The Supreme Court has long had incredible authority to make decisions that affect millions of Americans. But in recent years, it has increasingly used its power to make stealth emergency decisions without public hearings or explanations. The cases that we often hear about on the high court’s so-called merits docket only represent about one percent of what the court decides. Since the mid-2010s, 99 percent of SCOTUS rulings, including ones increasingly related to consequential issues like abortion, immigration and COVID restrictions, have taken place on what some legal scholars have taken to calling “the shadow docket.” What does this obscure procedure mean for each of us? Steve Vladeck is the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law. He’s also author of a new book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” He joins WITHpod to discuss how we got to this moment, what the shadow docket means for the rule of law and strategies for ameliorating inconsistencies in the court’s process.
Note: This is a rough transcript — please excuse any typos.
Steve Vladeck: To me, the way we fix this problem is we actually build a consensus, a hopefully bipartisan consensus, that the court as an institution is healthier when it’s part of a meaningful interbranch dynamic and dialogue and not when it is aloof to it. And that an independent court doesn’t mean an unaccountable court or else you’re just going to see more and more examples of the justices doing whatever the heck they want without regard to procedural norms, to principles of transparency, to even sort of broader concern about their eroding legitimacy.
Chris Hayes: Hello, and welcome to “Why Is This Happening?” with me, your host, Chris Hayes.
Well, if you follow the news closely or even not that closely or just sort of osmotically get it beamed across your ear holes as you’re making breakfast for your kids during NPR, something that you hear a lot is about a judge somewhere, or a panel of judges, or sometimes the Supreme Court issuing a ruling that does something immediately or stop something from happening immediately or sometimes implement some whole new policy.
This is particularly true in immigration recently. Honestly, I’ve been following this very closely, and I’m utterly confused by it. Like, it’ll be like this federal judge says that Title 42 has to go into effect, has to stay in effect. And then it’ll be like, another federal judge says Title 42 can’t go into effect. And it’s like, wait a second. Aren’t those contradictory?
Also, these individual judges, why are they making immigration policy for the entire country? Like, how did this happen? And who’s going to resolve this? And then you’ll hear the Supreme Court declined to block an appellate court’s stay of a district court’s ruling of a temporary restraining order on an injunction on mifepristone. And I’m like, whoa, wait, I feel like I’m back in logic class in undergraduate. I’m like, not, not, not, not, not P. OK, so the nots line up, so then, OK, we’re back to P.
And if you feel like there’s a lot of this, and if you feel like the amount of sort of emergency judicial rulings of matters of great import, mifepristone being an incredible one, right? That you have a federal judge in Texas who says, I’m giving you a week and after that, we’re taking mifepristone off the shelves nationwide.
You’re like whoa, what? OK. Wait. No. Why? And then the appellate court comes in, before then they say, sort of, we’re not going to take all of it, but we’re going to get rid of the telemedicine prescription of it. And that starts in a few days.
The Supreme Court says, actually, we’re going to go back to the status quo ex ante. And at each part of those, you’re like, wait, I don’t even know where I am on the board game. Like, who is saying what to whom about what? Did this ever stuff ever get argued? Like, what is going on?
So if you follow the news, you’re, I think, bedeviled often by this feeling of like which judge is saying what to whom in what time frame? And how does that go to the next person? And we just so happen today to have like the foremost expert on exactly this.
He’s a law professor named Steve Vladeck. He’s the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. He’s also got a new book, which is about what has been his academic focus for a good long while now. It’s called “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
And it’s about what happens when these cases, the mifepristone case being a perfect example, some of the Title 42 stuff, what happens when these cases go up this parallel form of appeals, this sort of parallel system of jurisprudence, and ends up in what has been dubbed, and I think maybe Steve Vladeck called it that. We’re going to find out in a second. “The Shadow Docket” and why understanding this burgeoning parallel track of law is so important to understanding so many of the stories we encounter today.
It’s my great pleasure to have Professor Vladeck on the program. Welcome.
Steve Vladeck: Thanks, Chris. Great to be with you.
Chris Hayes: So here’s what we’re going to do here. I’ve scooped my wife’s podcast on you, so you’re going to be on “Strict Scrutiny,” which is my wife’s podcast. And they’re going to do like the 301 version of your book that you would do with 3Ls. We’re going to do, like, first semester of Civ Pro here.
Steve Vladeck: Bring it.
Chris Hayes: Because I honestly think most people, even very, very educated, erudite, well-read people don’t actually understand the basic mechanics of how a case gets through the federal courts. So I want to just start with the normal process because I think to the extent that we could say what the normal process is and sort of should be in a normative sense, although we can argue about whether that’s the case. I don’t have strong feelings.
Then we can spin out what has developed in this, what you call, shadow docket and why that’s so different. And let’s just start with, like, I don’t know, you choose an example of the kind of civil lawsuit someone might file in a district court, which is the lowest level, and how, if that was interesting, maybe somewhat controversial, unsettled statutory constitutional grounds, how that might work its way up the ladder of federal courts.
Steve Vladeck: Yes. I mean, the Supreme Court has a case this term, actually, it’s a big deal case called 303 Creative about whether a website designer in Colorado can refuse to create websites for same-sex weddings.
Chris, that case has been going for seven years. Right. That case took seven years from when it was originally filed.
Chris Hayes: Wow.
