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From LeverNews.com — Lever Time is the flagship podcast from the investigative news outlet The Lever. Hosted by award-winning journalist, Oscar-nominated writer, and Bernie Sanders' 2020 speechwriter David Sirota, Lever Time features exclusive reporting from The Lever’s newsroom, high-profile guest interviews, and expert analysis from the sharpest minds in media and politics.
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Frank: [00:00:00] Hello and welcome to Lever Time, the flagship podcast from The Lever, an independent investigative news outlet. I am producer Frank Capello filling in for David Sarta this week, who is on vacation. on today's show, we will be talking about this Supreme Court's Shadow Docket. Now if you've never heard of the shadow docket, that is kind of the point of the shadow docket. These are the cases that occur outside of the court's regular docket, meaning they don't receive nearly as much public scrutiny even though they carry just as much legal weight. If you care at all about the outsized power being wielded by the Supreme Court and its extremist conservative majority, then this is an extremely important topic.
So today we'll be sharing David Sirota's interview with an author of a new book about the shadow docket Who explains everything you need to know about these obscured court [00:01:00] cases
for our paid subscribers. We are always dropping exclusive bonus episodes into our Lever Premium podcasts feed. This past Monday, we published David's interview with media critic Norman Solomon about his new book War Made Invisible How America hides the human Toll of its military machine. The book details how the United States military has been in a perpetual state of war since the US invasion of Afghanistan in 2001.
Wars that have gone Massively under-Reported by the media. Again. You can check that out on the Lever Premium Podcasts feed. If you want access to our premium content, head over to lever news.com and click the subscribe button in the top right to become a supporting subscriber.
This will give you access to the Lever Premium Podcasts, feed exclusive live events, plus all of the in-depth reporting and investigative journalism that we do here at the Lever. The only way independent media grows and thrives is because of passionate supporters and word of mouth, and we need all the help we can get to combat the inane bullshit that [00:02:00] is corporate media.
Now, I'm not gonna spend too much time speaking on my own today with David absent, but I did wanna highlight some new reporting that we've just done over at the Lever, in regards to the Medicaid redetermination process. at the end of 2022, president Biden signed legislation ending the pandemic era requirement that states maintain Medicaid coverage for all beneficiaries.
This has allowed states to start cutting millions of people from their rolls. and Some experts estimate this could result in upwards of 17 to 24 million people losing their health insurance coverage. So the story that we just published at The Lever today written by Lever reporter Matthew Cunningham, cook is about.
one of the federal contractors involved in those Medicaid redeterminations. The company is called Maximus, and as I said, they're a federal contractor involved in privatizing government services, and they've been doing a lot of these new Medicaid eligibility reviews.
So, so far more [00:03:00] than 70% of those who have recently lost Medicaid coverage have been terminated, not because of ineligibility, but due to quote unquote administrative reasons. And these, could be anything such as not responding to a piece of mail fast enough, or, uh, getting dropped from a phone call with a redetermination specialist.
Things that are mostly innocuous mistakes.
Well, the reason, the lever published this story about Maximus, again, this is the federal contractor, that dominates 60% of the Medicaid eligibility market and handles various aspects of the redetermination process,
Based on their contracts with the federal government. Maximus and other contractors involved in these redeterminations have financial incentives to make Medicaid more bureaucratic, to make it harder to enroll, and to make it easier for recipients to get kicked off and lose their coverage.
So basically throwing people off of their health insurance is becoming a booming [00:04:00] cottage industry here, due to these Medicaid redeterminations. In fact, Maximus has increased its earning estimate by 100 million.
Its share prices risen by nearly 50%, and its c e o. Took home 6.3 million in compensation in 2022.
This is an incredibly important story. As I mentioned, millions of people will potentially be losing their health coverage, in the near future. And the fact that there is a private sector industry profiting off of this, A function that the government easily could have done itself. But like most things today has been outsourced to private interests, so that they can profit off of what should just be a very standard government function. Matthew did a really terrific job writing up the story.
Check it out@levernews.com. You can read the entire thing. And share it with your friends and family, if if you know anyone that's on Medicaid, you know, give 'em a heads up. Let 'em know that these redeterminations will be happening. And hopefully you can help someone keep [00:05:00] their health insurance coverage.
all. We should stop there because we should get to, uh, the main interview today, which is about the Supreme Court's Shadow docket.
But first we are gonna take a quick break. I.
