Shadow Docket

Show Notes

Aughie and Nia discuss the nature of the shadow docket, and how it is used by the Supreme Court.  Aughie also explains the common scholarly critiques associated with the use of the shadow docket.

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Shadow Docket

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.

N. Rodgers: Hey Aughie.

J. Aughenbaugh: Good morning Nia, how are you?

N. Rodgers: I'm good. How are you?

J. Aughenbaugh: I'm good. Thank you.

N. Rodgers: Given the topic today, I've been thinking about something.

J. Aughenbaugh: Okay.

N. Rodgers: I'm not going to tell people what the topic is because I'm going to let them guess from my intro.

J. Aughenbaugh: Okay.

N. Rodgers: All right.

J. Aughenbaugh: This is a new feature.

N. Rodgers: Picture, if you will, the scene, a room is dark and there are nine people on one side and one person on the other side of the room. There is a knock on the door. Someone says, ''I've come with the shadow docket.'' What's on it, you ask? Only the shadow knows. That's what I hear when I hear the shadow docket. I hear one of those episodes where they tell you, remember the old radio shows where they told you what was happening. ''Sir, put down that gun, I dare you not to shoot me. '' because you wouldn't know that's what was happening because you were listening on the radio. That's how I picture J. Rob and the shadow docket. Is him with his trench coat and his hat in a half-lit room be stealthy and stuff. Is that even remotely close? Tell me that he at least when he releases this stuff, does it in a trench coat and a fedora.

J. Aughenbaugh: Well, we don't know because typically it is the United States Supreme Court's press office. Like I said, it releases the orders from the shadow docket. But because so much of the work of the Supreme Court is not known by the public, it could easily comply with the scenario that you just described. In fact, that's part of the explanation/critique of the Supreme Court's shadow docket. Is that it is a docket that doesn't follow the Supreme Court's normal procedures in deciding a case.

N. Rodgers: Normal procedure. I put in a case, I appeal to the Supreme Court and I say Aughenbaugh was mean to me and I want you to fix it. They take the case and then Junior Minions write briefs for them so that they understand the points at the end and they do a bunch of research and then they come back with their opinion and they vote. Then somebody gets told to write the actual opinion for the group and people write dissents if they don't like. Or they write concurrence is if they like the answer but not the reasoning, and there's all drama. Then you're done. This is not that normal thing.

J. Aughenbaugh: Process.

N. Rodgers: Right?

J. Aughenbaugh: Typically listeners as Nia just described it, let's say you're an individual and you feel as though the government did something wrong to you. In the lower courts you lose so you file an appeal in the Latin phrases, writ of certiori, it's abbreviated to CeRT writ. You file a CeRT writ and all it is is an appeal.

N. Rodgers: Say last Summer of SCOTUS because we discussed all of that in rather strong detail.

J. Aughenbaugh: That's right. The court will first have their clerks review all of these appeals and recommend to the justices which ones should be heard. Four out of the nine justices have to agree to take a case. Let's say four justices say Nia, you're right. John Aughenbaugh, said government official violated one of your constitutional rights. Four of us want to go ahead and hear this case, sink our teeth into.

N. Rodgers: Stick it to the man. Except they haven't decided yet. You may have been right to be mean to me. I may be doing something that was pooky and it was totally right for you to say stop doing that.

J. Aughenbaugh: Then the court sets up a timeline for Nia, your attorney, me and my attorney to file written briefs. That's usually when the clerks of the justices then write up a case memos so the justices get to know all of the background about this particular case, all of the relevant ruling, any of the interesting academic literature about this topic. Then there's oral arguments and then afterwards they take a vote. Six of the Justices believe, yes, I was a bad person and I violated Nia's civil liberties. The chief justices in that six justice majority assigns the majority opinion, if he isn't, the senior most associate justice assigns the opinion, the Justices write all their opinions when all the Justices are done, then the court releases the court's ruling. That's the normal process.

N. Rodgers: This process is like birthing a baby. It takes several months to get to this process. It's not an emergency. You can't get an emergency ruling through this process, I mean, what you're talking about is a multi months thing.

J. Aughenbaugh: Well and then also think about too, that it could be a multiple year process because me at some point, I allegedly harmed you. Then you have a court case, and then you have appeals. Chances are what I did to you or what you alleged I did to you is happening across the country. Other courts have looked at this issue. We have this very public, if you will, German nation of a legal or constitutional issue.

N. Rodgers: Which becomes a point of, I've noticed, it's about you as a judicial scholar and especially as a scholar of the Supreme Court. In fact, I cannot think of a circumstance in the years that I've known you have you been surprised by the court. You know what's happening at the court. You may be surprised by a ruling like the whole J. Rob with the ACA a couple of years ago. You were, "Oh, that's an interesting take." Because it was about, I think taxes wasn't it?