Steve Vladeck: It went all the way through the lower courts, first through the trial court to a final judgment, then an appeal to an intermediate appeals court to a judgment. And then and only then to the Supreme Court where the process is actually itself usually a laborious one, where first you ask the justices to take up your case.
And if, and only if, they say yes, because they have discretion over most of their docket, then maybe six, eight, 10 months later, they hold oral argument and then maybe six months after that, they hand out an opinion. So, right, the normal case takes years, and those years matter because one of the things that happens during those years is the factual record is developed, all of the legal arguments are sharpened and crystallized so that the Supreme Court really gets to get the cleanest, neatest, right, vehicle by the time it actually gets to the justices.
Chris Hayes: So going to go even more basic, because I think even like trial court, appellate court, Supreme Court is a little unfamiliar to people, so obviously not the lawyers who are listening to this podcast. So when you say you file this lawsuit and you get it assigned to a federal district judge, that’s the trial court. The sort of quarter first impression in federal cases, you’re going to get a judge, and you’re going to have a civil trial, or arguments over whether this violated your rights, you know, by being forced.
I mean, again, this is a little bit of a weird case, because the person at issue doesn’t even have an active graphic design business. It’s sort of a theoretical hypothetical, that in the future they may be compelled to design gay websites, which they don’t like.
But putting that aside, there’s an actual judge there, right? They get assigned your case. And what does that first judge do?
Steve Vladeck: So the job of the trial judge, and this is true in both state and federal courts, is to decide what the lawsuit even is, is to figure out whether the plaintiffs have any kind of a claim.
And, Chris, as you know, that involves both legal and factual questions. So I’m suing someone out (ph) over a car crash, right? Well, there might be a factual question. Was the light actually red when the car went through the light?
Chris Hayes: Right.
Steve Vladeck: There might be a legal question. What duty of care did I owe to the other drivers? That’s all for the trial court in the first instance. And the idea is that all of trial litigation is structured to resolve these questions in the most efficient order.
So the first thing we do is we ask if we assume everything the plaintiff says is true, does the law support their claim? Because if they can’t even win, if the facts are as they say they are —
Chris Hayes: Right.
Steve Vladeck: — then the case goes away.
Chris Hayes: Then there’s nothing there.
Steve Vladeck: Correct.
Chris Hayes: Right.
Steve Vladeck: And if the plaintiff does win, if we assume all the facts are the way they are, then we have to figure out if the facts are the way they are, right? And that usually means what we call discovery, right, where the parties take evidence from each other, depositions.
And then and only then if there’s still what we call a material question of fact, well, we’ll go to trial. But this is all a painstaking process that takes months, if not years. And that sharpens everything so that when you go up to the appeals court, when whoever loses says, hey, something happened below that shouldn’t have happened, right? There’s now a complete, well-developed record for the appellate judges to look at.
Chris Hayes: Again, for the people that went through law school or lawyers, this is slightly excruciating. Maybe you can fast forward. But for those who didn’t, I do think there’s just this concept, which it took me a long time as a non-lawyer to appreciate, of just like the facts and the laws are these separate entities and particularly developing a factual record.
Like what the trial court is doing is like, what were the facts of the matter at issue with respect? So for instance, in 303 Creative, right, if the person actually lived in Maine this whole time, right? Like they wouldn’t be able to file there and then that’s irrelevant.
So if it turned out that like, actually, you’ve been living in Maine. You don’t even live in —
Steve Vladeck: Right.
Chris Hayes: — I think it was Colorado that was filed.
Steve Vladeck: Yeah.
Chris Hayes: I forget where.
Steve Vladeck: Or she doesn’t actually own a website design company.
Chris Hayes: Exactly, right. Or in the case of the car crash, like, was the light red or not? It’s basically like what the trial court is doing is like through this discovery, through deposition, through even the trial, right, if there’s a trial, it’s establishing, basically, like the set of facts that is the state of the world.
Steve Vladeck: Right.
Chris Hayes: The facts of the matter.
Steve Vladeck: Right.
Chris Hayes: These facts pertain here. The light was red. They did run through the red light. The person does reside in this state. And nailing all that stuff down as a journalist, I know, is hard work. And that’s a big part of what that first court is doing.
Steve Vladeck: All of that is exactly right. And part of why that matters is because the Supreme Court likes to say over and over again, that, you know, we are a court of review, not first view. This is a mantra they use all the time.
And what’s really animated in that is the idea that they should not be resolving hypothetical questions, right? That we only want the Supreme Court, even all appellate courts, to actually be resolving questions that are relevant to the dispute. You need those issues. You need the factual record developed. You need the legal issues crystallized before you can be sure what does and doesn’t matter.
Chris Hayes: So if you lose at that first court, right, and they say, no, your rights aren’t violated by this law that requires you to design websites for everyone or, yes, you are liable for the damages because you ran a red light, you can then appeal to the next court up, which is the appeals court. Sometimes we call those circuit courts. They’re interchangeable appellate court, circuit courts.
There are 13 of those and they oversee regions, you know, groups of states broadly, geographically contiguous. And what happens there?
Steve Vladeck: So the appellate court’s job is basically to decide whether the legal analysis was correct. Usually, the appellate court will review the legal analysis of the trial court, what we call de novo, basically for themselves, right, without any deference to the trial court’s legal analysis.
