The Bulwark Podcast - Steve Vladeck: The Supreme Court's Shadow Docket

Episode Date: May 18, 2023

Justice Alito frequently complains that critics of the court are trying to delegitimize it. But it's the Supreme Court's own actions—including its late-night, unsigned, and unexplained decisions on the shadow docket— that are undermining the institution. Steve Vladeck joins Charlie Sykes today. show notes https://www.hachettebookgroup.com/contributor/stephen-vladeck/ Learn more about your ad choices. Visit podcastchoices.com/adchoices

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in Austin, and is the author of a brand new book, The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic. He's also the co-host of the National Security Law podcast. So welcome to another podcast, Steve. Thanks, Charlie. It's a real treat to be with you. This is kind of one of the magic sauces of podcasts. If you get other podcast hosts to come on your podcast, you're kind of, you know, it's almost cheating, I feel. Crossover episodes. It is a little bit of a crossover episode. So the reviews for your book have been very, very positive. But one person who I'm guessing is not a big fan of yours,

Sam Alito, is very, very unhappy with you. And he's very unhappy with the criticism of the shadow docket. And he's been taking some shots at you, hasn't he? I mean, you're kind of mixing it up with Supreme Court justice. You know, leave it to a Phillies fan to pick on a Mets fan. I mean, I think it's just, it's the nature of the beast. Yeah. You know, I actually think, Charlie, that Justice Alito's public statements, both recently and going all the way back to a speech he gave at Notre Dame Law School in September, 2021, have been useful. I think we're better off when the justices are actually taking steps to publicly defend their behavior and to publicly

respond to critics. One of the, you know, things that I criticize in the book and outside of the book about all of these unsigned, unexplained orders is how little the court is defending itself. So I don't mind the engagement. I actually think it's, you know, it's great that this is the conversation we're having. Okay. So one of the things that, I mean, you've made it very clear is you don't want this book to be just for lawyers. You want non-lawyers to know the ways in which, you know, the Supreme Court rulings affect everybody, you know, beyond the big decisions the court makes each term. So keeping in mind that we're going to be talking to non-lawyers here, I'm going to ask you to define some terms as we go through.

One of Alito's complaints is that critics, including you, are trying to delegitimize the court. So let's talk about that because there's been a lot of talk about the legitimacy of the court and various stories that might undermine it. What does it mean? What would happen if we delegitimize the court? What does that look like? So, I mean, I think if we jump all the way to the end of that conversation, a court that is illegitimate, a court that has been successfully delegitimized, is a court no one listens to. And it goes back to, you know, why do we follow Supreme Court decisions with which we disagree? The Supreme Court has no real police force. I

mean, it has a police force, but they don't go out of the building, right? The Supreme Court has no authority to go out on its own and enforce its decisions. And so there's this, I think, delicate but clear tradition where the court's power, its moral authority, indeed, I think it's legitimacy, comes from public acceptance of the same. And that's a weird feedback loop, because it means that public awareness of the court, public criticism of the court is actually a relevant part of the conversation. When we talk about the court's authority, what gets tricky, Charlie, is that, I mean, I think there is something to be said for the notion that like criticizing the court simply to weaken it, right, I think would be problematic if that were all that was going on.

What this charge misses, and I think what the book tries to flesh out, is that there's plenty in the court's own behavior that merits criticism. And I think, you know, we should be able to have two conversations at once. We should be able to say, hey, what is the court doing that's so problematic from a behavioral perspective without necessarily also having to say, why are you trying to delegitimize the court? I can't speak for everybody, Charlie, but for me, I'm actually here to save the court, not to bury it. I think we need a healthy court. I think we need a court that can hand down unpopular decisions, especially, say, after a contested election. And so I guess from my perspective, I think Justice Alito is missing the mark when he says that critics, especially of the shadow docket, you know, which I know we'll get into, are trying to undermine the court. I think what we're trying to do is show that the court is, at least in some respects, undermining itself. See, this is the crucial distinction, because to the extent that there is a danger of delegitimizing the court, it seems to be coming from the court itself by its own action. And so when critics point out, if you do, A, this might happen, that feels more like a warning than undermining the court. I think that's your point here, is that the court itself is on a path that will, over time, undermine its legitimacy. So it is not the critics who are undermining, it's the critics who are pointing out what the court is doing to itself. That's certainly how I feel, Charlie. I can't speak for all the critics. I'm sure there are