J. Aughenbaugh: Yes.

N. Rodgers: something like that. It's a whole interesting take on it, but you're not surprised because a lot of those things had been working their way through the system which is why people who watched the court can say this year they're going to decide whether to take a case on guns because 15 cases have come through and one of those might be interesting to them. It's not a surprise. But you don't suddenly show up at the Supreme Court like a magician. [LAUGHTER] [OVERLAPPING]

J. Aughenbaugh: Yeah right?

N. Rodgers: Pull a rabbit out of a hat and say ''Here I am'' that's not a thing ever.

J. Aughenbaugh: Generally one of the criticisms of the federal courts in the United States is that these cases and these constitutional legal issues, Nia, take forever to get resolved.

N. Rodgers: Yes and to people who say that, I counter with go to India and tried to have a legal case. People inherit them from their parents.

J. Aughenbaugh: But that's the general either criticism. But the subject of this podcast episode listeners is a phenomenon known as the Shadow Docket. That's Nia, at least for us, unusual beginning.

N. Rodgers: Dramatic retelling I like to think.

J. Aughenbaugh: Yes. Dramatic retelling. The concept of the Shadow Docket is actually a relatively new one and constitutional law scholar, and he's a law professor at the University of Chicago. Will Bod.

J. Aughenbaugh: Wrote in 2015 of what he called the shadow docket, and the way he defined it is a range of orders and summary decisions that defied the Supreme Court's normal procedural regularity.

N. Rodgers: 2015, that's only six years ago or so.

J. Aughenbaugh: That's six years ago.

N. Rodgers: This is not a practice. It's gone on for 200 years since we first heard of Supreme Court.

J. Aughenbaugh: No, it's been going on the entirety of our country's history. Well, Baude's point is that the shadow docket was becoming a regular occurrence. The number of decisions that comprise the shadow docket was going up. To give you an example of a case on a shadow docket.

N. Rodgers: Yeah. How does the shadow docket work?

J. Aughenbaugh: Think about this. During the pandemic, the State of California, the Governor of California, issued a number of emergency executive orders so that the number of COVID-19 cases in California could be better managed. Could be put under control.

N. Rodgers: I remember that churches can't meet and singing groups can't meet and schools. He did a whole lot of physical distancing-type things. You can't be together because we need physical distancing.

J. Aughenbaugh: Yeah, according to public health, if you will, scholars and experts. California because it had such a high number of cases that were taxing the California hospital system so greatly, California imposed some of the more drastic, if you will, measures to deal with the pandemic. Now, as New just pointed out, one of the groups whose behavior was targeted by these emergency orders by Governor Newsom in California were religious groups. They were prohibited from meeting particularly those that would have singing during their services, etc.

N. Rodgers: That's the First Amendment question.

J. Aughenbaugh: That's right. A number of these religious groups filed suit in Federal Court claiming that the emergency orders violated the Free Exercise Clause of the First Amendment, and in particular, they argued, why were we being targeted when other groups particularly commercial groups were still allowed to meet if they enforce social distancing regulations? We weren't even given an opportunity to comply with social distancing. We were just ordered we cannot meet. The lower federal courts ruled against the church's challenges, ruled in favor of the State of California. The churches appealed to the Supreme Court, and the churches asked for an immediate suspension of the Governor's emergency orders as it applied to them. It was an emergency order, and the court, without extensive written briefs, without oral arguments, actually ruled in favor of the religious groups. That's an example of a shadow docket. There wasn't, if you will, an appeal where then the court had their clerks review the appeal and either make a recommendation to accept the case or reject the case.

N. Rodgers: Well, and with shadow docket, they don't even hear from the lawyers; do they?

J. Aughenbaugh: They do hear from the lawyers, but it's a compressed time frame and there's no oral arguments.

N. Rodgers: So the lawyers just put in written briefs?

J. Aughenbaugh: Written briefs. Then the justices voted, and then issued the order. But the order did not have an explanation. Typically, the orders that emanate from the shadow docket of the Supreme Court, those in the majority never offer an explanation. Those in the dissent are usually so upset that they will write dissenting opinions. But even that's not guaranteed. We have no explanation as to why the court said to the State of California what you did was wrong. That's part of the criticism of the shadow docket. By the way, there's a whole bunch of criticisms of the shadow docket.

N. Rodgers: That's my criticism, and part of it is because students in the future are going to ask for the opinions on those cases and we're not going to be able to give them to them. But also one of the things that I at least like about SCOTUS is that when they rule, they rule, and then they explain it so that if a state wants to fix it or if a state wants to avoid having that problem of their own, then they know where the other state went wrong. They know where the other party went wrong, so they can say, they bounced it on this reason, so if we make sure that we do it for a different reason, then we're not reiterating the same problem over and over. I don't like it if they don't explain it because then how do you know if you're breaking the rules when you do something?