And maybe, Chris, if there are serious questions about the facts, the appellate court can decide that a district court clearly erred in certain factual findings. But that review is highly deferential. The idea is that the trial judge is much closer to the facts. And the principal function of the appellate court is to just make sure that everyone got the legal questions correct.
Chris Hayes: Right. Again, we’re just going to stay with this metaphor and I’m sorry if I’m belaboring this, but I actually think this is so useful.
So if the trial court says like, the light was red. We’ve got witnesses and we’ve got a video recording. The light was red when you ran it. You can appeal and say the light was red, but the liability standard was misinterpreted by the court.
Actually, the liability standard isn’t, you know, did I run a red light? It’s like, did I intend to harm someone? I’m just making this up, right?
Steve Vladeck: Yeah.
Chris Hayes: Right. But you can’t go to the appellate court and be like the light was green, basically. Like you can’t appeal on that. Like that has been decided presumably at that level of the first trial.
Steve Vladeck: Right. I mean, that’s right if I can take this one step further. I mean, the one thing you can say is that the evidence on which the district court relied in concluding that the light was red was all clearly wrong.
Chris Hayes: Right.
Steve Vladeck: But the videotape actually doesn’t say what the district court said it did. The witnesses didn’t say what the district court said they did.
Chris Hayes: Right.
Steve Vladeck: But yes, I mean, the norm in American civil and even criminal litigation is that appellate courts don’t disturb factual findings by trial courts.
Chris Hayes: So then the appellate court is going to look at the legal analysis used by the judge beneath them, and they are going to say either that legal analysis was correct and your appeal fails, or there was something not kosher here and the appeal succeeds. And the law that they use to apply is what? Like how do they decide that?
Steve Vladeck: Well, so I mean, it depends on the case, right? So there are a couple of sources for law, right? So there could be statutes. So if it’s Texas, for example, whether the Texas legislature has specifically written down rules to govern car crashes.
Chris Hayes: Right.
Steve Vladeck: And if the Texas legislature hasn’t written down the relevant rules, we have what’s called common law, which is basically where Texas state courts interpreting Texas law will fashion a series of principles where the decisions, the judicial decisions are the source of these principles and so we apply those principles.
Maybe in a rare case, Congress has spoken and there’s a federal statute on point —
Chris Hayes: Yeah.
Steve Vladeck: — right? Maybe there’s a federal constitutional question on point. Maybe the Supreme Court has interpreted a federal statute or the federal Constitution. So, you know, sort of the sources of law are basically what the appellate courts are looking to, to decide whether the trial court’s legal analysis was correct.
Chris Hayes: And this is where like precedent body. It’s like, yeah, we got a lot of car crashes. Like for most things that happen, right, like a lot of it has happened before. Some version has happened before. You go and look what has happened before and how statutes have been interpreted and how these things have played out and what controlling precedent by the Supreme Court that has gotten like a particularly interesting or novel version of this. And they’ve said, actually, in this case, this is how you read the law or this is what you do and you’re supposed to apply that.
Now, if you lose there, you’ve got one more shot, which is to go up the Supreme Court,
Steve Vladeck: Right. And in almost every case, right, the Supreme Court does not have to take your appeal. So in the federal system, when you lose in the trial court, you usually have what we call an appeal as of right. Meaning, you are entitled —
Chris Hayes: You get your day before the appeals —
Steve Vladeck: Correct. There’s no similar mechanism for 99 plus percent of appeals from the intermediate federal appeals court to the Supreme Court. Almost all of the Supreme Court’s —
Chris Hayes: Unless the states have a beef over like who’s taking whose, right?
Steve Vladeck: And certain campaign finance and redistricting cases. But the typical federal appeal is one that the Supreme Court has unfettered discretion, either to take or not take through what we call a writ of certiorari, basically in Latin, to sort of bring up the record from the lower court.
Chris Hayes: And 99 percent of the time they don’t take those cases. And when they do, they tend to take them because there’s some novel question presented or there’s what’s called a circuit split, which is two of the different appeals courts have had similar cases and come down on different sides.
So there’s ambiguity in national federal law about which of those circuits are correct. And if there’s a circuit split, the only people that could resolve it are at the Supreme Court, so that’s a big reason they’ll take a case.
Then this is the sort of normal process. To go back to 303 Creative, like the wheels of justice grind slow, but very fine, right? That took seven years to go through all of this, right, to get all the way up to the Supreme Court. And that’s, like, not atypical for a Supreme Court case, like, in those sorts of time ranges.
Steve Vladeck: That’s exactly right. I mean, I only have an anecdotal sense of this, but I think probably somewhere between three to seven years, at least until recently, was the median sort of time from beginning of lawsuit to final Supreme Court decision.
Chris Hayes: Now, we’re about to go to what (ph) this sort of alternate means now that we’ve established this. But one argument I think you can make about that is like maybe that’s too long.
I have to say in covering the Trump years particularly and particularly legal issues around Donald Trump, which have often taken a very long time to resolve, I was even sort of chuckling for myself because right around when the Alvin Bragg indictment came down for an alleged crime that happened in 2016, there was the Gwyneth Paltrow civil trial about a skiing injury that also happened in 2016, which took seven years to get to trial.
And I was sort of thinking to myself, like, that’s a really long time. And I’m watching these witnesses in the Gwyneth Paltrow trial and thinking, does anyone remember what they actually saw on the ski slope seven years later? So I guess what I’m asking you is defend this ponderous process whereby all this stuff takes so long.