Welcome back to Lever Time. For our main story today, we're gonna be talking about one of the most important functions of the Supreme Court that most people don't even know about, and that is the shadow docket. Now the story of the Supreme Court over the last several years has been one of right wing extremism and corruption led by Federalist Society Co-Chair and Donald Trump's former judicial advisor, Leonard Leo.
The conservative legal movement finally managed to solidify its six three majority on the high court. Since then, its docket of cases have resulted in what feels like a marathon of. Devastating decisions to everything from affirmative action to environmental regulation to the right, to an abortion.
On top of that, the Supreme Court has recently been barraged by a number of investigative exposes revealing [00:06:00] its underlying corruption, namely how Justices Clarence Thomas and Samuel Alito both failed to disclose gifts they received from conservative billionaires, both of whom had ties to, you guessed it, Leonard Leo, for these reasons.
The Supreme Court has gotten a lot of attention in the last several years, and rightfully so. But there is another extremely important function of the court that doesn't receive nearly as much attention, and that is the aptly named shadow docket. These are the cases that occur outside of the court's regular docket. Now, the regular docket are the big cases. Those are the ones we hear about.
Those are the ones that actually get attention in the media. So, But the shadow docket, these cases usually involve urgent or emergency matters, including requests for emergency stays, injunctions, and other types of temporary relief. And these cases are often decided through brief orders, meaning without oral arguments or full written opinions. For example, back in [00:07:00] 2019, a case challenging. Then President Trump's diversion of military funds to build his border wall was making its way through the lower courts. A federal district court judge ruled that the diversion was. Unconstitutional.
Then the Trump administration went to the Supreme Court with an emergency appeal to block the lower court order, and the justice's ruled in the Trump administration's favor by a five to four vote with no written opinion, effectively leapfrogging the regular legal process.
And now that the Supreme Court's conservative majority has essentially unchallenged authority to overturn any law, it doesn't like the shadow docket is being used more than ever. The Bush and Obama administrations petitioned the Supreme Court for emergency relief only eight times combined that is roughly once every two years. By contrast, the Trump administration asked the court for emergency relief 41 times. For all of these reasons today we'll be sharing David s Road's interview with Steven Vladeck.
[00:08:00] Steven is a professor of law at the University of Texas School of Law and the author of the new book, the Shadow Docket, how the Supreme Court uses stealth rulings to AMAs Power and undermine the Republic.
Sirota: Hey Steve, how you doing?
Stephen: Doing well. How are you?
Sirota: Good. I'm so glad you wrote this book. Uh, the Shadow Docket. I, I feel like it's this, it's this thing that's very shadowy, obviously, that overlays and infects and, uh, affects all of our lives in all sorts of ways that.
Many of us, arguably most of us don't even have any, uh, any understanding of any awareness of, so let's start there. The Supreme Court has this thing called a shadow docket. Why is it shadowy? What is it? Why should people care about it?
Stephen: Sure. I mean, I think the, the best place to start is, is with what isn't the shadow docket. So, you know, when we talk about the Supreme Court, we spend a lot of [00:09:00] time on what, for lack of a better term, might be called the merits docket. That is to say the 60 or so high profile, you know, very visible cases that the justices decide after a very, very lengthy process, um, through these long signed opinions that we get.
Throughout May and June, we're getting a bunch of them now. And I think there's a tendency to think that like that's the Supreme Court. That's what the Supreme Court does. The shadow Docket, it's a term that was coined by a Chicago law professor named Will Baude to describe everything else the Supreme Court does.
Um, and it turns out that most of what the Supreme Court does, at least by volume, is not these fancy signed merits decisions, but rather these unsigned. Almost always unexplained orders, um, that tend to get less attention, whether because they're less important in the aggregate or because they're less accessible because they don't say anything, or some combination of both.
Um, and Will's in insight, you [00:10:00] know, when he coined the term about eight years ago. Was that a lot of pretty important stuff happens in the shadows. Um, not necessarily bad stuff, but important stuff. And, you know, I wrote the book at least to fill in a decent chunk of that history and to try to argue that actually if you look at the last six or seven years, especially some pretty.
Significant and troubling stuff has happened in the shadows. Shadows, not because it's like some nefarious plot on the part of the justices, but shadows in the sense that like just not visible to the average person the way that the more traditional output of the court might be. The impetus for the book was, Hey, folks out there who care about the Supreme Court folks who are affected by the Supreme Court.
You ought to know about this, and you ought to be able to sort of understand and decide for yourselves, right, whether the court is acting inappropriately in this context, as well as that one.