J. Aughenbaugh: Again, this is much more complex. Understand this listeners, most of the Supreme Court's docket is dispensed without the court ever saying why they did something.

N. Rodgers: Because they just don't take cases. If I appeal, John Aughenbaugh hurt my feelings. Official John Aughenbaugh, not casual John Aughenbaugh. Official John Aughenbaugh hurt my feelings in this way, and they're like, "We're not taking your case." That's their way of saying the lower court the ruling stands.

J. Aughenbaugh: Yes.

N. Rodgers: We're not interested in litigating this because it seems to be fine to us. We're not involved. The courts did fine, and no, we didn't and sit down and be quiet, and then I have to go away.

J. Aughenbaugh: As we discussed last summer, in our summer of SCOTUS. My students learn this in my constitutional law and judicial politics classes, and it typically blows their minds. Well over 99 percent of all appeals submitted to the Supreme Court are rejected, and the court never says why. If you filed an appeal with the Supreme Court and the Court says, "we're not going to take the case", they're not going to go ahead and tell you why. Those who wanted to hear the case might go ahead and write an opinion as to why the court should have taken the case. But the justices who voted against it are like, "We don't want to hear it." That's it.

N. Rodgers: What you can assume from that is that the lower court's ruling was they agreed with it.

J. Aughenbaugh: Or as we also discussed last summer, there are strategic reasons why the justices may not want to hear a case.

N. Rodgers: Don't bring that now because it's too soon.

J. Aughenbaugh: The legal issue has not been clarified for us by the lower courts, we're going to hold off. Or the court might go ahead and say, "Yeah, we're not going to take an abortion case during a presidential election year."

N. Rodgers: Because we don't need even more drama. But don't think it's something along the lines of 1,000, 1,200 requests and they take like 70 cases.

J. Aughenbaugh: They get over 9,000 a year.

N. Rodgers: That's what it is, so it's huge.

J. Aughenbaugh: They take a huge number and they typically only take somewhere between 70-80 every year. Again, that's part of the shadow docket. The issue in regard to the shadow docket is that increasingly justices are using this to issue emergency orders that stop lower court proceedings from continuing.

N. Rodgers: Wait, so the shadow docket we can think of in two separate chunks. There's the normal chunk of we're just rejecting even hearing this because we're not interested for whatever reason, which the court has regularly done. It's not a big thing. People expect it. Of all of those cases people know they're not going to get hurt, it's a needle in a haystack. You're not going to get hurt. But what you're talking about is that second chunk.

J. Aughenbaugh: Where the court issues emergency rulings.

N. Rodgers: They actually do things.

J. Aughenbaugh: They basically stop a litigation that was underway in the lower courts, or with the example, I gave about the state of California during the pandemic, actually stopped the state government from continuing a practice that one group was like, "You're harming us and it's violating our constitutional right." That's happening with more regularity, and that's where Baude et al were like, "What's going on here?" To give you an example, Nia just so the listeners understand what we're actually talking about. I'm trying to find the name of the scholar.

J. Aughenbaugh: Another legal scholar, Stephen Vladeck, has described that basically, in roughly the last 5-6 years, the Supreme Court has been receiving more emergency quarters. We saw this a lot during the Trump administration. Basically, what would happen is the Trump administration would issue an executive order. Somebody would go to Federal Court, and say, "This executive order is violating my constitutional or legal rights." A lower court would issue an injunction stopping the implementation of the executive order. The Trump administration would immediately file an appeal with the Supreme Court, asking the court to lift the injunction. According to Vladeck, this happened over two dozen times during the Trump administration. Typically, the votes on the Supreme Court were close, 6-3, 5-4. They were almost always the conservative justices overturning the injunction. The liberal justices wanting the injunction to be maintained. According to Vladeck and other critics, this is creating a dangerous, if you will, behavioral precedent for the court. Because these are not your garden variety, I'm appealing a lower court decision. There's going to be the normal written briefs, oral arguments. The court's going to be deliberative. The court's going to issue a decision. The opinions will explain why the government official's behavior was or was not constitutional or legal. What we're talking about here is you had a presidential administration that was just like, "We got a bunch of lower court judges who don't like us. They're stopping our policy initiatives dead in their tracks. We're going go to the Supreme Court, and have the Supreme Court basically go ahead, and tell the lower courts, 'Stop doing that.'"

N. Rodgers: The Supreme Court was acting politically, not judicially.

J. Aughenbaugh: Well, that's one of the critiques. That is one of the critiques.

N. Rodgers: Well, that makes me irritable. In case, you're wondering.

J. Aughenbaugh: There are a number of critiques. The court did this a handful of times during the pandemic. Again, policy scholars and those working in state governments were like, "How can we go ahead and respond to a pandemic, if Big Brother, in the form of the Supreme Court, is looking over our shoulders and second guessing our work?"

