I mean, right, I think the notion that, like, court should avoid confusing voters is good and is healthy. But the problem is it's totally under-theorized. And it's under-theorized in some pretty important ways, right? So what if the court is actually unconfusing voters? What if what actually has happened is a late change by the relevant election officials that the court is blocking so that the prior well-understood rule is what goes into effect. And so, I mean, you know, every election law scholar, I mean, Rick Haasen, Wilfred Codrington,

Fernita Tolson, I mean, everyone who does this has written about what's wrong with Purcell. But it's how the court applies Purcell in 2020 that I think really starts to make this look very, very ugly. So there are a number of cases in 2020 where the court, seemingly relying on Purcell, freezes lower court injunctions that in response to COVID had tried to make it easier for folks to vote, whether drive-through poll voting or absentee mail-in ballots, dispensing with the signature and witness requirements, for example, in South Carolina. And in case after case after case, the court freezes those. Then there's Florida. And in Florida, the valences were flipped.

So there's a constitutional amendment in Florida, a state constitutional amendment, to basically re-enfranchise felons. And the Florida legislature and the governor work very hard to sort of frustrate the amendment by imposing all kinds of additional obstacles to actually taking advantage of the amendment. The district court actually, after a lengthy trial, issues a permanent injunction against the legislative and executive efforts to frustrate, I think it's called Amendment 4. And so there's an injunction that goes into effect pretty far before the election. I mean, this is well in advance. This is not on the eve of the election. That would have had the effect of re-enfranchising potentially over a million Florida voters.

And the 11th Circuit doing exactly what the 9th Circuit had done in Purcell and exactly what the Supreme Court says you're not supposed to do, stays the injunction with no explanation. Basically puts back into effect these complicated, messy procedural requirements for felons who want to clear their record and vote. That should have been a textbook case for the Supreme Court vacating the stay and citing Purcell. It could have been a one-sentence order, right? The 11th Circuit issued a stay that has the effect of raising the risk of voter confusion, see Purcell, where we literally did this to the 9th Circuit. And instead, the court denies relief over a very angry and I think very correct dissent from Justice Sotomayor. And I just, I don't know how you look at all these cases and say that there's a principle here other than the

Democrats lose and the Republicans win. So it sounds like this shadow docket thing is kind of a problem. I guess, can we ask you to talk about some possible fixes you'd like to see to this issue? Yeah. I mean, what's funny is like, I mean, we've been doing this for, you know, as long as we're into this and we're still already into the worst problems, which is also the court now making law on the shadow docket. So how do we fix this? I mean, the first thing to say is I wrote the book at least first and foremost, just to educate people. And so if you're listening to this podcast, like we've already succeeded. I mean, I think there's much more public understanding of and familiarity with maybe not every little jot and tittle, but at least the general idea

of what the shadow docket is than was true as recently as four years ago. And some of that's because of what you guys have done. I think some of that's because of the very loud public backlash to the SB8 ruling in September of 2021. So, you know, step one is just like, hey, what is this thing? Because I think actually this is an example of the more people understand it, the more they understand what's wrong with it. Step two, I think, is, you know, using that awareness and that public understanding to impel the justices to actually reform their behavior. And that may sound like a fool's errand, but guys, I think we've already seen it. Well over six months into the term, the court had granted only two emergency applications the entire term compared to 20 or 25, right, in recent terms. There's this remarkable

opinion by Justice Barrett in an October 2021 case called Doe's versus Mills about vaccination mandates for Maine health care workers, where she says, you know, just because you make out the grounds for emergency relief doesn't mean we're going to grant it. And we're actually, we've seen since that moment, fewer applications where the conservatives seem to be granted for relief, more applications where Thomas Alito and Gorsuch are dissenting from denials of relief. We've seen some procedural reforms, the court kicking some of these cases from the shadow docket to the merits cases, like the student loan cases, like the U.S. versus Texas. And so I actually think it's working in the sense that the court

has already moderated some of its behavior, not all of it. I mean, I think there's still a long way to go. And that leads to the last point, which is that the real disease here is not the shadow docket, right? The real disease here and the reason why the book starts with Taft and the history of Sushirari is congressional abdication, is sort of the political branches taking their hands off the court as an institution. And I think the story that we ought to be comfortable telling is that for its first 200 years, the court was part of this robust, healthy, not always or even often perfect interbranch dialogue with Congress, with the executive branch about the proper role of the