Sirota: I just wanna clarify here, I mean, the court seems to me, does, does a couple things. obviously, it issues these rulings where there's all these arguments and they justify why [00:11:00] they're issuing these rulings and those justifications can set precedence, et cetera, et cetera.
Okay. That's like the Supreme Court that everybody kind of knows. Then there's, denying cases, they're just, they're just not gonna hear a case. A case comes up to the Supreme Court, Hey, we're arguing this in a, in a lower court. We're arguing this in state court, and the Supreme Court is like, yeah, we're not listening.
We're not gonna even hear that. Which in a sense, in a lot of cases is, is a sort of a ruling unto itself or at least that whatever the lower court did is what's going to to be for now. Then there's the shadow docket, which is. Sort of in the middle, like the court is, is actually making rulings, uh, but not.
Kind of justifying them. And, and, and I, I think this is the part that I think is, is so dangerous that it's one thing to say, listen, we're not gonna listen to a case because the lower courts, they got it fine. It's another, it's another thing to say, all right, we're gonna completely explain why we're doing [00:12:00] something and create, you know, precedent, common law, uh, justifications.
The public understands this. The shadow docket is really kind of, seems like. People on Mount Olympus just handing down rulings without even explaining them. And so I, I, I wonder if that's the way to, to look at it. And, and my question then to you is, um, what does that do in your mind to the legitimacy of the court, this legitimacy crisis, if the court can hand down these big rulings without even having to explain them.
Stephen: So I would say it's one sort of tiny clarification. I, I actually think denials of Sir Shira denying review is also the shadow docket. I mean, I
Sirota: sure.
Stephen: those, those rulings also can matter, but No, but I mean, David, what you're focusing on is what might call the sort of the emergency docket. This is the, the smaller slice.
Um, and yeah, I mean, let, let's just take a couple of examples. You know, in September, 2021, The Supreme Court allows Texas to put into effect a [00:13:00] incredibly controversial six week abortion ban, um, by refusing to intervene through an emergency order in a context in which it had just spent months intervening over and over again to block state laws in blue states, um, on, you know, novel religious liberty grounds, um, president Biden's OSHA vaccination mandate.
Blocked on the shadow docket, right. Um, Trump immigration policies, the border wall right unblocked on the shadow docket. And, you know, in the abstract, I don't know that it's necessarily bad that there are at least some rulings. The Supreme Court doesn't explain. The problem is that when you look at the body of rulings, David, right, the, the rulings tend to defy any neutral legal principle.
Um, and so those of us who've sort of studied the whole body say, well, maybe they're doing this because they don't like this kind of lower court decision, or maybe they're doing this because they are sympathetic to executive branch immigration policies. When you look [00:14:00] at that in this context, none of those justifications hold up because what you see in the pattern is you see the court favoring the Trump administration and red states.
Disfavor on the Biden administration in blue states and what would normally insulate the justices against charges that they're just voting on their partisan policy preferences is the rationale that we don't have. And so the justifications, you know, the, the court does not expect us to agree with the principles that are espoused in these decisions, but they expect us to agree that.
These are principled decisions and on the shadow docket, when most of these rulings have no explanation whatsoever, that really, really complicates the story, especially when, as we've seen over the last five or six years, the pattern looks far more nefarious.
Sirota: Right. So the judges are going out. I mean, you know, Amy Coney Barrett says, you know, we're not a bunch of political hacks. Uh, Clarence Thomas goes out, uh, says, you know, he's worried about the Supreme Court's, uh, legitimacy in the, in the public's mind. Obviously [00:15:00] John Roberts has, has indicated similar concerns.
Meanwhile, they're handing down these, these, uh, monumental rulings without even explaining them, without even, uh, offering, uh, kind of a legal architecture or an, or an argument architecture for why these rulings are happening. Let me ask a technical question then. how does the court, for those who don't know, how does the court decide?
Which cases to take and, and put on the merits docket, where you're gonna get a whole explanation. And how does it decide, uh, whether to use the shadow docket? Like what's, what's the mechanics of that process?
Stephen: So it can vary. I mean, so, so let's just talk through a typical case. So a typical case that gets to the Supreme Court gets thereafter, uh, usually years right, of litigation in lower state or federal courts. Both the federal courts and state courts, they have these multi-level court systems. And so by the time the Supreme Court is usually asked to take up an appeal, a a, a petition for a WR of cer Shira, cuz we use obscure [00:16:00] Latin to confuse everybody.