N. Rodgers: Because I've been hanging around with you too much, part of me would say that there is a legitimate fear in a situation like a pandemic. That a tyrant could, in fact, squish your constitutional rights. That it would be the responsibility of the court to attempt to prevent that from happening. I can understand, while I personally do not agree with allowing churches to continue to meet, because we knew that choirs and singing, not necessarily the church, but we knew that that expulsion of breath was carrying COVID. We saw it. We could track that is happening. I understand nuisance attempt to stop it, but I also understand the court saying, "No, the First Amendment is very clear about people's right to gather. Do you have the right to prevent people from getting sick, if they want to get sick? Because they want to be at church." That's a complicated issue, and I can understand the choir to avoid tyrancy.

J. Aughenbaugh: Well, the church's argument was, why are we being treated worse than businesses?

N. Rodgers: How come Walmart can be open, and the the church can't?

J. Aughenbaugh: Not for nothing, folks. Many liberals and progressives throughout our country's history have remarked business interests are not necessarily protected by the content of the US Constitution like religion is.

N. Rodgers: Other businesses are people. She said literally.

J. Aughenbaugh: But that gets into another debate. On a political consistency argument, you can't go ahead, and say that the courts claiming that businesses are individuals that are protected by the Constitution. While then at the same time, saying businesses are more important than religion, which is actually specifically enumerated in the Constitution. This gets complicated in a hurry.

N. Rodgers: I understand that desire to protect the constitutional rights, but I can see where this slide into. We always agree with the political party that appointed us. Then it moves you into the gray area of, are you really protecting individual constitutional rights? Or are you putting your thumb on the scale of politics?

J. Aughenbaugh: There are other criticisms.

N. Rodgers: Anything titled shadow. At that involves the government automatically should be a criticism because transparency is what sunlight is the greatest disinfectant. I can't remember which of the Justices said that.

J. Aughenbaugh: That was all over Wendell Holmes.

N. Rodgers: If you have to do it on the sly, that should tell you something.

J. Aughenbaugh: That also feeds a broader criticism of the Supreme Court, historically. Listeners, if you go back to our podcast episodes from last summer of 2020, the summer of SCOTUS. The Supreme Court is probably the least transparent of the three branches of the federal government. With the exception of oral arguments, and then the publication of the opinions, the rest of what the court does is in secret.

N. Rodgers: I'm okay with how they deliberate being secret because we get the opinions. Because we get an actual written explanation of what happened. It's like the CIA. When the CIA says, "We're doing some stuff." Then they come back later, and they say, "We have conquered Canada." We're like, "That's what you were doing." At least, you know what happened. But with this shatter docket, you don't get that. You don't get, even afterwards, transparency. You don't get any transparency.

J. Aughenbaugh: No. You're tapping into a lot of the critiques. On the flip side, let's be fair and balanced here.

N. Rodgers: I don't want to, and you can't make me actually. Because civil discourse.

J. Aughenbaugh: The institutionalist mania is not surprise that the Supreme Court shadow docket has grown. We saw this in the 1950s and 60s when some of the liberal justices of the Supreme Court used the courts, if you will, shadow docket to put a stop to government practices. Whether it was segregation or the death penalty. Or in the case of Justice Douglas, when he wanted to go ahead and protect the environment before the United States Congress, even past any environmental legislation, would just go ahead and use the shadow docket for the wrong purpose. Yeah.

N. Rodgers: You have to be careful. This is one of those instances where you like it when it's your side, that does it and you don't like it when it's the other side that does it. Like it comes back to gerrymandering and other things that happened in politics that are very partisan, which is, oh no, I'm fine with it protecting the environment and stopping the death penalty because I'm liberal, but when it's upholding the Muslim ban, that's unacceptable. No, you don't get. I mean, that's not how it works. If it's bad in one instance, it's bad in all the instances.

J. Aughenbaugh: Yeah. Again, the institutionalists than me. Some scholars have pointed out, the Supreme Court shadow docket has grown as the number of lower federal court judges have been willing to issue nationwide injunction stopping typically presidential and gubernatorial administration's executive orders.

N. Rodgers: You said because the Supreme Court feels like their toes are being stepped on. No, you didn't. It's our decision to make national circuit that's up to us . Really is that part of it? Is that part of it. If we don't step on this, then we're not going to have jobs like we're not going to be.

J. Aughenbaugh: Well, not so much. It's not so much that they're not going to have jobs or they're not going to be relevant. But it is I think a matter of protecting their turf. Because you basically have lower federal courts issuing injunctions, stopping something across the country. In terms of democratic theory, remember folks, the federal courts are not democratic. They are unelected. When, for instance, you gave the example of the Ninth Circuit Court of Appeals, one of their judges issues a nationwide injunction. That's basically telling everybody in the country, your elected representatives did something wrong and we know better.