Steve Vladeck: I’m not sure I want to. So two things are true. One is that process is good in the sense that process allows everyone an opportunity to be heard. Process allows for reasoned deliberation. Process allows judges to make the most sort of well-put-together, well-thought-out decisions they can.
I think, Chris, we’re all going to be better at making big decisions when we have some time to think about it, than when we’re doing it on the cuff or off the cuff as the case may be.
So I think the first thing to say is like, in general, I think process tends to produce or at least we assume that process tends to produce better decisions. And the second thing to say is, but, right, if there are sort of structural defects in how long some of this stuff is taking, I think there probably are.
You know, if only there was a policymaking body that had the ability to speed up some of these things, and it had the ability to sort of compress schedules and to provide for more judges so that judges could work faster and could schedule things more quickly.
I mean, I think one of the stories of the book is that the shadow docket is in some respect symptoms of broader diseases.
Chris Hayes: Right.
Steve Vladeck: And it’s a symptom, but it’s not a solution, as I know we’re going to talk about, because instead of sort of clamoring for a better way of getting these cases to the Supreme Court faster, but still with full-throated review, right?
Now we have the justices jumping in very, very early in the litigation before any of that stuff has happened. And basically sort of doing things that we usually think they only do at the far end of the process, in a context in which they haven’t had all of the benefits of having these cases go through all the rigmarole.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: So in the final combination of the normal process, right, when we’ve gone through these three levels: the trial court, the appellate court and Supreme Court. Let’s say it’s gone all the way up to (ph) Supreme Court. They then deliberate. They have conference. They then issue a written opinion. The written opinion will, if it’s unanimous, it will be unanimous, but if it’s not, there’s a majority opinion and then dissent.
Sometimes there are several dissents. Sometimes several justices come together for certain parts. It can get very complicated. But ultimately what ends up happening are written arguments and reasons about why individual justices or a majority of the justices or a collection of the justices think that party A or party B prevails on the major questions presented. That’s the resolution of the normal process.
Steve Vladeck: I mean, I think we should say like, the reason why we want the justices to write something is because at least in part, right, they’re not just deciding every single case that comes to them. They’re only deciding a handful of these cases.
Chris Hayes: Also, like, where are we if they don’t write anything? Like, what the hell do we know about —
Steve Vladeck: But this is the point, right, Chris? Which is that —
Chris Hayes: Yes. Right, yeah.
Steve Vladeck: — like we might not be bothered if lower court judges write less because their decisions aren’t affecting as many people. They’re not having as much of an impact.
Chris Hayes: Right.
Steve Vladeck: Right. The reason why we expect the justices to write is because everyone understands that these opinions are not just resolving the individual dispute between the two parties before the Supreme Court. These opinions are actually resolving questions of national importance with broad legal and policy ramifications.
Chris Hayes: So now we get to the shadow docket and the alternate means by getting something quickly. And there’s a few different ways this could happen and maybe I’ll just sort of let you talk me through.
I mean, one is there’s like emergency and non-emergency, right. But what is the shadow docket and how does it differ from the process that we’ve just described?
Steve Vladeck: So the shadow docket itself is an umbrella term that actually Will Baude of the University of Chicago coined in 2015 —
Chris Hayes: Oh, right. That’s right.
Steve Vladeck: — to talk about the Supreme Court. Will actually meant, Chris, all of the courts’ unsigned orders. So Will meant to include the unsigned orders that grant or deny certiorari, the discretionary appellate review.
But I think that the sort of contrast between what we’ve been discussing is the emergency side. And so let’s take a different case, right? Let’s take mifepristone case —
Chris Hayes: Yeah.
Steve Vladeck: — where at the very beginning of the litigation, like the first ruling from the trial judge is, I mean, Kacsmaryk called it a stay, but it’s basically a what we call preliminary injunction, which is a compulsive, coercive judicial order compelling or barring the defendant from taking the specified action.
So in this case, right, Kacsmaryk’s order was an order to the FDA that basically would have revoked the approval of mifepristone and would have had, of course, amazing, like remarkable catastrophic, downstream consequences.
Chris Hayes: Wait, let me stop you right there.
Steve Vladeck: Yeah.
Chris Hayes: Was there a full trial?
Steve Vladeck: No.
Chris Hayes: How did they get the factual record there? Because the factual record itself, when I read the decision, seems dodgy at best. So like what level of process was there even to get to that order?
Steve Vladeck: I mean, so the short version is, this is basically all based upon the declarations that the plaintiff submitted. So declarations submitted under penalty of perjury.
Chris Hayes: That’s wild.
Steve Vladeck: I mean, submitted under penalty of perjury, but that have not been cross-examined, that have not been subjected to discovery, et cetera.
Chris Hayes: Yes. It’s just people attesting to things.
Steve Vladeck: Correct. Which, of course, is kind of important than the mifepristone case because you have all these doctors attesting to injuries that are, I would argue —
Chris Hayes: Hypothetical.
Steve Vladeck: — hypothetical at best.
Chris Hayes: Yeah.
Steve Vladeck: Here’s where things get tricky, right? So Kacsmaryk issues a ruling that he stayed, right, he paused. He hit the pause, but (ph) he says, my ruling is not going to go into effect for seven days. But only seven days, which means that at the end of seven days, seven days after his ruling had nothing else happened, you would have had an interim, a very early in the case ruling that would have had this massive nationwide societal impact.