Um, the case has been litigated. The factual record has been developed, the arguments have been made, the lower courts have weighed in, and at that point the parties fight over whether the Supreme Court should step in. And in well over 99% of the court's cases, it's up to the justices.
Whether it's step in, there are almost no cases the court has to hear today. That actually wasn't true historically. That's mostly a modern phenomenon. Um, and also an important part of understanding how the Supreme Court came to have all this power, right? Cuz they, they can pick and choose the cases they hear.
But you know, David, the question is what tends to bring a case to the emergency side of the docket? Is instead of waiting with a 2, 3, 4 years for the case to get all the way to the Supreme Court, what if a party wants the Supreme Court to intervene right away? Um, because a lower court decision is incredibly disruptive, or, uh, a lower court didn't block a disruptive government policy that should be blocked for however long the appeal takes.
And that's where we get to this idea of [00:17:00] emergency relief, where the principle is we want the Supreme Court to adjust the status quo. For however long it takes the case to work its way, all the way through the court system. And the reality, and part of why I wrote the book was to put into historical context the court's recent behavior.
Historically, the court just did not do that very often. I mean, the court's general view was that emergency relief is the exception. Um, that it really should only be used in cases where there was a compelling argument for stepping in now versus later. And you know, David, for the better part of.
Gosh, 35 years from 1980 to 2015, that was typically, you know, focused on death penalty cases where you have someone who's about to be executed and you know, he has plausible objections to his conviction or his sentence, or his method of execution, and the court says, well, hey, maybe we should actually freeze the execution to give the courts time to work this out.
That [00:18:00] was the typical emergency application. That was the typical intervention by the Supreme Court. Those are big deals, David, but not in ways that affect all of us. Right? I mean the, you know, ruling up or down on whether John Doe can be executed tends not to have society-wide effects. Um, what shifts starting in the Trump administration is instead of waiting for.
Debates over statewide or nationwide policies to work their way all the way through the court system. The justices start intervening far more often, and at the Trump administration's request very early in cases to at least initially unblock Trump administration policies that lower courts had blocked.
As time goes on, this starts spreading beyond the Trump administration to blocking state covid mitigation measures to unblocking, um, congressional district maps after the 2020 census that have been blocked by lower courts. And so we start to see the Supreme Court through emergency orders actually stepping [00:19:00] into every single type of contentious public policy dispute at a very early stage and in a context where historically, The justices were not inclined to explain their intervention, but now the interventions are producing massive effects.
Sirota: I mean, what's, what's kind of crazy, although I, I guess, I guess nothing's crazy anymore. Nothing's shocking anymore, is that, these rulings, these emergency interventions are coming from a court. Dominated by a conservative movement that has spent decades be whaling and bemoaning, uh, activist judges.
Right. I mean, like, like there was a, there's a fundamental tension here between a, in a con conservative movement that has said, you know, the ju judges don't need to make law. They only need to interpret law and they shouldn't be kind of intervening. And then a Roberts court that has made a habit of like, You know, going [00:20:00] out of its way to intervene, uh, and again, intervene without explanation.
Now that brings me to, to, I mentioned John Roberts. I wanna talk a little bit about his legacy here, or at least what he's spearheading. There's a part of your book where you say, when it comes to the shadow docket, Roberts votes have been the canary in the coal mine. Talk to us about the role that, that John Roberts has played here.
Stephen: Yeah, I mean, he's a fascinating character in the story. So, um, one of the common responses I get to, to, to the book, to other arguments I've made is that criticisms of the shadow docket are just progressives, you know, who are pissed off at the conservative majority doing anything they can. To attack the court.
And you know, John Roberts is a pretty powerful counter argument to that because he's dissenting in a lot of these cases. So there are a number of examples of cases where the court splits David five to four over whether to grant an emergency [00:21:00] application and Roberts joins the three Democratic appointees in saying, no, we shouldn't.
Um, this starts right after Justice Barrett is appointed. In late October, 2020, Barrett's first public vote on the court is to block New York Covid restrictions on the eve of Thanksgiving, um, over a dissent from John Roberts. And what's fascinating is in all of these cases, in that New York case, um, in the Texas abortion case, in the Alabama redistricting case, Roberts's dissents are always striking the same note, which is, I'm actually sympathetic to where the other five conservatives wanna go on the merits.
But this is not the way to do it. Um, right, that his, his objections are process based and institutional. Where he's saying the question for us on an emergency application is not what we think the law should be, but rather whether the lower court erred in a way that is so egregious as to warrant some kind of extraordinary intervention.