N. Rodgers: The Nineth is in California, isn't it?

J. Aughenbaugh: Yeah. It covers this. Yeah. It covers Alaska, Hawaii, Washington, Oregon, California, part of Arizona, Nevada, and I want to say part of Idaho.

N. Rodgers: But it's relatively liberal in its.

J. Aughenbaugh: Oh, it's been liberal since it was basically graded or in the Carter administration.

N. Rodgers: Think about, if you're from Mississippi and the Ninth District makes a ruling that affects you in a very conservative state. You're like, wait, what just happened here? Like, I could see where that would annoy the supremes who would say, no, that's not how this.

J. Aughenbaugh: This is not how it works and oh, yeah, by the way.You guys in part and I was having a conversation with another constitutional law scholar across in another part of the country. This is an example of institutions within the federal judiciary having a conversation.

N. Rodgers: I'm having to think of it as having a fass.

J. Aughenbaugh: Yeah. They're having fass. They're raising their voices at one another right now.

N. Rodgers: One of them is in the bedroom and one of them is in the bathroom. They're yelling to each other. I'm sorry. I'm picturing the way people have arguments in their homes I'm just going to put it injunction on this thing and no, you're not going to do that because then I'm going to, yeah.

J. Aughenbaugh: Well, I mean, the analogy I used with this other scholar was just of like the conversations I have with my daughter after dinner. I'm cleaning up after dinner and Mackenzie wants to go in and do something and I tell her no. She yells at me. I yell at her and she is in her bedroom, but I'm actually in the kitchen. She knows the only way I'm going to hear because I got the water running and I'm starting a dishwasher is if she yells at me. I go ahead and I yell back and of course I got the louder voice. Then she uses like a why are you yelling at me and I'm like Because I can and blah, blah, blah. Within a half hour 40 minutes we're watching one of her favorite movies on Disney. We're eating popcorn and everything.

N. Rodgers: That's going to save and share in a bowl of popcorn and hanging out.

J. Aughenbaugh: Everything's fine. But right now we have institutions within the federal judiciary that are having a conversation. As some scholars have pointed out, the Supreme Court's response, probably hasn't been the best Nia.

N. Rodgers: Because I said so. What kind of rule is that? Yeah. Why do I have to go to bed right now because I said so.

J. Aughenbaugh: On the other hand, you still have lower federal court judges that are issuing nationwide injunctions.

N. Rodgers: Everybody has to go to bed right now. No they don't. The older kids can stay up later.

J. Aughenbaugh: By the way, it's not just lower federal court judges appointed by Democratic presidents. It also holds for lower federal court judges appointed by Republican presidents. The week we're recording this podcast episode, a district court judge in Louisiana went ahead and told the Biden administration that the Biden administration suspending the leasing program for oil and natural gas, violated federal law. Almost immediately, and by the way, he issued a nationwide injunction basically telling the Biden administration, You can't suspend these leases and the Biden administration wants to suspend the leases for environmental reasons. The Biden administration wants to go ahead and force Congress to enact. some environmental laws. One of the ways you can put pressure on Congress is to go ahead and suspend a program that generates hundreds of thousands of dollars every year for the federal government's revenue stream.

N. Rodgers: Also annoying the snot out of those companies to have lobbyists who are immediately going to pick up the phone and start calling your senators and their representatives saying, What the heck, get this fixed.

J. Aughenbaugh: Get there's fixed. And again, not for nothing. This is a district court judge in Louisiana. Louisiana processes all bunch of the United States petroleum.

N. Rodgers: But a whole bunch of that is extracted in Alaska, and California, and Oklahoma.

J. Aughenbaugh: Etc.

N. Rodgers: I make it the rule for everybody.

J. Aughenbaugh: I'm making the rule for everybody. I have friends, environmentalists, many of whom are Democrats, liberals who are like that nationwide injunction that he issued is wrong. I was just like Really. Where was your outrage when district court judges during the Trump administration said that the Muslim ban executive order was also wrong because these were nationwide injunctions.

N. Rodgers: The guy in Hawaii made an injunction for the entire United States.

J. Aughenbaugh: Yeah. Then we're like, well, but it's different.

N. Rodgers: Yeah. Because it's the other side.

J. Aughenbaugh: Yeah. The shoes on the other foot now. Now you have this Supreme Court. Increasing the activity on its shadow docket, which again, scholars across the ideological spectrum are like, This isn't a good thing, Supremes for you to be doing this. As you pointed out, Nia, the value of the Supreme Court issuing full-blown ruling with a whole bunch of opinions is that it explains why this behavior violated the Constitution or the law.

N. Rodgers: How to assimilate that in the future.

J. Aughenbaugh: Yes, if one of the purposes of law is to setup behavioral norms, how do we know why this was problematic? How do we know in the future if you're a governor of a state? I'm not entirely sure if there's an emergency order is going to violate the Constitution. The Supreme Court issued this emergency growly Nino in the case of blah, blah, blah, during COVID-19. But they didn't issue any opinion. I don't know.