Chris Hayes: I just want to stop for a second as we go through this. Like compare the seven years to get from Gwyneth Paltrow knocking into someone or not knocking into someone on a ski slope to a civil trial over whether she did or did not, right? Seven years. That’s just the civil trial. We didn’t go through the appellate process or anything, right? Or the seven years from 303 Creative, the person filing a lawsuit to the Supreme Court.
Now we’ve got this thing. It’s been on the market for 23 years, OK? You’ve got two filings in front of a judge and a few months of him reviewing them and arguments in front of him, no trial, no cross-examination, no depositions and no discovery. And then he issues a ruling and says, after a few months, in seven days, all of the nation’s mifepristone is getting taken off the shelves.
Talk about the opposite, it’s like compare that level of process and the stakes to the Gwyneth Paltrow civil trial of like, whether she knocked the guy down on the ski slope is seven years until you get to trial. And this is whether you will be able to take a drug that’s been on the shelves for 23 years and it’s like a few arguments and a few filings.
Steve Vladeck: I guess the short thing to say is yes, but the critical point, Chris, is that the mifepristone case in that respect is not actually an outlier compared to what we’ve seen lately. I mean, look at the Biden student loan cases. Look at the Title 42 litigation, right? Look at U.S. v. Texas, a case the court has this term about the Biden administration’s immigration enforcement priorities.
One of the things that has helped to catalyze the sort of the visibility of the shadow docket, not the shadow docket itself, is that we are now seeing so often these very early in litigation rulings from trial judges with these massive potential, right, immediate practical impact.
Chris Hayes: Right. So it’s a trial judge issuing essentially a preliminary ruling that has enormous consequences for, in some cases, the whole nation. And then because of the enormous consequences and because they light a fuse on a timer, like seven days, and we’re going to order FDA to take mifepristone off the shelves, then you’ve got to get it up through the appellate system super-fast, right?
Steve Vladeck: And so this is where we get to the idea of emergency relief. So emergency relief is not meant to be the conclusive resolution of the appeal. The idea is that things are happening too quickly to actually give the full monty to do the full process.
Rather emergency relief is what’s supposed to be, this is one of the problems, but what’s supposed to be a temporary stopgap. We, the appellate court, are hitting the brakes. We’re pausing your ruling while we consider what to do with it, while we take the time to give it at least some modicum of normal appellate process and that’s what a stay is.
A stay pending appeal is basically the appellate court saying, slow down, trial court. Like, we need some time to figure out whether we’re going to let your ruling go into effect. And that’s what we the nerd lawyers call an emergency application.
Chris Hayes: Then the emergency application, right? Then that can get appealed to the Supreme Court.
Steve Vladeck: Right. And so let’s play out mifepristone again. So in the mifepristone case —
Chris Hayes: Yeah, let’s do it.
Steve Vladeck: — both the FDA and Danco Laboratories, one of mifepristone’s two domestic sponsors. First, they go to the Court of Appeals, the Fifth Circuit, and they ask the Fifth Circuit for a stay of Judge Kacsmaryk’s ruling. And the Fifth Circuit does this really bizarre sort of partial stay, but mostly non-stay of Kacsmaryk’s ruling, which means the big parts are still going to go into effect at midnight on Friday night.
So then they go to the Supreme Court. I mean, Chris, I’m being a little bit pedantic. They’re not technically appealing the Fifth Circuit ruling, at that point. Now, they’re asking the Supreme Court for the same relief.
They’re asking the Supreme Court for a stay of Kacsmaryk’s ruling pending appeal.
Chris Hayes: Right.
Steve Vladeck: And this is not the sum total of the shadow docket, but that rough fact pattern is what has become so de rigueur, is what has become such a common staple of the Supreme Court’s emergency docket of procedural orders of the whole melange.
Chris Hayes: And now here’s where this sort of real, this sort of transparency and secrecy question really comes into play when you talk about the shadow docket, right, and Will Baude’s coinage of it. Let’s imagine. This is not what happened, but were we to imagine that the Supreme Court simply refused to stay Kacsmaryk’s ruling, they could have just issued that —
Steve Vladeck: With no explanation.
Chris Hayes: — and said with nothing.
Steve Vladeck: Yeah.
Chris Hayes: Just no, sorry. We’re not taking it. Now, what that would mean is functionally American women and folks who get pregnant across the country would no longer have access to mifepristone from one day to the next with literally zero articulation justification from the highest court in the land.
Steve Vladeck: So, Chris, change mifepristone to abortion and you’ve just described S.B. 8.
Chris Hayes: Right.
Steve Vladeck: Right. And you’ve just described the Supreme Court’s refusal to intervene in September of 2021 to stop Texas’ six-week abortion ban from going into effect.
Chris Hayes: And their bounty system, right.
Steve Vladeck: That’s right. And the S.B. 8 ruling, I mean, to be fair to it, it had a paragraph of explanation, but it was not exactly a thorough or persuasive paragraph. I mean, Chris, this is the problem. And so this is what impelled me to write the book, which is that I think as often as this is happening, and with the stakes when it’s happening, the fact that we don’t take the time as we’re doing right now to actually lay all of this out to people who care, people who want to understand, but also people who won’t necessarily be able to tell what it is when the Supreme Court says, the application for a stay is granted.
The whole point of the book is to basically try to make this all accessible to all of us now that these rulings are affecting us so much more often than they ever did before.