He says, that's a high [00:22:00] bar that goes beyond just what do we think the answer is, and I think it's really telling that John Roberts. No fan of abortion. Affirmative Action. The Voting Rights Act, I mean, you name it, is standing up and saying, actually, this is not what we should be doing in these cases.
Sirota: I also want to ask the, the historical question, which is empirically speaking, how different is this era from. Past eras. I mean, obviously the use of the shadow docket on very high profile cases, makes headlines in a way to, uh, make the public aware that this is going on. But I just wonder are is there data on, you know, I don't know, 50 years ago, 75 years ago, they weren't, or they were using the shadow docket or emergency orders?
Much less, uh, than they are now.
Stephen: Yeah, so I mean, it's, it's to do the data well is actually really hard. So a lot of it's anecdotal, um, as opposed to empirical. But one of the things I try really hard to do in the book is to contrast how the [00:23:00] court approached emergency applications really before 1980. Turns out that's really the tipover point for the process.
And before 1980, You know, the court got emergency applications, but again, we, we talked about this before, the norm was just, you know, a presumption against intervention. And David, the way the court processed them was radically different. Um, so in the old days, I say as you know, someone born in the 1970s, the way the court would handle emergency applications, it would go to the so-called circuit justice, the one of the nine justices who had geographic responsibility for the place where the case came from.
And the, the understanding was that the circuit justice would do all the work. Um, he'd, he'd hold oral argument oftentimes in chambers. Um, he would write an opinion explaining why he was or was not granting relief. But David, no one would confuse that for a ruling of the full court. And so the norm was if it was really an emergency, we'd have this one justice to sort of deal with the status quo in ways [00:24:00] that could have the least.
Possible implications for other cases and for other people, and you saw maybe one or two of those a year. Um, and almost never on the scale we're talking about, we're talking about nationwide or statewide policies. Fast forward to, you know, 2017, where all of a sudden you see the Trump administration by itself go to the court 41 times in four years, um, right after Bush and Obama, between them had gone eight times in 16 years.
Um, and the court is granting these at a, you know, sort of 75% clip. And so I, I think it's a combination of. More interventions. Interventions that are qualitatively more impactful because they are affecting a broader class of. Cases and the policies that they're acting against are directed toward a larger class of people.
Um, and interventions, David, that are, I think more at the heartland of contemporary public policy [00:25:00] disputes in ways that they actually weren't during the Bush and Obama administrations, where a lot of those interventions were actually technical cases where the justices actually didn't even pub no one dissented.
From what the court did. So it's not just that, it's more, it's that it's more with these broader qualitative impacts in contexts that are more obviously ideologically charged and politically divisive.
Sirota: I want to talk about how Congress and, and, and the legislation making process, uh, has impacted some of this. Uh, for instance, the Supreme Court Case Selections Act of. 1988, that's
Stephen: That old
Sirota: of these bills. Yeah. How does that affect this? How did that change the Justice's powers to pick and choose issues within cases, issues in which they wanna make a particular stand?
Stephen: Yeah, I mean this is actually, I think, a really subtle but important thing I try to do in the book, right? Which is to, to help folks understand not just this technical thing about emergency applications, but just [00:26:00] more generally how the Supreme Court came to have all this power period. Um, and the, the story that I try to tell is, you know, the court's power, David, to pick and choose its cases.
And as you say, to pick and choose within a case, what questions it's gonna decide was not a found in era idea. Um, right. For the first 101 years that the Supreme Court exists as an institution, it had to hear every case. Congress told it to hear, which meant two very important things. One, it meant it was up to Congress and not the justices to set the court's agenda.
Two, it meant that, um, the court was beholden to Congress in ways that were pretty significant because the more that the justices pissed Congress off, the more Congress would retaliate. Um, Congress famously cancels the Supreme Court's entire 1802 term. Um, Congress takes a case about reconstruction that it didn't want the court to decide in 1869 and just [00:27:00] says, Hey, Supreme Court.
You can't hear this case anymore. Um, right. The court literally sat in the capitol until 1935. And so what this all meant was not that the court was impotent. I mean there were major decisions from the court throughout this era, but the court was just one of the three branches and it was, it was part of this healthy inner branch dynamic.
Fast forward to, you mentioned the Case Selections Act of 1988. That's really the second of a two-part story that starts in 1925 where Congress progressively gives up and seeds to the justices the power to pick and choose the cases the court's gonna decide. And I think what that really, really signifies what, what it manifests.