some progressive critics of the court who actually are very invested in trying to weaken it as an institution. I'm just not one of them. And so, you know, this is where I think the Alito critique rings at least somewhat hollow. But the other part of the story is, you know, a big part of why I wrote this book is because so much of our contemporary discourse about the court happens on this incredibly superficial level. I think that's even a fair charge of some of Justice Alito's responses, that they're very superficial. There's nuance here in exactly why folks like me are worried about the court's behavior. It's not just because there are six conservatives. It's not just because they hand down rulings like Dobbs. But there's also nuance in the defenses

of the court. And I think that's why having a conversation that actually lays out the historical progression of the court's power and how we got from 1789 to today and how the current court's behavior is out of kilter with its predecessors, I think is such an important step before whatever we're going to disagree about, before those disagreements can be informed by the right baseline. So I want to stick with this for a moment, what it would look like for a court that has been effectively delegitimized. Would it be a president or an agency or just another litigant just saying, we're just going to ignore the court? We're going to continue to enforce a law that has been found unconstitutional or that we are, how would it play out in real time? So, I mean, I think we could see it in any number of respects. I mean, when we got all the way to the bottom, I think you would see presidents refusing to comply with court orders, private parties refusing to comply with court orders.

I think you would see efforts by the political branches to actually affirmatively undermine the court, you know, zeroing out the Supreme Court's budget, except for the justices' salaries to avoid violating Article III of the Constitution. Lots of other steps to basically sort of minimize and reduce the court to basically a shell of itself where the court can do nothing but obey the whims of its political masters. We're nowhere close to that. I don't think anyone would think that we are. But, you know, I think the problem is the justices should be the first nine people invested in ensuring that we don't even start going down a slippery slope toward that cataclysmic apocalyptic future. Well, the reason this is in the back of my mind and why I think we ought to talk about it

is because one of the things we've learned over the last seven, eight years is that so many of the checks and balances that we had thought were written into law actually turn out to be on the honor system. They are norms rather than actual hard laws. And so the question is, okay, so someone defies the Supreme Court, so what? What happens? We look around. I mean, we've been talking about the independence of the Justice Department is assuming that it's there. But if the President of the United States sits in the Oval Office and says, you know, I'm going to order you to charge these people. I am going to, you know, tell people to go out and commit crimes and I am going to pardon them. You know, what exactly is the mechanism that stops all this? Everybody says, well, that would never happen because we have all these norms and all of these traditions.

But but what happens if, in fact, they are violated? And this brings us to the Supreme Court, because as you point out, they have no army. They have no marshals who are going to go out and force the president to do what they want. The Constitution is not self-executing. So this seems like it is part of this recognition how fragile these norms are across the board. And that's why I find this sort of the turn, especially in the last couple of months, from especially conservative defenders of the court toward, you know, criticizing even the validity of an anti-legitimacy critique. That's why I find that turn really dark, because it seems to me that the healthier conversation is to actually fight

on the ground of what reform should be. And, you know, I think progressives get caricatured for saying, oh, well, the reforms we want are to add four to sixes to the court to impose term limits, etc. Yeah, that's what a lot of progressives want. But there are so many lower hanging pieces of fruit in a conversation about reasserting, you know, a healthy interbranch dynamic, where the court is not nearly as unchecked and unaccountable as it seems to be today. And I guess this is where I think the conversation could benefit from nuance. Because if we look at the history of the Supreme Court, you know, Charlie, I don't think there's ever been a period where the justices behaved repeatedly in ways that

so clearly reflected a lack of concern for external accountability, for being reined in by Congress, for violating those norms, as we're seeing today, in ways that, you know, I can't say are unlawful, right, or impeachable. They're not, right? They're just sort of eroding norms in ways that I think it's incumbent upon the justices to actually want to abate and in ways in which I actually think it's incumbent upon Congress, regardless of who's in control of each chamber, to sort of claw back. I mean, you know, the book tells the story, especially in chapter one, of how much for the first 200 years of the Supreme Court, there was this, you know, push and pull between the court and Congress about what the court was going to do, about what

cases the court was going to hear, about what role it was going to serve. And that push and pull has largely subsided to the point where now when John Roberts is invited to testify before the Senate Judiciary Committee, he just asserts that it would raise separation of powers concerns to do so when justices have testified since time immemorial. So this is the conversation the book is trying to spark and indeed is trying to inform, which is if we look at the court holistically, I think we can see where the problems are, even if you are sympathetic to the bottom lines that conservative justices are reaching. So we're going to get to the whole Harlan Crowe ethics issue in a little while and what must be going on in John Roberts' mind, but let's go to the heart of your book.

