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We're waiting this spring to see what the Supreme Court may decide on some major cases having to do with affirmative action, redistricting and student loan forgiveness - important cases that grab our attention. But what about the ones that don't? Stephen Vladeck has a new book out called "The Shadow Docket: How The Supreme Court Uses Stealth Rulings To Amass Power And Undermine The Republic." The law professor from the University of Texas spoke with NPR legal affairs correspondent Nina Totenberg about how the Supreme Court's use of the shadow docket has changed.
NINA TOTENBERG, BYLINE: Professor Vladeck's book focuses on a part of the court's work that until six or seven years ago was mainly viewed as pretty boring. That, however, is no longer true. And today the emergency docket has come to be known as the shadow docket, a term coined in 2015 by University of Chicago law professor William Baude. Justice Samuel Alito hates the term and gave an hourlong speech in 2021 at Notre Dame, suggesting that journalists and politicians have seized on it to wrongly portray the court as sneaky, sinister and dangerous. Nonetheless, the term has stuck. In his book, Professor Vladeck argues that the court has only itself to blame.
STEPHEN VLADECK: What impelled me to write the book is that over the last six years, we've seen the shadow docket become a lot less boring because the Supreme Court, and especially the conservative majority, has been using unsigned and unexplained orders to a degree and in ways in which really have no precedent in the court's history.
TOTENBERG: What precisely is the shadow docket or emergency docket? It's the way many cases today - sometimes hugely consequential cases - are decided, without full briefing or oral argument and without any written opinion. These cases are brought to the court by a state or a company or a person who's lost in the lower courts, often at an early stage. And that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months. In short, the losing side is seeking to short-circuit its loss with a simple Supreme Court order that has little, if any, explanation.
Up until relatively recently, these shadow docket actions were quite rare. In fact, such end runs around the usual appellate process were considered, well, sort of bad form. The statistics tell the story. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant in the Supreme Court, only asked the justices for emergency relief eight times, or on average, once every two years. It got what it wanted in only four of the eight cases. And in all but one of them, the court spoke with one voice and no dissent. But in the Trump administration and with a newly energized conservative majority on the court, the picture changed dramatically.
VLADECK: In just four years, the Justice Department asked the court for emergency relief 41 times, and the court actually grants all or part of those requests in 28 of the cases.
TOTENBERG: In short, not only did the Trump administration aggressively seek to use the emergency docket, often leapfrogging over appeals courts entirely, but it succeeded with the tactic. Vladeck cites, for example, the challenge to President Trump's controversial diversion of military construction funds to build his border wall. A federal district court judge, after hearing the case, ruled that the diversion was unconstitutional and barred the administration from moving the money. Within weeks, the Trump administration went to the Supreme Court with an emergency appeal to block the lower court order, and the high court restored the diversion by a 5-4 vote with no written opinion for either the majority or dissent. As Professor Vladeck explains, these emergency rulings are supposed to be temporary to allow the case to play out through the appeals process in the lower courts and then possibly to return for full consideration by the Supreme Court later.
VLADECK: The dirty little secret is that the later never comes, that by the time the border wall case, by the time all kinds of other challenges to Trump policies make their way back to the Supreme Court at the far end of the normal litigation process, President Biden's in office, and those policies have been discontinued, and the cases are thrown out, so that you saw this pattern over and over again where President Trump was able to carry out policies that lower courts had held to be unlawful because the Supreme Court threw unsigned, unexplained orders, says, go ahead, President Trump; we'll deal with this later.
TOTENBERG: Vladeck's point is not that the Supreme Court was necessarily wrong, but that its unexplained shadow docket rulings today are both inscrutable and inconsistent. The patterns that emerge, he maintains, put the court in an exceptionally unflattering light.
VLADECK: The more you look at the overall body of work, the more it looks like the best explanation for when the court is intervening and when it's not is partisan politics and not neutral, substantive legal principles.
TOTENBERG: Vladeck points to a speech Justice Amy Coney Barrett gave in 2021 in which she assured the audience that the current court is, quote, "not composed of partisan hacks" and urged people to read the opinions. But, Vladeck notes...
VLADECK: What's remarkable about the shadow docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read.
TOTENBERG: Vladeck argues that historically, the way the Supreme Court has conceived of its own legitimacy and its own moral authority is its ability to provide principled rationales for its decision making.
VLADECK: We may not agree with the specific principles the justices are articulating in opinions like Dobbs, the abortion case, or Bruen, the Second Amendment case. But at least we have some sense that they are principles. The shadow docket has none of that.
TOTENBERG: Vladeck agrees that there are times when the court quite legitimately must use the emergency docket to deal with emergency situations, the classic one being a last-minute appeal to stop an execution or even the series of cases involving the Trump travel ban. Congress, he notes, is not without power. For the first 200 years of the Supreme Court's existence, Congress played an active role in the shape and size of the court's docket, including how the court would handle emergency cases.
VLADECK: I think the story here is one where Congress progressively got out of the business of checking the court, and the court progressively got out of the business of wanting to be checked.
TOTENBERG: The book is "The Shadow Docket."
Nina Totenberg, NPR News, Washington.
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