Today is that the court no longer feels beholden to Congress at all. Um, it doesn't hear any case. It doesn't want to, it doesn't decide any question. It doesn't want to, in the context of emergency applications, it does whatever the heck it wants without any real pushback from Congress. And what that means is [00:28:00] even if you are a conservative who likes the bottom line of these rulings, it's coming from an unaccountable court.
And that's, you know, one of the real sort of, underlying themes of the book is that part of the story is really about accountability. Um, and about how an unaccountable court is a court that's gonna do things that are inconsistent and that make the court look political in ways that Congress has an institutional interest in pushing back against, but for various reasons just has stopped doing.
Sirota: I really want to talk, uh, about this cuz th this, I think everybody who's been following, for instance, , all the corruption mess at the Supreme Court, uh, is wondering why isn't anything happening here and. What you seem to get from most, uh, democratic lawmakers is, well, the court needs to clean itself up.
And you're like, wait a minute. What, what, what is going on here? you are a co-equal branch of government and you have power here. So I just wanna take, take a step into that for a second. What does the Constitution [00:29:00] say about. What Congress can do vis-a-vis the court system. I mean, as I understand it, Congress gets to, gets to set some of the limits of what case, what kinds of cases the courts can hear, and how the courts are structured, et cetera, et cetera.
I feel like this has all been forgotten, but just for folks who've, watched MSNBC and seen Democrats, you know, stand up there and say, well, I hope the court cleans itself up. Like, what could Congress actually do?
Stephen: A lot. Um, so, I think the, the key sta starting point is what Congress can't do. Um, so under Article three, right, Congress cannot reduce the Justice's salary. and Congress cannot, you know, kick them off without impeaching them. Um, David, that's it. Like that is it. Um, and so just to go with historical examples, we talked about how Congress canceled an entire term of the court.
Um, Congress, uh, controls the court's budget beyond the Justice's salaries. There's a really famous example. I say famous. There's [00:30:00] famous in my nerdy law professor universe. Um, there's a, an example known to nerds like me, where in 1964, in the middle of the Civil Rights era, Congress votes a massive pay raise to federal judges cuz they've been underpaid for actually decades at that point.
But the Supreme Court justices get the smallest of the pay raises by far. And Congress says, this is because we're dissatisfied with your rulings, like Congress dots, the pay raise, um, in substantive opposition to the rulings. Um, David till 1911, Congress used to make the justices literally ride the circuit.
Like they, they had to go travel around the country to hear cases. Something that really increasingly served no purpose other than to remind the justices who the boss was. The fact that the Supreme Court has its own building is only cuz Congress gave it to them. So, you know, the notion that like Congress is powerless, um, is just utterly belied by all of the history.
But it's also, again, [00:31:00] David, a symptom of this disease that what makes today's court different is not that there's a conservative majority. There have been conservative majorities on the Supreme Court before. Um, it's not that the court is overruling precedent at a higher clip than its predecessors. There have been aggressive overruling.
Eras before, it's that the court's not accountable at all. There's no sort of sense on the part of the justices that subjecting themselves to congressional accountability and oversight is actually part of their job
Sirota: And to be, to be clear, I mean, John Roberts, as we reported at the Lever, I mean John Roberts, when it comes to ethics as this, just one example, in one of his annual reports, uh, he said, uh, they were talking about, uh, a code of ethics Congress putting in place a code of ethics, uh, at the Supreme Court. And, and he said something to the effect of, he wrote this, that it, it hasn't been litigated.
Whether Congress has the authority to create a, a set of, uh, you know, ethics rules at the court. He said essentially they were willing to kind of accept that [00:32:00] they need to do something, but that he, he was, in other words, he was sort of flagging the idea that, Hey, wait a minute, I'm not even stipulating.
That you, Congress are allowed to do much of anything, which in a sense is a, is kind of an, a really extreme viewpoint, even though of course it was kind of couched in the, in the moderate sounding language of, of John Roberts. Now, this is a good, a good segue to something that's been in the news, uh, very recently, uh, which is this question of judicial review.
There have been a lot of, of progressives lately saying that Congress should use its authority. When it passes laws, uh, to limit the court's, uh, right to review the legislation that that Congress has passed. Now, unfortunately, um, this has now been used, very recently, or attempted to be used. Uh, To protect a fossil fuel pipeline.