N. Rodgers: What it applies to.

J. Aughenbaugh: Again, that's one of the critiques. These are emergency orders, so we don't know if it only applies to these particular conditions or do they apply to other conditions in the future?

N. Rodgers: Did the Supremes put something out on the shadow docket to comment on the Louisiana.

J. Aughenbaugh: Not yet, because the Biden administration has 30 days to appeal. So we don't know. But if it's important, I won't be surprised if the Biden administration says, "Okay, I'm appealing to the Fifth Circuit Court of Appeals," which by the way, they'll probably lose because the Fifth Circuit Court of Appeals is one of the most conservative in the country. But then they would appeal to the United States Supreme Court.

N. Rodgers: Part of what it sounds like, the shadow docket, maybe the positive, because I'm not real sure how I feel. No, I'm pretty sure I don't like the shadow docket. But I don't like it because of documentation. I do think that in some ways the court is saying to lower courts, "We've already given you guidance in this area. You don't get to nitpick us to death with things you don't like," right?

J. Aughenbaugh: Yes.

N. Rodgers: Like the Muslim ban got rewritten and then injunction again. There was multiple injunctions with that.

J. Aughenbaugh: Yeah, and then it went to the Supreme Court, and the Supreme Court's vote in Trump versus Hawaii was 5-4. It could have gone either way. But with some of these injunctions, you see district court judges basically bating, challenging the Supreme Court to overturn them. I think increasingly some of the justices on the Supreme Court, Nia, their attitude is, "Enough of this."

N. Rodgers: We work together as a system or we don't. You don't get to make a law unto yourselves.

J. Aughenbaugh: That's right. Again, you mentioned the Ninth Circuit Court of Appeals. There were certain appellate judges on the Ninth Circuit who said publicly, and I'm thinking of, may he rest in peace, Ninth Circuit Court of Appeals, Judge Stephen Reinhardt. Reinhardt even said publicly. He was asked by a reporter, "You don't seem to mind issuing rulings that might be overturned by the Supreme Court." His response was, "Well, they can't catch them all."

N. Rodgers: Well, at least he was honest.

J. Aughenbaugh: I think some of the justices on the Supreme Court after awhile are like, we're tired of this. Yes, we're going to entertain this emergency appeal. By the way, Nia, you see the use of the shadow docket quite a bit with appeals to death sentences. Where you have somebody on a state's death row who has appealed 8, 9, 10 times. Finally, he goes to the Supreme Court because their attorney's claiming yet again, it violated the Eighth Amendment's prohibition on cruel and unusual punishment, and some of the justices are just like, "Okay, yeah, appeal denied. " Because they're tired of it. They're tired of it.

N. Rodgers: Probably many of them would like to see that dealt with legislatively as opposed to court-wise.

J. Aughenbaugh: Yes.

N. Rodgers: If this is cruel and unusual, then the laws need to change. But that's not us. That's the legislative branch.

J. Aughenbaugh: To that point Nia, a few years ago when Justice Scalia was still alive and I was in attendance for a conversation that Scalia was having with his colleague who's still on the court, Steven Breyer. One of the questions from the audience members was that it appeared to this audience member that the Supreme Court was becoming increasingly acerbic in cases dealing with laws passed by Congress. Both Scalia with much more energy than Breyer, but both Scalia and Breyer, both basically came out and said that they were growing weary of the federal courts having to clean up or address issues dealt, not all that well, by the political branches. To your point, you really get a sense that with some of the emergency orders on the shadow docket, the Supreme Court is just, some of the justices were just like, "Are you serious?" We're not even going to give you guys an opportunity to submit written briefs, do oral arguments, et cetera. Because what you are doing is so obviously wrong, and we're tired of this. We would prefer that you guys go ahead and address this without expecting us on the federal judiciary to clean up your mess. Again, this is institutions talking with one another.

N. Rodgers: Semi-civil discourse.

J. Aughenbaugh: Yes, semi-civil. This is where if you work in a large organization, your boss says, "Send me a memo," and you know full well that the memo probably won't be read and will never be acted on.

N. Rodgers: That's boss speak for, "I'm done with this topic now."

J. Aughenbaugh: But it is problematic. Because again, historically the court hear so few cases that when it does, we want the court to resolve the issue.

N. Rodgers: We want guidance.

J. Aughenbaugh: We want guidance. Where we typically get guidance is not only the ruling in the case but the opinions.

N. Rodgers: What is the legal underpinning that explains why you believe what you believe? I think it comes back to our entire court system is based on precedent. It's based on the idea that we build on the law brick by brick. So being able to follow the bricks down to the foundation helps you understand what to expect in future behavior of the court, which also helps for the legislative branch to write laws that are more likely to be upheld within the judicial system. It helps the system work better when the justices explain what they like and don't like about something. Sorry, not like and don't like, but what's constitutional and not constitutional. Because I don't think sometimes if like and constitutional are the same thing.

