|The Supreme Court has released a sketch from Brett Kavanaugh’s first day as a justice in 2018. Illustration via the Daily Show.|
GUEST BLOG / By Zachary B. Wolf, CNN What Matters Columnist--The Supreme Court holds more power than it used to and, thanks to its "shadow docket," can make consequential decisions that affect every American without so much as a written decision.
That's my takeaway from a fascinating and educational new book by Stephen Vladeck, a law professor at the University of Texas who is also a CNN contributor.
I talked to Vladeck about "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic," which publishes on May 16. Excerpts of our conversation, conducted by phone, are below.
WOLF: Can you explain to people what you mean by "shadow docket"?
VLADECK: The term is not mine. It was coined by University of Chicago law professor Will Baude in 2015. Will Baude meant it as an umbrella term. Not as a pejorative, but just as a description of the fact that the vast majority of rulings that the Supreme Court hands down that we don't pay attention to.
They're not the fancy decisions on the merits docket. They're not the cases where the court hears oral arguments and writes these lengthy rulings with concurrences and dissents.
The typical shadow docket ruling is an unsigned, unexplained order. And most of them are banal. But not all of them.
Will's insight, which I have rather shamelessly appropriated, is that there's a lot of really important stuff that happens through unsigned, unexplained orders. Just because they're unsigned and unexplained doesn't mean that we ought not to care about them, talk about them, study them and try to divine broader patterns from them.
The shadow docket helped Republicans in the midterm election
WOLF: You write about how the court, without explaining itself, either invalidated or influenced congressional maps in the last election in three states: Georgia, Alabama and Louisiana. Right now, Republicans have a four-seat majority in the House. Do you feel like those decisions determined the outcome of who was going to control the House?
What I think is really hard to say is what other effects might have followed. The New York Times has suggested that those decisions affected control of as many as seven to 10 House seats. That, I think, is a little more circumstantial. There's no question that the decisions in the Alabama and Louisiana cases helped to give the Republicans the majority they currently have in the House. Whether they actually directly affected control, I think is a close call.
Does the problematic behavior continue?
WOLF: Justice Samuel Alito is unapologetic about use of the shadow docket. Chief Justice John Roberts and other conservatives dislike it. How have things changed in recent months? Has it been used more or less since you stopped writing this book?
VLADECK: With regard to what I think is the problematic behavior on the shadow docket, I think we have seen less of that in the current term. And actually, I think we can see patterns of that go all the way down to October 2021, when Justice (Amy Coney) Barrett wrote this very, very cryptic concurrence in a case about the Covid vaccine mandate for Maine health care workers.
It was delphic in what it said, but signaled a bit of a break between Barrett and (Brett) Kavanaugh, who joined that opinion, and Justices (Clarence) Thomas, Alito and (Neil) Gorsuch in how often they were going to be willing to vote to intervene on the shadow docket and what kinds of cases they were willing to intervene in. Last week, the stay in the Oklahoma death penalty case, Richard Glossip, there were no dissents from that intervention.
Even the mifepristone ruling in April, there are only two public dissents. One of the really interesting stories here is the court really does seem to have moderated at least some of its behavior. Part of that, I think, is because to at least some degree, the median justices have become convinced that some of the court's prior behavior is problematic.
How the extraordinary became ordinary
WOLF: Do you have thoughts on motivations behind the rise of the shadow docket, which you pegged to the seating of Justice Barrett and this new conservative supermajority? Do you think that there was some concerted effort by the more conservative justices to exploit this?
VLADECK: I think the short answer is no. But I know that there are going to be folks who disagree. The book tries to unpack some of this chronologically, because I think the story makes a lot of sense when told in sequence. Starting in 2017, the court was confronted with an unprecedented flurry of emergency applications from the Trump administration.
It reacted to those applications iteratively, one at a time, without actually stepping back and looking at the whole waterfront, so the court actually kept digging itself in deeper and deeper. Had the justices actually taken a step back and asked whether this was a practice they wanted to condone, they might not have said yes. And I think with each new intervention, with each successive case, what had previously been extraordinary became ordinary.
Without there necessarily having been any deliberateness or malice, the conservative majority just routinized the types of interventions that had until 2017 been completely unroutine. It's only when we get to the Covid cases in 2020 and 2021 that now it starts to look like some of this is willful, because it's only in those cases where we see the court deciding legal questions on the shadow docket through emergency applications that were in front of the justices already on the merits docket.
There was nothing stopping the court from using merits cases to reach these questions about religious liberty, and the court did it through the shadow docket anyway. I really think it started as just an unstructured off-the-cuff reaction to unusually aggressive behavior by the Trump administration and then just sort of morphed into something else as time went on.