The book is The Shadow Docket. So keeping in mind that we don't want this just for lawyers, what is The Shadow Docket, Steve? Explain it to me as a lay person. It sounds more nefarious than it is. The Shadow docket is basically just an evocative shorthand that Chicago law professor Will Bode came up with in 2015 to describe, Charlie, nothing other than all of the other things the Supreme Court does besides the 60-ish fancy decisions the court hands down in the high-profile cases each spring. So, you know, we're going to get in the next six or seven weeks huge high-profile rulings on affirmative action, on redistricting, on, you know, you name it.

And Will's insight was that in the shadows, right, sort of in the spaces where we can't see as well, the court is doing a whole lot of stuff that is often just as important. But by tradition, most of what the court is doing in the shadows is unsigned and unexplained. And so, you know, the trick and the challenge is to try to explain to not just a lay audience, but lawyers, the significance, not just of individual unsigned and unexplained orders from the court, but of sort of bodies of unsigned, unexplained orders from the court running the gamut from when the court decides to not take up a case. And that leads, for example, to the legalization of same-sex marriage in a whole bunch of states to when the court steps in to, you know, keep nationwide access to Mifepristone, right? These are all unsigned, unexplained orders producing massive effects. And the basic insight here is that we ought to pay attention to them as much as we pay

attention to the more obviously visible stuff the Supreme Court does. So the first time that most people heard the term shadow docket, I think, was when the Supreme Court refused to block that Texas law that banned abortion after six weeks. This was in September of 2021. Does that sound about right? Absolutely. And indeed, there's actually media studies that show that. So, I mean, again, you know, one paragraph, unsigned order issued just before midnight.

So there was no notice this was coming up. There was no hearing. There was no argument. They were, you know, did not have lengthy explanations. You wrote a piece in the Washington Post shortly afterwards citing Justice Kagan's dissent that the shadow docket decision making was increasingly inconsistent and indefensible and was actually eroding the court's legitimacy. So you have members of the court who are saying these emergency style orders,

that there's a legitimate role for them, right? I mean, they've always been part of the high court's work, but it's the increased frequency, the breadth, and the sort of the partisan flavor of the orders that have changed in recent years. So it's not a new thing, but the way it's being used and the style is what you're talking about here. That's exactly right. And it's so well put. I wish I had put it that way in the book. The court has always had to have some mechanism for dealing with emergencies. You know, just to be clear, like the typical case gets to the Supreme Court only at the very end, right? Only after years of litigation, after going through multiple levels of lower state and federal courts,

emergencies happen when at some early point in the case, a party that lost below wants the Supreme Court to adjust the status quo while the case works its way back up to the Supreme Court. So back to the Mifepristone example, right? The district court in Texas had basically revoked the FDA's approval of mifepristone. And it's the federal government and one of the drug sponsors who go to the Supreme Court and say, you've got to freeze that ruling while you let this case play out. Charlie, we've always had emergencies. But what really shifted starting about six years ago is the court used to not step into them that often at all. Most of the ones the court stepped into were 11th hour death penalty disputes about stays of execution. And when the court stepped in, you didn't often see the justices dividing ideologically.

What has shifted since 2017 is the court is stepping in just in absolute terms more often, so granting emergency relief more often than ever before. The cases in which it's doing it are not one-off disputes about whether Texas can execute, you know, John Doe, but rather they are statewide or national disputes about whether particular policies will or will not be allowed to be in effect from Trump immigration policies to state COVID mitigation measures. You mentioned the Texas abortion ban. These rulings obviously have far broader effects. And then the two things that really, I think, tie home why this has become such a problem. The first is, as you say, that if you look at the cases in the aggregate, you see some glaring inconsistencies where instead of neutral principles, for example, the federal government's

entitled to deference in immigration law, or we're going to be especially skeptical of state COVID mitigation measures, the better predictor of when the court intervenes and when it doesn't is the partisan valence of the case. That's what Kagan meant when she said inconsistent. And, Charlie, this is, I think, the hardest part for non-lawyers, but also the part that drives home the real problem. For the very first time, the court is treating these unsigned, unexplained orders, in at least some cases, as precedents. That lower courts are bound to follow, that the court has yelled at lower courts for not following, which gets us back to where we started,

which is how is the court supposed to be able to make these kinds of rulings that have massive impact on the ground, that are precedents legally for lower courts, and yet have no principle of justification? Like that's what we've seen in the last five or six years that really impelled me to write the book. Hey folks, this is Charlie Sykes, host of the Bulwark podcast.