Chris Hayes: Well, that brings us to the sort of third point. So we started with what’s the normal process. The normal process is long and drawn out, and it’s got these three layers. Then we’ve got the sort of expedited process. The process where there’s some kind of temporary restraining order or injunction or preliminary relief that’s granted by the lowest court judge, and then it gets appealed. And because it’s time sensitive, all of that process plays out in this very accelerated sort of emergency fashion, right?
Now, those two things have been true for a very long time. What you argue in the book, and I think very persuasively in document empirically is that something has happened to make this second process, the rocket-fast sort of preliminary expedited with massive national consequences, way more common and way more common on extremely fraught matters of essentially national policy. When did that start happening and why did it start happening?
Steve Vladeck: So the when is easy. The why is harder, right? So the when is the mid-2010s. I mean, if you just – any study of the Supreme Court’s handling of emergency applications will register an enormous surge right about the beginning of the Trump administration. And I think you can argue, Chris, that, sort of, the foundation was already there. The Obama Clean Power Plan dies through an unsigned, unexplained five-to-four ruling on the shadow docket, right.
But part of what happens is that it’s the Trump administration that has so many of its policies blocked by lower courts. And it’s the Trump administration that tries to actually rev up the emergency docket in a way that it had never been used before.
You can go back through history, you can find scattershot examples of these kinds of cases, but they were once a decade, maybe once every five years. Now you have the Trump administration starting with the second iteration of the travel ban, going to the court once every other week.
There’s a larger conversation about whether some of that’s also reflecting a shift in lower court behavior. But of course, if it’s a shift in lower court behavior, the Supreme Court has ways of dealing with that and has ways of sort of slapping down the lower courts.
And one of the most exasperating things that I found and that really sort of said to me, there’s a book here, is that all of the sort of principled ways the Supreme Court could have responded, if that was really the explanation, aren’t happening because the court won’t explain itself.
And so starting in 2017, we see two things happening at once. We see the court intervening in emergency applications much more often. And in context, Chris, they have much broader effects. So historically, this was principally about the death penalty.
You ask folks like Kate, who clerked on the court in the 1980s, 1990s, 2000s, they’ll say what they remember about emergency applications is the death penalty, right?
Chris Hayes: Yeah.
Steve Vladeck: The shift in the mid-2010s is to immigration policy and abortion policy and congressional districts. I mean, it’s sort of everything. And, Chris, while they’re preserving the norm of not explaining the orders and not providing rationales and doing it at all times, right? So it’s the qualitative shift in the mid-2010s that I think is really the culprit.
Chris Hayes: And we should note that like, actually Kate’s term, that there was actually a nationwide stay. There was a pending case before the Supreme Court about the constitutionality of the death penalty.
Steve Vladeck: Yeah.
Chris Hayes: She was actually spared that very, very grisly and macabre work, which clerks do, which is dealing with these emergency appeals. Obviously, in the case of the death penalty cases, there you’ve got an example where the time being of the essence is just clear on its face, the person is scheduled to be executed at this time and this date, whatever is going to be resolved legally has to happen before then. With the other stuff, it’s not as clear, like, what is going on.
Now, in some cases you could say, I think, in the Trump administration, the travel ban being an example where the executive has acted in these ways that essentially created emergencies, right?
They’ve created a set of facts on the ground that have to be dealt with at the moment. In the case of the first travel ban, it’s people were being turned back at airports.
Steve Vladeck: Right, people with green cards.
Chris Hayes: Yeah, people with green cards. I mean, there’s all sorts of craziness happening. In the moment, you have to go and seek emergency relief. But in some of the other cases, it’s just not clear why that fuse exists.
Steve Vladeck: So this is probably getting a little bit too far into the weeds and you can pull me back in a second. But I think one of the legal shifts that happens that explains the numbers is that it’s right about this time that the court starts accepting an argument that it never had before, which is that any time a government is enjoined, is blocked from carrying out one of its policies, it suffers not just harm, Chris, but irreparable harm.
That is to say, harm that requires immediate relief as opposed to just eventual relief. That had never been sort of a consensus view on the Supreme Court until the middle of the last decade. So when Trump goes into court, he says, listen, I may win on the merits in this case, I may not win on the merits in this case, but I’m being stopped from carrying out my immigration policy. You should let me carry it out until you decide if I’m going to win or not, right?
Chris Hayes: And this notion of irreparable harm is the standard for emergency relief. It’s not just that you have some harm. It’s that the harm that will accrue in the time the emergency relief is not granted can never be sort of clawed back.
Steve Vladeck: Right.
Chris Hayes: It’s irreparable.
Steve Vladeck: What is the justification for having the appellate court intervene now, as opposed to just waiting for you to come up through the normal channels of appeal?
Chris Hayes: Right.
Steve Vladeck: There has to be some reason why waiting for the normal appeal —
Chris Hayes: Over and above, yeah.
Steve Vladeck: — that’s right. Exactly right. You got it.
Chris Hayes: So this irreparable harm argument, I mean, there’s a few things going on. So let’s start with this, one is the notion of nationwide injunctions. This is interesting, because I think this cuts across in sort of interesting ideological direction. We’ll go back to mifepristone, right?
In the case of Kacsmaryk, you’ve got a district judge. His jurisdiction is small compared to the United States as a whole. He’s the one judge in Amarillo, Texas, because as I’ve covered on the show and I think spoken on the podcast, because he’s a, obviously, right-wing true believer, if you are a right-wing, true believer and want to find a favorable judge, you can get in your car and drive to Amarillo, Texas.