Uh, this is in the debt ceiling deal. Uh, congress put in, in [00:33:00] language. This is Joe Manchin's pipeline deal. They put in, uh, language essentially saying the court system, the judicial branch cannot. Essentially review, uh, the legality of all of the issues surrounding, expediting this fossil fuel pipeline. Now, without getting into necessarily the details of the specific pipeline project, this question of judicial review, how much of, how much leeway, how much authority does Congress have to say, we've just passed a law and hey, Supreme Court, I don't care what you say about it, you're not allowed to review this, like, like, Is Congress allowed to do that?
What does the Constitution say about judicial review? Where do you come down on that?
Stephen: Uh, so at the risk of giving you a law professor answer, the answer is maybe, um, right. But, but I mean, let, lemme sort of put some, some, some, some meat on that. I mean, so. The short version is Congress has broad control over the Supreme Court's jurisdiction. Um, there's a, a pretty decent argument that Congress does not have [00:34:00] unlimited control over the Supreme Court's jurisdiction.
Otherwise there'd be no point in having the Supreme Court. Um, and so the, the sticking point, I teach this in the, the federal courts class in law school. Um, the sticking point is where's the line? So I mentioned, you know, there's this 1868 case where, Congress stops the Supreme Court from ruling on the legality of reconstruction because Congress is worried that the court might say it wasn't legal.
There are examples of that, but I mean, David, I think the, the broader point here is. What we call jurisdiction stripping, um, is yet another tool Congress has in its tool bag to exert leverage over the court, whether it's exercising that power to the constitutional line or even past it. And so part of why I wrote the book was because.
I think we fall into this trap of talking about the court as nothing more than the sum total of its merits, rulings. Um, Dobbs bad brewing. Bad Obergefell good. And what that really. [00:35:00] Neglects is that there are serious institutional problems with the court right now that ought to trouble even those who are less bothered by the bottom lines of the individual cases.
And yet we, we have this perverse way of talking about the court as an institution. Based on 1% of its work. Um, and without taking into account the much broader historical and institutional context, that tells a very different story about this institution. You mentioned the Chief Justice's year end report.
This is actually such a great example. So Warren Burger starts this practice in the mid 1970s. And he envisioned it as sort of tantamount to a State of the Union address. Um, this is Berger trying to elevate himself relative to the president. Like I too get to give a fancy speech every year.
Um, but, but the, but the sort of, the, the kernel of it that's so interesting is he, he styled it, he viewed it as a wishlist to Congress. Like, dear Congress, I'm giving you a year-end report on what we need. And that [00:36:00] persists all the way through his tenure. It persists through Rehnquist tenure as chief. It's only in 2009 in John Roberts, I think fifth year-end report that he stops asking for stuff.
Um, and then fast forward to the one I think from 2021 that you were quoting from, where he says, you know, we'll be the keepers of our own counsel about our ethics. Like this is the mentality. That we should all have common cause in pushing back against whether or not we agree or disagree with particular substantive rulings of the court.
And this is a huge part of why I wrote this book and of the sort of the conversation I'm hoping the book helps to provoke.
Sirota: Okay, so the last question then is, uh, if you had a wand and you could just wave it and, you know, 2, 3, 4 different things could happen immediately, what would they be? And I, and I wanna, I wanna. Also ask a specific question here, especially when it comes to, uh, denying cert, you know, the, the, the court just saying, no, we're not gonna hear this case.
Uh, arguably it must be what [00:37:00] hundreds of cases are coming to the court asking plea, you know, thousands, uh, please adjudicate our case. And it, it stands to reason that, that the court. Can't always, you know, provide a written reason why. They're just saying no. It's just like, it's that that doesn't sound necessarily feasible, although maybe you think, you think it is.
So, So short of that, when you tell us what you would wave a wand to fix this shadow docket problem, this legitimacy problem, this lack of accountability problem, like practically speaking, how can the court, Do, do better. How can we have a better institution? Uh, but also in a world where the court does have to deny, you know, thousands of cases and can't always provide a rationale for that.
Stephen: So, I mean, it's, it's the right question. I mean, the, To quote, uh, an old common law person, his name, Jerry Gunther. Um, the trick is whether we really want the court to be a hundred percent principled 20% of the time. Um, and, and, [00:38:00] and I think what, what it boils down to is I would not start with the cer Shira piece, the, the sort of appeals piece.
I would start with the emergency piece cuz those are the rules that have the most impact. And what I would say is, you know, the court should feel obliged and if necessary, be obliged to provide a rationale whenever it changes the status quo, whenever it grants. An emergency application denying application's fine.