We created the Bulwark to provide a platform for pro-democracy voices on the center right and the center left for people who are tired of tribalism and who value truth and vigorous yet civil debate about politics and a lot more. And every day we remind you folks, you are not the crazy ones. So why not head over to thebullwork.com and take a look around. Every day we produce

newsletters and podcasts that will help you make sense of our politics and keep your sanity intact. To get a daily dose of sanity in your inbox, why not try a Bulwark Plus membership free for the next 30 days? To claim this offer, go to thebulwark.com slash charlie. That's thebulwark.com forward slash charlie. We're going to get through this together. I promise. Okay, so what happened in 2017? What explains a shift this fundamental in the court? So, you know, I think it wasn't any one thing. I think it was a slow build of a series of sort of marginally related developments. So the first is I actually think that the appetite for this was already there on the court, even before 2017. Folks might remember that the Obama-era Clean Power Plan was blocked by an

unsigned, unexplained order by a 5-4 Supreme Court right before Justice Scalia died. That, I think, was a harbinger, even though it was, at the time, I think, viewed as a one-off. What changes to make this pattern more visible in 2017 is all of a sudden you have a flurry of cases where the Trump administration starts bringing emergency applications to the court to a degree and with greater frequency than any Justice Department ever had before. So across the Obama and George W. Bush administrations, two different two-term presidencies, the Justice Department goes to the Supreme Court for this kind of relief eight times in 16 years, and in four years, Trump goes 41 times. So I think, Charlie, it's the sort of the conditions were already maybe

there, but now the cases are too. And then I think this pattern only accelerates when Justice Kavanaugh replaces Justice Kennedy in 2018, and then when Justice Barrett replaces Justice Ginsburg in 2020. So it's sort of subtle shifts in procedure and doctrinal understandings accelerated by a flurry of new applications, and then it's accelerated further by two pretty significant shifts in the court's composition. Now, I thought it was interesting when you were laying out these numbers, you mentioned, you know, the Trump administration sought emergency relief from the court 41 times, and the justices issued 28 orders out of those petitions. And of those 28 orders, that the pattern was allowed the government to enforce policies that had been thrown out by

every other lower court, you know, for example, as you mentioned, you know, the immigration order to go ahead, or they were freezing a COVID restriction. And in these cases, the court issues the orders without providing any rationale, any vote count or identifying who wrote the court's rulings. I mean, somebody had to make a decision at some point that this is the way we're going to go. And the reason I started off by asking you about Alito's complaints, it feels as if he's got some fingerprints and some ownership on this new style that said, hey, guys, we can do this. You don't have to sit around and trade opinions and come up with arguments. Alito strikes me as a guy who's pretty result-oriented, and so that when Kagan is

talking about the inconsistency in the logic, I kind of feel she's talking about him. Am I making this up? So I don't think you're making it up. I will say that I think, one, it's very possible that as this became more common, I mean, Charlie, keep in mind, this used to be something they only did a couple times a year. And so there was no familiarity with it, right? And so as it becomes more common in 2017 and 2018, yeah, I can imagine that a couple of the justices are like, oh, this is actually much easier. We don't have to explain it. Great. No fuss, no muss, no arguments. But to be slightly more defensive of the court, I also think that the real problem, and I try to sort of make this argument in chapter three of the book, which is about the

death penalty. I think part of what happens is that a lot of these bad behavioral shifts had already happened, but they had happened in the, you know, absolutely unique, you know, Dadaist painting of the death penalty, where everyone is conditioned to assume that the rules are different and that everything about the cases are different. So it's in the early 1980s, Charlie, right, that the court starts handling more and more of these emergency applications as a full court, as opposed to with individual justices, right? It's in the early 1980s where the court abandons the tradition of having oral argument on divisive emergency applications. It's in the early 1980s that the court sort of hews to this idea that we're not going to explain ourselves in cases even where