J. Aughenbaugh: Oh, no. Frequently, you see justices vote in cases to where they are clear. They didn't like the outcome, but they thought that the constitution or the law dictated a particular ruling.

N. Rodgers: Right. That's holding your nose and drinking cough medicine. In justice, you have to do it.

J. Aughenbaugh: Yeah, sure. No doubt about it. Again, the shadow docket is not transparent. It issues, if you will, emergency orders whose effect is temporary in many instances. If the value of precedent is that it helps establish what is or is not acceptable. Again, I tell my students all the time, you and I have had this conversation. One of the primary purposes of law is to set up behavioral norms, so that people know what is or is not acceptable behavior. But if the court's not offering an explanation. Again, I'm going to go back to interactions --

N. Rodgers: Then it's spring break in Fort Lauderdale, anything goes --

J. Aughenbaugh: It's like my --

N. Rodgers: -- until the adult show up.

J. Aughenbaugh: -- interaction with my daughter. The older she gets, the more she wants to know, why? She's not one of those annoying kids like I was at her age, to where I ask why because I always asked why. When Mackenzie ask why, she wants to understand why she can or cannot do something.

N. Rodgers: Well, because she's also thinking in terms of, "Well, if I can't do that, can I do this?"

J. Aughenbaugh: Yes. Again, with the court shadow docket, we're not getting that. I understand why the court's doing this, I don't necessarily like the phenomenon, but I understand why the court's doing it. But I think the court is going to have to come to grips with the fact that many of us who rely upon the court. When I say us, I mean society generally. It's not only these other governing institutions, it's the public. I got to admit Nia, during the pandemic I saw governors in the various states issuing orders and I was wondering. Why is it this business but not that business has to shut down? Why is it this group, but not that group? Then with our liberty being affected, I could understand why certain groups were just like --

N. Rodgers: No.

J. Aughenbaugh: "No, we're being targeted. "

N. Rodgers: Right. We're being targeted. Newsom's response with the religious was, "No, I'm shutting all churches down." Like that made it better. Do you know what I mean? He was trying to say, "Oh, I'm not picking on any one religion," but you've missed the point. Which is, you're picking on religion. You're picking on people who have a very specific desire and you're not even giving them an opportunity. In some of the mega-churches, they probably could have worked out physical distancing. Then they could have just not had the choir, they could have piped-in music. They could have done it safely.

J. Aughenbaugh: Or think about the debate, for instance, in our own state, where it wasn't so much religion versus commercial.

J. Aughenbaugh: It was various businesses. They were like, ''Well, wait a minute, why is that business still allowed to be opened but we're not?'' Right?

N. Rodgers: Right. How can 1,000 people crowd into a Walmart, but nobody can go to a gym? That doesn't make any sense. Gyms could say, ''Okay, we're going to mark off the equipment such that only eight people can use this room at a time.'' I'm sorry. I've mentioned Walmart twice in this and I know I have a slight bitterness when it comes to that. Part of me was really upset that during the pandemic, lots of small businesses were forced to close, but the mega businesses somehow managed to keep themselves open. They were allowed to be open. You can't go to a stadium for a rock concert, but you can go to a Walmart. Walmart has as many people on a Saturday night as a rock concert does.

J. Aughenbaugh: Yeah, particularly with your smaller venues.

N. Rodgers: Exactly.

J. Aughenbaugh: Again, part of it was what was the guidance coming from the federal government in regards to social distancing? Your large stores could accommodate that more. But on the other hand, many of the concert halls could go ahead and do this.

N. Rodgers: Exactly.

J. Aughenbaugh: Again, for listeners, Nia and I deal with young people a lot, and many of them go to gyms. I heard this all the time from our students, Nia. Why is it that my gym has to close, but I can go to Target and Walmart and Lowe's and Home Depot? Right?

N. Rodgers: Right. Home Depot. Even if you're going to argue to me food during a pandemic, I could probably be like, ''Okay, you know what? The grocery stores.'' Even though it frustrated me there were a lot of small stores which were also grocery, were not able to stay afloat, and that's also part of it is, it came down to commercial, who could afford to stay up and who could afford to go half-closed. But the idea that somehow you have to have home improvement, I totally would understand if they said the only people who are allowed in Lowe's right now are contractors, are people for whom this is their business, and they must do this business in order to survive as a company. Well, then let's make some arrangement for them to come in one at a time, get their stuff, and get out. But John Aughenbaugh, who decides to put a chandelier in his kitchen because he's got nothing better to do for the next three days, that's a different animal entirely. That was a want, not a need.