A patchwork of rights in the US
WOLF: You point to the Obergefell decision (legalizing same-sex marriage nationwide) to argue that the court had already spoken on same-sex marriage through years of inaction. There was a patchwork of marriage laws the court had tolerated for a number of years. Reading that made me think we're returning to that with abortion rights. And certainly with guns. The patchwork nature of rights in this country is growing not shrinking, despite the gay marriage decision.
VLADECK: I think it's grown in some respects and is shrinking and others. The more that the Supreme Court constitutionalizes things, the less of a patchwork we have. If you look at the Second Amendment context, I think it's actually less of a patchwork, because more and more variances in how localities regulate guns are being struck down by the courts for violating the federal Constitution. Versus contests where the court is stepping away from constitutional enforcement, like abortion. It's more contextual than sort of categorical. The Supreme Court evolved to grab power from Congress. And Congress gave it away
VLADECK: When we look at the court today, we see a court that controls virtually all of its docket, a court that decides not just which cases it's going to hear, but which issues it's going to decide within the cases it chooses to hear. For most of us, we've never known anything different. And so we just assume that that's how the court is supposed to operate.
The reality is totally different.
Until 1891, and really in practice until 1925, virtually all of the court's docket was mandatory -- the court had to decide any case over which it had jurisdiction. That made it a lot harder for the justices to have an agenda. It made it a lot harder for the justices to target particular disputes and look around for cases. The rise of certiorari, of docket discretion, is actually a thoroughly untold but undeniable part of the story of why today's Supreme Court is so powerful, despite the founders' views that this would be the least dangerous branch.
The court today actually has a ton of power. Some of that story is about a power grab. But a fair amount of the story is about acquiescence and abdication by Congress, which gave the court the certiorari power in the first instance; which never reined it in, even as the court has seemed to used it to claim more and more power; and which in 1988 took all the brakes off of certiorari and said, yep, just about all the court's docket is going to be discretionary -- and which has done absolutely nothing since then to exercise any modicum of control over the court's docket.
That's why the story that the book tries to tell is not just a story about the court. It is a story about the separation of powers and how the shadow docket is in some respects just a symptom of the broader disease of separation of powers dysfunction that we're seeing right now.
How to fix the court? Do something
WOLF: You come back to that 1988 law repeatedly in the book. I wonder what you think Congress should do now to change the court. There are proposals to change the number of justices, to change the terms of justices. What would be your prescription?
VLADECK: My prescription is sort of even sillier, which is I would just start by doing something. To me, the problem is that Congress has gotten completely out of the business of exercising any leverage over the courts, so much so that when Chief Justice Roberts was invited to testify before the Senate Judiciary Committee, he responds and says that would raise the separation of powers concern. No it wouldn't! Justices testify all the time.
Or at least they did historically, and no one ever thought that was unconstitutional. There are specific things Congress can do, but the real thing Congress needs to do is just more than nothing. Exercise more control over the court's docket. Use the budget, if necessary, as a cudgel. If nationwide injunctions are a problem that's responsible for why the court is behaving in this way, make it easier for parties to appeal nationwide injunctions directly to the court without having to go through the emergency application process.
There are so many things Congress could do. The problem is that we're stuck in this post-1988 mindset that it is not Congress' job. When we look at the court today, we look at the ethics issues, the docket issues, the legitimacy debates -- a lot of what's going on here is a court that's just not remotely checked and not worrying about being checked. And this is why I'm a bit more circumspect about adding seats to the court or term limits.
I don't think changing the composition of the court changes the basic problem, which is the power dynamic, the Madisonian idea in Federalist 51, that ambition must be made to counteract ambition. That doesn't change just because you have different bodies in those seats. The way that changes is Congress reasserts its clear constitutional prerogatives over the court. And that's part of the story the book tries to tell.
Justices need to guard their legitimacy
WOLF: You also talked quite a bit about this idea that the court gets most of its power from the legitimacy it has in the public. What should it do to restore its legitimacy?
VLADECK: "Restore" is a little strong. I have not given up on the court. But I think there's a lot that the justices can do to at least give a sense that they actually care about public perception, and that they should care about public perception.
First, I think it would be nice if the justices would stop attacking critics as seeking to delegitimize the court. If you think the criticisms are unfair, then respond on the substance as opposed to attacking the people who are criticizing.
When it comes to the shadow docket specifically, I think the justices can commit internally to norms about writings providing some rationale whenever the court's going to grant emergency relief and actually upset the status quo. I think the court can commit to taking pains to make sure in each case that it's explaining how the relevant criteria for emergency relief are met, that it's explaining why it disagrees with lower courts, who in many cases are writing lengthy opinions that are getting quashed in a sentence. More generally, the justices could emulate better behavior when it comes to emergency applications and what the court's role is in responding to them.