we're granting emergency relief. And that had happened long before Samuel Alito was on the Supreme Court. It's just that it had been over there where no one other than, you know, death penalty lawyers was paying attention. You ask anyone who clerked on the Supreme Court in the 1980s, 90s, or 2000s, like what was the shadow docket? They'll say it was the death penalty. And so, you know, I think part of what happens is that from at least some of the justices' perspective, it didn't feel unnatural to apply the same approach to sort of to borrow the pathologies of the death docket when Trump comes along with all these new novel requests. And I think if there's a sin here, right, it's sort of not taking a beat and not sort of taking a breath and saying, wait a second, is this really a shift we want to endorse? So that by the time we get into 2019 and 2020 and 2020, you get the flood of COVID inspired cases. They really have sort of dug themselves into a much deeper hole than I think they ever might have consciously chosen to. And this is why this is relevant to this whole debate about delegitimizing the court, because, you know, if the court is relying on people's respect and good feelings for its

reasoning and its legitimacy, then it would want to provide a rationale. It would want to identify who wrote it. So, I mean, clearly there's a price to be paid. Okay, so you mentioned COVID. Let's get into the specifics here, how the shadow docket worked during COVID. In the religious liberty challenges to blue state COVID restrictions, the court very aggressively used the shadow dockets. I mean, it repeatedly intervened. This was one of the moments where they really ramped it up, right? So what did they do during COVID? Yeah, and it's worth stressing. I mean, you can actually see the moment where the dam breaks, and it's when Justice Barrett is appointed. But when Ginsburg is still on the court, there are a couple of cases that get to the court in

the summer of 2020 where the court denies relief five to four. And Chief Justice Roberts joins the four Democratic appointees and he even writes and says, I'm kind of nervous about what these states are doing, but guys, it's a public health emergency. Like we should defer a little bit. As soon as Justice Barrett comes on the court, her very, very first public vote is, you know, four minutes before midnight, the Wednesday before Thanksgiving, to throw out New York's COVID-based restrictions on religious services. Starting this remarkable pattern where over the course of five or six months, the court just keeps blocking COVID restrictions in New York and California and New Jersey and Colorado and almost never explaining itself. And, you know, Charlie, what's remarkable about this is that when you peel back the layers, what's really going on in the COVID cases, and the court finally admits this in April,

when they finally write a majority opinion in a case called Tandon versus Newsom, what we get is a new principle of free exercise jurisprudence. Basically that the conservative justices wanted to strike down these state COVID restrictions, but needed to change the law to do it. Whatever we might think of changing precedent and of the court shifting its doctrine in the abstract, the shadow docket's not where that's supposed to happen. And indeed, the relief the court kept granting in these cases, so-called an emergency writ of injunction, was only supposed to be available if the right at issue was, quote, indisputably clear. And here we have the court literally making a new law and chastising lower courts for not

anticipating that it was making a new law in a context in which it's not allowed to make new law. So that's where I think we really start to run off the rails. And Charlie, this is all happening at the same time as the court has cases on its merits docket, right? Through the normal procedure that are actually asking the justices to take the same steps and to make the same shift in free exercise jurisprudence. And they're doing it on the shadow docket instead. I thought this was one of the most striking parts of the book because, again, I am not a lawyer, but I think instinctively I was sympathetic to some of these religious liberty challenges to the blue state court restrictions. I mean, I like the idea of having an expansive

role. But as you point out, what the court was doing was they were changing the meaning of the free exercise clause of the First Amendment with no oral arguments, no friend of the court briefs at all. And that is kind of breathtaking. That is a change that if you're going to do this, if you're going to take a step this monumental, which by the way, reflects, I think, their deeply held beliefs, you know, they certainly can express their rationale. There's no reason for them not to do it, but they chose not to do it. These are principles that I think that the court is willing to embrace. It's willing to enunciate. It's willing to explain. And yet they did not do that. And then the question is why?