Many of them might be borderline frivolous, but if the court is going to assert its power to step into a dispute and change what's happening, change the relevance, at least law on the ground, if not law on the books, it's gotta tell us why. Um, and if time does not permitted to right, then write a, you know, ha put a placeholder rule in effect until you can write.
Um, that's where I would start because, and this may sound trite, David, but I think it's an important point because it's in the rationales that the justices are most judicial [00:39:00] and least political. And I don't mean like least partisan, right? In their, in their behavior because it's the rationales that make them judges.
It's not the robes. Um, and if you believe that it's the rationales that make these. Nine people, judges, and not the robes they're wearing, then that's the commitment they ought to feel whenever they're gonna hand down a ruling that affects the status quo, that impacts thousands, millions of people like we've seen so often in the last six, seven
Sirota: To add to that, um, Now I say this with an asterisk and the asterisk being that, that many of these judges seem, uh, uninhibited , unconcerned with, with, uh, Sort of contradicting their own previous rulings and their own previous rationales. So that's my asterisk here. But in a normally functioning society, the judges would issue, uh, rulings or at least rationales on emergency orders and the like.
Which would tell society, okay, well look, the courts are basically saying we can't do it this [00:40:00] way, but they've left open the possibility of doing it that way, or this is their principle. And that's the, you know, I mean there's sort of this common law ish idea. I mean, I'm not a law professor, but this sort of idea that like the court is saying, like, here's our basic outlook on things and that's why we're explaining to you so that you as a society can then operate within those parameters.
Now again, the asterisk is that, uh, some of these judges feel, I guess, uh, free to just, just sort of ignore what they've previously written, you know, a year ago, two years ago, three years ago. So there's, that's sort of a separate problem, but, but I think that, that you're, that you're zeroing in on something that's so important, like the stability of a society, you know, uh, uh, it's a nation of law is not men.
Right, like that whole set of principles relies on in this case, the court saying here is a rationale for a set of rulings. And you with the society can operate within those parameters when, when there is no rationale. For these rulings. And I'll give you the last word on this, [00:41:00] it it, it leaves society, I guess in, in a certain way guessing.
It's not just that the institution becomes, uh, ha has less legitimacy, it's that the society is kind of stumbling around in the dark, not necessarily knowing, uh, whether it's legislating at the state, local, or federal level, not really knowing what the parameters are.
Stephen: Yeah. Yeah. I love the, the quote to the John Adams and the Massachusetts Constitution, right? Ours is a government of laws and not men. Um, what's the difference between laws and men words? Um, right. The, the difference between laws and men is, are the decisions being guided by written down, expressed?
Rules or the decisions. You know, Caesar pointing his thumb up or down, um, and right, the former is a rule of law, and the latter is the rule of man. Um, and the problem when you have a Supreme Court with this much power, including the power to basically put its thumb up or down without providing rationale, is not that any one ruling is suspect, David.
Like that's too much, right? It's [00:42:00] that we lose faith in the institution, that it's acting in a way that is judicial and not just nakedly political. And if the court is gonna be operating the way that's nakedly political. It is failing to live up to its end of the bargain. The Constitution creates an independent judiciary that's not subject to direct election, but not an unaccountable judiciary.
It's walking that tightrope that we did imperfectly, but we did for 200 years. And that I think the last 35 years we've fallen off of. And I think the shadow docket is one very accessible. Uh, uh, example of that, I think the current ethics swirl is another example of that. But David, there'll be other examples tomorrow.
And you know, the, the reason why I wrote the book was so that we would start talking about the court this way as opposed to, here's the 47th reason why Dobbs is wrong. You know, that's not an unimportant conversation, but it just, it misses so much of what's [00:43:00] truly, fundamentally flawed with the courts and institution today.
Sirota: Steve Latt is a professor of law at the University of Texas School of Law. He's the author of the terrific, important and fascinating new book, the Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic. You can also find him. On Twitter at Steve underscore Vladeck.
That's V L A D E C K. Steve Vladeck, thank you so much for taking time today. Thank you so much for writing this book. It's hugely important.
Stephen: Thanks, David. Great to be with you.
Frank: That's it for today's show. As a reminder, our paid subscribers who get lever time premium get access to our weekly bonus episodes. To listen to Lever Time Premium, head over to lever news.com to become a supporting subscriber. When you do, you will also get access to all of the lever's, premium content, including our weekly newsletters and live events.
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The Lever Time Podcast is a production of The Lever and the Lever Podcast Network. It's usually hosted by David Serota. producer is me, Frank Capello, with help from the Lever's lead producer Jared Jang Mayer.