And if you’ve got plaintiffs, plausibly, who live there, which is what they essentially created from the mifepristone case, you know what you’re going to get. There’s no question. It’s not going to be a lottery. It’s like, I’m getting Kacsmaryk.
Then that guy in Amarillo, population of I think about 200,000 people, can issue an injunction for the entire country saying no one gets to have access to mifepristone. Now, I view this because of its ideological valence and because my substantive commitments on reproductive rights as outrageous.
However, during Trump, there were district judges in California or in Brooklyn. I was outside the Brooklyn courthouse in the Eastern District of New York the night that they nationally enjoined the travel ban. In which, very similar to what Kacsmaryk was doing, a single judge in a single jurisdiction in downtown Brooklyn with the ambit of humans that he has in his circle says, or she, this is blocked for the whole nation.
So one big question is, is part of the issue the (ph) system and growth of nationwide injunctions coming from these individual federal district judges?
Steve Vladeck: So I think the short answer, Chris, is if the question is this part of the issue that, yes. But I think it’s a bit over-determined to suggest, as some, not you, have, that this is all about nationwide injunctions for two reasons.
First, nationwide injunctions are themselves relatively new, but before them, we had nationwide class actions. And it was possible to obtain a very similar type of order if you had a whole bunch of plaintiffs, what’s called a plaintiff’s class of, let’s say, all prospective asylum applicants, certified to challenge an immigration policy.
But, Chris, here’s the second problem and this is part of why I think having a book-length treatment helps because I’m able to sort of take the holistic view.
Chris Hayes: Yeah.
Steve Vladeck: If nationwide injunctions were the problem, as both Justice Gorsuch and Justice Thomas will suggest in separate opinions in some of the Trump cases, what explains why since President Biden came to office, the Supreme Court has left in place a whole bunch of nationwide injunctions against Biden policies?
And so this is where one of the real charges that I level in the book is not that emergency interventions are inherently problematic, but that if you’re not going to explain yourself, inconsistency is a real problem. Because without rationales, if it just so happens that Trump wins and Biden loses, that Texas wins and California and New York lose, then you have a real appearance problem, where it looks like the best predictor of how the justices are going to rule in this context is not the legal theory of the case, but rather it’s partisan valence.
In the normal case on the merits docket, the best response to that is, but look, we wrote a 75-page opinion with a series of rationales. When there’s no such opinion, I don’t know how you can respond.
Chris Hayes: Right. So this gets into why this is bad, which I want to sort of stay on. But I also want to stay in this why question.
Steve Vladeck: Yeah.
Chris Hayes: So you’re saying it’s not the rise of nationwide injunctions. Something changed around the Trump administration, the court and particularly Supreme Court being amenable to the argument, the government was making that to be stayed or enjoined causes irreparable harm, and they are entitled to essentially expedited review and relief.
What’s the other parts of the why in your theory?
Steve Vladeck: So I think the two other parts of the why are the sort of hit us over the head obvious one, which is shifts in the court’s composition. It’s enormously significant when Brett Kavanaugh replaces Anthony Kennedy in the summer of 2018. It’s even more significant, actually especially on the shadow docket when Amy Coney Barrett replaces Ruth Bader Ginsburg in 2020.
We see a whole bunch of shadow docket rulings where the court, Chris, is actually 5-4 with Chief Justice Roberts joining the three Democratic appointees in dissent. So another part of the why is shifts in composition.
But I think another part of the why is that the sort of emerging, ascending, conservative majority feels for whatever reason less beholden to the kinds of both normative and formal procedural constraints that used to cabin, that used to limit how often and in what context the court would feel comfortable intervening and the irreparable harm story is part of that. Like we’re going to sort of look very differently.
Chris Hayes: Right. I mean, well, they’re just in a rush. And also, if you know who’s going to win, why go through all the rigmarole? I mean, I’m being, now, super cynical here, but if you’ll allow me to indulge my most sort of extremist legal realism, who are we kidding about who’s going to win S.B. 8? I can count to five.
S.B. 8 is Texas’, you know, abortion ban. This is before Dobbs. So Dobbs is in the work. At that point, it’s calendared or it’s been argued. I forget where we are in Dobbs when S.B. 8 is passed. But we know where we’re going to end up. Why go through the rigmarole? Why go through all this process fetishism that you law professors love when our team has more people than your team? Ergo, we win. Ergo, Texas could do whatever the hell it wants.
And that’s, to me, what it seems like let’s just cut through all the nonsense here and talk about who’s going to win because we know who’s going to win because we run the court.
Steve Vladeck: So that is an understandable impulse. Will Baude and I fought about this, I think, on his podcast, so not so long ago. There are two problems with it. The first is legal and the second is factual. This is me being a stupid lawyer about everything.
Chris Hayes: No, it’s good.
Steve Vladeck: So the legal problem is that then the Supreme Court ought to admit, right, that it is rewriting all of the procedural rules for emergency applications. That all it’s doing is front-loading merits determinations, which means it has to, Chris, let’s be sort of technical, it has to reinterpret three different statutes, which it has previously interpreted to sort of set rules for when it can issue this kind of relief.
If it’s going to reinterpret those statutes, presumably it needs a good reason for reinterpreting those statutes. Hasn’t provided it. So that’s the legal problem.