Yeah. Okay. Why? Right. And I don't know. But like, this, why? one decision followed by another. And this is why I think just sort of to make the pedagogical point, it's so important to look at the court holistically, because if you look, Charlie, at any one of these COVID cases, you might actually say, yeah, you know, California went a little bit too far, or, you know, New York's restrictions were a little bit too vague. I mean, that's fine. But it's in the pattern of the decisions that you actually start to see behavior that, if not intentional on the part of the conservative justices, certainly appears to be willful. And also, you made the point, which I thought was very, very powerful, that by not explaining the rationale behind them,

these court orders, and I think you used the word most perniciously, tended to appear to favor Republicans over Democrats. So by not enunciating the principle, it looked like we are just favoring the red states over the blue states, or we're punishing the blue states. So it looked nakedly partisan in a way that it might not have had they laid out the constitutional reasoning behind and the new standard they were applying to the free exercise clause. And this goes back, Charlie, to your point and your question about legitimacy, right? I mean, the best thing that can be said about the lengthy decisions the Supreme Court typically writes accompanying its judgments is that those decisions are the insulation that the court and the justices have against charges that they're just politicians in robes, right? That we don't have to agree with their principles, right? But we're supposed to agree that they are principles. And when there are no principles, it really does at least look sharply partisan. This is why I think there was so much visceral reaction to the Texas abortion

rule, which comes, you know, five months after the denouement of these COVID cases because we had just seen the same five justices showing no compunction about intervening over and over and over again to articulate a new constitutional principle. And in the Texas case, these five justices wouldn't intervene to protect an old constitutional principle. And that really is where you get the charge from Justice Kagan of inconsistency. Okay, so let's talk about how this worked in these voting rights cases as well in 2022. In Louisiana and Alabama, there was a strong factual dispute about the redistricting map and the lower courts had ordered the states to redraw the maps. Again, shadow docket ruling, U.S. Supreme Court just tells the states, you don't have to redraw the maps, keep them as they are. No explanation at all. Yeah. So by last April,

I think this had become de rigueur for a lot of what the court was doing in this space. What's especially, I think, galling or at least revealing about the Alabama and Louisiana cases is that in the Alabama case, you have this remarkable dissenting opinion by Chief Justice Roberts, right? So it's not just the liberals versus conservatives. John Roberts, who I think we can say is no great friend of the Voting Rights Act. He wrote the massively important majority opinion for a 5-4 court in 2013 in Shelby County versus Holder, which eviscerated the preclearance formula in the Voting Rights Act. But Roberts dissents in the Alabama case, and his dissent basically says, I don't

think this is an unfair paraphrase. Listen, I might actually be with you, you know, Alabama and fellow conservatives on the underlying legal question here, which is whether we should revisit this 1986 precedent called Thornburg versus Gingles about when states have to draw what are called majority minority districts, when a population of a minority group in a state is sufficiently large and compact that it requires special treatment, right? And congressional, he says, we may want to revisit that. But he says, you know, an emergency application is not the place because the question before us is simply whether the lower courts abuse their

authority and whether there will be irreparable harm, right, from leaving that ruling intact for the duration of the appeal. And he says, you know, I don't see how a lower court could have, you know, abused their authority by following the law and by applying the law that we have not yet changed. And I think that was telling, you know, in two respects, Charlie, first on the merits, he's clearly right. But second, I mean, when you have John Roberts signaling over and over again that the conservative justices are taking procedural shortcuts to reach maybe the substantive results he himself wants, right, I think that should be pretty powerful evidence that this is not just, you know, progressives trying to find any way of attacking the current court. I want to come back to that in just a second, just for people to understand the relevance

of our discussion right now of voting rights. You point out, you cite the New York Times reporting on how these shadow docket rulings on voting rights affected somewhere between seven and 10 seats in the House of Representatives, and they were all left safely Republican. So that's control of the House right there. That's the relevance. So Justice Roberts has pulled back on this. I mean, the most recent ruling, you know, staying the Texas federal judges ruling on abortion pills, certainly looks like a retreat from the most aggressive, zealous use of the emergency order docket. Do you read it that way? I do. And I actually think that the best evidence of that is Justice Alito's dissent, which really, really goes after not just the three Democratic-appointed justices,

but also Justice Barrett for what he claims is hypocrisy. I actually don't think it's hypocritical. I think there's a lot, you know, back to the top, there's nuance here. I mean, I do think that, you know, the COVID cases really did, I think, suggest to the court as they look back at them that maybe they had gone too far. So in October of 2021, about seven or eight weeks after the Texas abortion decision, which as we said, like provoked this massive public backlash. Justice Barrett writes this very cryptic concurring opinion in a case where healthcare workers in Maine had asked for emergency relief to block the COVID vaccination mandate that the state had imposed. And the court says no over a dissent from Thomas Alito and Gorsuch. And Barrett concurs in the denial and is joined by Kavanaugh. And what she says is, hey, listen, just because you have made out what we say the criteria are for emergency relief doesn't mean we have to grant emergency relief. She said we can and should exercise discretion when granting emergency applications. And that discretion is just the same discretion we have when deciding which cases to take on the merits.