J. Aughenbaugh: Okay. But at that point, Nia, I then go ahead and I get to go ahead and draw upon the takings clause of the 5th Amendment because this is my personal property. If I want to update and improve the value of my property, the state not letting me go into a Home Depot to do that violates the takings clause of the 5th Amendment.

N. Rodgers: Yeah. It's a giant kind of worms, right?

J. Aughenbaugh: Yeah, right.

N. Rodgers: But can I say though as my last comment on the Shadow Docket?

J. Aughenbaugh: Yes.

N. Rodgers: I am not surprised that it is getting bigger because rarely is the individual when given access to a power that says, "No, I'm good." Rare is that individual. In fact, I would say so rare as to be unicorn-like in rarity. Because we humans as natural creatures are greedy. We're wired to be that way in certain ways because it helps us survive. There's certain positiveness to greed. When you come across a patch of berries, eat them all because they're good for you and they taste good and whatever it's good for your health, that kind of thing, but I've never seen a person who had a lot of power, who'd be like, "Let's use this only in a limited way."

J. Aughenbaugh: You and I have talked about this before in other podcasts episodes. One of the fundamental assumptions of the framers of the US Constitution was that those in government positions would be ambitious. They will want to expand their power. But knowing did they predict that, we've actually seen this in regards to the evolution of two particular government positions, the Office of the President at the national level and the Office of Governor at the state level. There is a whole bunch of literature and political science students have been taught this for decades. When Congress at the national level and state legislatures at the state level have granted more authority to executive branch occupants, executive branch occupants have done what with that delegated power, Nia?

N. Rodgers: They have used that inch and taken a mile.

J. Aughenbaugh: Oh my goodness, yes. Right?

N. Rodgers: Looked off into the horizon to say, it's that a few more miles I can take? I'll be back in a little while. Excuse me. You're just saying that the Supreme Court is jealous because?

J. Aughenbaugh: I'm not saying the Supreme Court's jealous, I'm saying that the Supreme Court saying, "Okay guys, we're going to push back," and that's part of separate but shared powers. Hey, we're even seeing this now, Nia, in various states where state legislatures are passing laws to take back emergency power from governors. We haven't seen it in the Commonwealth of Virginia, but I've seen it in at least six states as the pandemic is wrapping up.

N. Rodgers: I'm okay with Congress doing some of that too. Congress has seeded a great deal of responsibility and power to the president over time and there's never been a president who said, "No, I'm good, thanks. You all go ahead and take care of that." That's never happened and it's not going to, so they're going to have to fight to rebalance all of that give-and-take with all of the different branches.

J. Aughenbaugh: Yeah. Again, I've already said it during this podcast episode. I don't like the increase in the court's shadow docket. On the other hand, the conversation that has been created between the Supreme Court and the lower courts. The Supreme Court in certain actors within the political branches, I think is a good thing, not a bad thing. It's a good thing. The system is actually working, because we want the institutions to go ahead and say, "Yeah, whatever" or "No, we have a problem with this and this is how we're going to push back, so what's your response?" Okay?

N. Rodgers: Okay.

J. Aughenbaugh: That's the system working. I hope that the lower courts begin to reign in their desire to issue nationwide injunctions. On the other hand, and we've discussed this, why is it that one part of the country can do X because the courts have said so, but another part of the country they said "No, you can't do that." Again, these are parts of a federal system and separate but shared powers.

N. Rodgers: Just because it's ugly doesn't mean it's not working.

J. Aughenbaugh: Yeah. A lot of democratic governing is not necessarily beautiful.

N. Rodgers: Right. We're talking little de-democratic governing.

J. Aughenbaugh: Yeah, right.

N. Rodgers: If the sausage being made as it, we're sorry vegetarians who listen to the podcast, but it's not a pretty process most of the time.

J. Aughenbaugh: Yes.

N. Rodgers: I don't like it, but I take your point that it shows that there's the actual work being done.

J. Aughenbaugh: Yeah. It may be necessary for this give-and-take, push and pull, which is far better than just one government actor being able to go ahead and say, "Yeah, I don't like it, so I'm going to do this." Really?

N. Rodgers: Yeah. Make the rule for everybody.

J. Aughenbaugh: Yeah. Anyways.

N. Rodgers: Okay. I don't like it, but I hear your point and I appreciate it and it makes it make more sense to me why J. Rob is letting it happen. Because he tends to be an institutionalist and he tends to be pretty conservative. He's letting it happen because he thinks that conversation needs to be held too. Which means that you and J. Rob should go play golf together and then you should come back and gossip with me about how that was.

J. Aughenbaugh: I'll call up the Office of the Chief Justice of the Supreme Court and see if I can get on his calendar for that round of the clock.

N. Rodgers: Okay. Well, until then, we shall meet again next time.

J. Aughenbaugh: All right, Nia. Thank you.

N. Rodgers: Thanks.

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