court in our system. And that meant jurisdictional reforms, that meant, you know, Chief Justice Berger's year-end reports, which were meant to be like a State of the Union wish list for Congress, right? A practice Chief Justice Roberts has sort of quietly abandoned, even as he continues to issue these now sort of totally empty pablum year-end reports. And to me, guys, that's the real story here is that like the court has seized all this power and no one has done anything to take it back. And that's a failure to me of, frankly, some of us as law professors who haven't taught this as well as I think it should be taught. I think it's a failure of, you know, the Biden Supreme Court Reform Commission, which could have made a much bigger deal out of this stuff I think that would be a remarkable achievement, even if, right, every now and then the court still acts badly on the shadow docket, even if it does things that it doesn't explain adequately, even if it, you know, doesn't actually follow the precedence it's supposed to follow in this context. I still think more awareness, more dialogue, and more inner branch pushback is where this really has to go.

The book is called The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And it is available in all of the customary formats at all of your favorite booksellers, including our favorite, bookshop.org. But it's also an audio book, correct? It is an audio book, although I'm sad to say that I am not the audio narrator. Okay, I want to know more about that, T. How come you're not good enough to narrate your own book? What did they say to you?

Did people say you have too much vocal fry, Steve? Because that's something I sometimes hear. Do you just want to know if men hear that too? Maybe you should smile more while you're reading the book. I mean, Karen always tells me I have a face for radio. So apparently not. So,

so I actually, I asked if I could narrate the audio book and, and they basically made me audition for it. And, and I auditioned for it and lost um okay only you only you register an objection to that maybe we could do like a bootleg version of the book where you just read it on our air and uh people can you know again undermine your book sales i suppose to you so a couple possibilities one karen could read the book this is a great idea which know, and she could editorialize

as she goes, as she is wont to do. Also excellent. That would at least require Karen to read the book, which would be a development. You know, I think we could try

to get the justices to read the book. Oh, that would be amazing. Like, just like each of them take a chapter and read it out loud. Would we have to pay them or could we just give them private travel? Harlan Crowe will finance it.

Yes. Like a documentary. Exactly. Created equal. All of which is to say that the book is available in multiple formats and the fantastically talented voice actor Jonathan Todd Ross is the narrator of the audio book. So you're better off in his hands than mine. Although I make no, I do not vouch for all of his pronunciations. You know what, Steve? There's a lot of Latin in that book. There's a lot of Latin.

And I don't know if I like him. I don't like the sound of this. I think I'm just going to read the book and hard copy. Melissa, I should have asked you to audition too. I would have totally done it. But I just want to be on record. I'm not here for the Steve Flodek erasure. I'm not. That's a separate episode. The book is called The Shadow Docket,

How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And if you are a court watcher, this is necessary, urgent reading. We urge you to get over to your local bookstore, maybe bookshop.org, to check it out in whatever format you would like. Steve, thank you so much for taking the time to be with us today. It was great to have you and the book is fantastic. Thank you, guys. It's a real treat.

Before we let you go, just one quick note. You're going to want to check your feeds tomorrow for a rare strict scrutiny midweek bonus episode. This is our second annual crossover episode with Chris Hayes, host of the podcast, Why Is This Happening? and one of our very favorite Strict Scrutiny spouses. We sat down with Chris to unpack the term that just ended with a little bit of critical distance from it. So do not miss that conversation wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leo Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell.

Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizzuo, Michael Martinez, and Ari Schwartz. And digital support from Amelia Montooth. MSNBC's Chris Hayes, better known to our listeners as Mr. Kate Shaw, Kate Shaw's beloved husband, is joined by uniquely qualified guests to dig deeper into today's most pressing issues, like climate change, the threat to women's reproductive rights, the explosion of artificial intelligence, and near and dear to the Hearts of Strict Scrutiny Listeners, the latest decisions and dynamics of the Supreme Court. So search for Why Is This Happening wherever you're listening now and follow new episodes every Tuesday.