You know, Charlie, she didn't say how her discretion is going to be guided or shaped. But ever since then, I mean, even with the 2022 redistricting cases, we've seen less of this. We've seen, you know, fewer grants of emergency relief. We've seen more dissents from Thomas Alito and Gorsuch. And so I think maybe there was a lesson there that actually that public outcry and that public backlash mollified at least two of the relevant justices. Yes, you have Justice Roberts who's been more overtly critical of this and Kavanaugh and Barrett looking like they might have blinked a little bit and chosen to be more cautious in some of these cases. I mean, we're reading the tea leaves here. All we have are tea leaves, because again, no one's writing opinions

to explain themselves. But yes, I think that's where, you know, as we sit here in May of 2023 recording this, I think that's where we are. So it's not that, you know, shadow docket, heal thyself. I don't think that this is, you know, the court solving the problems. But I do think it's actually an object lesson that the court both is responsive to public criticism and maybe ought to be. That having more of this stuff out in the daylight actually can help to precipitate meaningful discourse that then has, you know, downstream effects on the justice's behavior. It's an old saying that the Supreme Court often follows election results. And, you know, what you're saying is that, you know, public opinion does have an impact. And right now, the court is really

under siege. I mean, it's not just the polls. We have, you know, story after story about the ethical problems of Clarence Thomas. Give me your sense about the Harlan Crow. First of all, what you think about the ethical issues that are being, you know, raised about Clarence Thomas, you know, Harlan Crow, you know, the trips, the mother's house, the tuition, the most recent story about Leonard Leo pushing some cash toward Ginny Thomas and saying, don't mention her name. How serious is this in your mind? I mean, how big an issue is this for Justice Thomas and obviously for the rest of the court? I think it depends on what this is. I mean, right. So this could be right. All of the Harlan Crowe stuff. This could be some of the Harlan Crowe

stuff. I guess, Charlie, to me, the real problem here is not Justice Thomas's behavior. The real problem is the galling lack of any mechanism for resolving the propriety of his behavior, right? That we are left to the court of public opinion to litigate whether Justice Thomas did or did not cross the relevant lines. There is no mechanism. There is no enforcement mechanism at all. And in that respect, I actually think that these two conversations dovetail because to me, the sort of the lack of an enforcement mechanism is a symptom of the same disease, which is a disease of unaccountability, where the court has been left to its own devices for too long and has been sort of left without meaningful

congressional oversight, congressional accountability, congressional leverage for too long. So the justices now just can't imagine any world other than self-policing, can't imagine any docket other than one that they control. And so, you know, to me, it's less about whether any of Justice Thomas's specific behavior violates the relevant norms and rules, and more about building the case that we ought to have some conclusive way of answering that question that goes beyond just my opinion. If the overall theme here is the extent to which this court has become, you know, began to feel that it was completely unchecked, a little

bit of judicial hubris going on here. Is there a moment that's going on right now where they are being sobered? If you're John Roberts and you're the chief justice and you are an institutionalist and you're watching all of these things, all of the challenge, knowing that people like you and I are having a discussion about the legitimacy of the court. Is this having an effect across the board on all of this? A moment for the justice to say, okay, maybe we ought to slow the roll on some of this stuff. We ought to think about how this looks, how it plays, what our image is, and how we respond to others? Is there any indication that there is that sobering moment happening? Yes, but maybe not nearly enough. You know, I think it's worth stressing, I mean, John Roberts is in a bit of a sticky position here. I

mean, he might be Chief Justice, but he has no special authority or sway, right, over the other eight justices. They've all got the same lifetime appointments. And so I think it's not just about what Chief Justice Roberts thinks, although I think he's quite clearly interested in and dedicated to preserving the court's institutional role and institutional legitimacy. I think it's about what the other conservative justices think. And we know, I think, what Justice Alito believes from everything he's saying publicly. I think we can guess what, you know, Justice Thomas thinks. But, you know, to me, a big part of the story is, you know, where are, you know, the three Trump appointees,

right? Where are Justices Gorsuch and Kavanaugh and Barrett on these questions? And, you know, how much would they be standing in the way of reform on the inside? And that's where, again, I think maybe the shadow docket example is a helpful illustration that Barrett and Kavanaugh are to some degree, at least, you know, receptive to public critiques to push back. But, you know, that might be a lot smaller from their perspective than accepting the kinds of reforms we would need to have a meaningful ethics accountability mechanism as well. Time will tell, but I just think, you know, it's about them. Okay, so I feel the need to have a big whiteboard behind us here to catch up where the justices are.

Chief Justice Roberts clearly, you know, playing kind of a more centrist role on a lot of these decisions, dissenting on some of these cases. Kavanaugh and Barrett seeming to have blinked a little bit, more open to this sort of thing. So do you have sort of a chart of the six where you'd put Roberts over here on one side, you have Alito and Clarence Thomas over here on the other side, you have Kavanaugh and Barrett kind of leaning, and Gorsuch has been lining up with Thomas and Alito. There appear to be at least the formations of different approaches within that caucus of six. I think that's right. And I think the, you know, Steve Mazey, who writes beautifully about the Supreme Court for The Economist, got in a little bit of trouble

about two years ago, because he wrote a piece called The 333 Court, which basically sort of suggested we should think of the court as having three troikas, right? The sort of three democratic appointees at one end, Thomas Alito and Gorsuch at the other, and the chief Kavanaugh and Barrett in the middle. I understand why folks were critical of Steve for writing that piece and for framing things that way, because it moves the Overton window a lot when the middle of the court is those three justices. But it's descriptively accurate, Charlie. And I think it's been reflected in the shadow docket as much as it

has been on the merits docket. And my sense is it's also, you know, ultimately what's going to decide how receptive and responsive the court is to any of the push for ethics reforms. So what is the fallout from Dobbs? First of all, let me ask you this. Were you surprised by the sweeping nature of the Dobbs decision? I will say I was not, both going into oral argument and especially after the oral argument. I mean, the oral argument in Dobbs had this quality of sort of how do we write the opinion as opposed to what should we decide. But I also think that like, you know, gosh, when you think of why there's been such an effort to push nominees, especially from Republican presidents so far to the right, you know, public enemy number one was Roe. And it was hard for me to imagine a universe in which that wasn't going to come due, right? And that, I mean, you know, if you keep in mind, Justice Alito was not the first nominee for Justice O'Connor's seat.

I mean, he was the third. John Roberts was the first. He gets sort of moved over to the center seat when Rehnquist dies. Harriet Myers was the second. And, you know, her nomination was killed by conservatives because they weren't sufficiently convinced that she was going to be a locked vote for lots of things, but especially over Roland Rowe. So I wasn't surprised by Dobbs. I was surprised by maybe some of the ways that Dobbs' opinion was configured, the sort of the self-evident, you know, sort of vibe to the Alito opinion, the sneering that, you know, that of vibe to the Alito opinion, the sneering that, you know, that comes through in some of the opinion. The actual result, I think, was not,

you know, hard to look at this court and not see that coming. We're nearing the end of the term and, you know, big decisions are going to come down in the next month or so. What should we be looking for to determine where this court is going, whether or not it is still, you know, peddled to the metal, you know, at ramming speed moving to the right, or whether or not it's decided to be, you know, take a more cautious approach. What are the cases that we ought to be looking at,

that you're looking at? Man, I wish more people got that Animal House reference. To me, it's not the cases, Charlie, so much as it's the lineups, right? So, you know, I think we know what's going to happen with affirmative action, right? I think the student loan cases, are the conservatives really going to endorse broad theories of standing that they've spent the last 50 years rejecting? There's a sleeper case called US versus Texas. That's not just about the underlying policy, which is the Biden

administration's immigration enforcement priorities. It's also more generally about like, hey, are we comfortable with states being the, you know, sort of the challengers in chief of all federal policies? And, you know, I guess I could tell you with some degree of confidence how I think at least three or four of the conservative justices are going to vote in almost all of those cases. Same with the, you know, the three more liberal justices. I'm going to be fascinated to see if what we were just talking about, the 3-3-3 court shows up at all. And if it shows up, where does it show up and why? The book is The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and

Undermine the Republic. It was out earlier this week. Steve Vladek is a professor at the University of Texas School of Law. Steve, thank you so much. This has been absolutely fascinating. Oh, thanks, Charlie. It's great to be with you. And thank you all for listening to today's Bulwark Podcast. I'm Charlie Sykes. We will be back tomorrow, and we'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.