There’s an even bigger factual problem. It’s not true. There are examples across the last five, six years of the court going one way at the emergency application stage and going the other way on the merits. So just let’s go to the last term.
Chris Hayes: Right.
Steve Vladeck: Right. So the remain in Mexico case, this was about the Biden administration’s attempt to rescind a Trump-era asylum policy, the Migrant Protection Protocols.
And Texas challenged that attempted rescission in Amarillo. They filed in there so that they could draw Judge Kacsmaryk.
Chris Hayes: Oh, really? Oh, that’s such a weird coincidence.
Steve Vladeck: Right.
Chris Hayes: Oh, they just happened to be in Amarillo that day? OK, I got you.
Steve Vladeck: It’s funny how that works. So Judge Kacsmaryk had issued a nationwide injunction blocking the rescission of MPP. The Fifth Circuit had refused to stay the nationwide injunction, so it had left it in place.
And so the Biden administration goes to the Supreme Court, and it says, hey, Supreme Court, you just spent four years staying all of these nationwide injunctions against Trump immigration policies. Can we get some, too, please?
And over the public dissents of the three Democratic appointees, the Supreme Court said no and did not stay the injunction.
Chris Hayes: Wow.
Steve Vladeck: But, Chris, then at the end of last term, the Biden administration won that case on the merits, right, five to four. And so I think part of the problem is that even if you were going to say we don’t care about the procedural limits on the court’s power, we don’t care about them totally front-loading merit decisions and all of the bad things that come with that, they’re still not actually accurately predicting their own bottom lines.
Chris Hayes: Right, that’s really well said. The other thing I’ll say from a lay perspective, this is not quite a legal analysis, but it’s someone like myself who follows the news, covers the news. There’s a kind of epistemic problem here. It’s not quite factual and it’s not quite legal, but here’s my version of it.
Steve Vladeck: Yeah.
Chris Hayes: So, you know, first of all, the hubris involved in Kacsmaryk’s mifepristone, which is like, well, I’ve read these filings and I’ve done some arguments. And I think the FDA, which has, what, tens of thousands of employees, is probably one of the most respected institutions of its kind in the entire world, whose entire life world and institutional knowledge is built around determining whether drugs are safe and effective. I’ve done a little bit of reading and I’m a judge, and I think they screwed up.
Like there’s an incredible sort of hubris there. But to me, what was even more hubristic than that, which itself was hubristic, was the Fifth Circuit in the course of like two and a half days with like, I don’t know, probably like seven or eight law clerks who are 25-years-old, chugging Red Bull, going back and being like, actually, here come these 25-year-olds who are all like on the law review. Good for you. You’re all very bright.
We’ve actually gone through and in 72 hours of chugging Red Bull, we’ve decided that the FDA was right in 2000, but got it wrong in 2016 when they opened it up to telemedicine. It’s like, give me a break. Give me a break. How in the universe are these seven 25-year-olds who were good on law review and hopped up on caffeine the ones to make the determination about whether telemedicine is the appropriate means to prescribe mifepristone? Like, it’s such a ludicrous undertaking.
And the fact that there is zero humility from anyone involved in this process that says like, not sure we’re the ones to make this call under these circumstances, is so outrageous to me. It’s like it is such a bit of like, sort of imperialism by the courts to grab other people’s areas of expertise and knowledge and claim them as their own in the most ludicrous circumstances to actually come to proper deliberative decisions.
Steve Vladeck: Have you met the Fifth Circuit?
Chris Hayes: Yes. I mean, that’s what I’m saying. It’s really wild. It would be like me showing up at a car factory tomorrow —
Steve Vladeck: Right.
Chris Hayes: — and being like, give me 24 hours, I’m going to reinvent how you’re making cars here. I’m a smart guy.
Steve Vladeck: I mean, Chris, you asked about the why, right? And I think it’s not so much nationwide injunctions by themselves. Like, in the old days, it’s not like we never had outlier district judges before. In the old days, if you had an outlier district judge, the thing that would typically rein them in was the court of appeals. And you’d only have to go to the Supreme Court if both a single district judge —
Chris Hayes: Right.
Steve Vladeck: — and at least three or, well, two court of appeals judges were all off the reservation. And I think it’s not for nothing that a number of these, especially Biden administration emergency applications that the Supreme Court is grappling with, are coming from the Fifth Circuit. The vaccine mandate for Navy SEALs, the H.B. 20 case in Texas about the social media content moderation law, the immigration enforcement case the court has this term, the MPP case last term, one of the student loan cases.
I mean, part of what’s going on is not just that they’re sort of outlier district judges, but that there’s a court of appeals that is, I think I can say without speaking out of school, enabling that behavior if not affirmatively upholding it.
Chris Hayes: Yeah. And the Fifth Circuit is the one that has Texas in its jurisdiction and is probably the Trumpiest or most right-wing or I don’t know what you would call it, but the most sort of aggressively right-wing court in the nation.
Steve Vladeck: Yep, no question. What that gets to, though, Chris, is, again, what happens when the Supreme Court isn’t explaining itself. So in the old days, if a lower court was repeatedly behaving badly, that would eventually provoke at least some kind of slap down. The Sixth Circuit, back in my clerkship days, it wasn’t unheard of for the Supreme Court to slap down the Sixth Circuit, the Cincinnati-based federal appeals court for being too partial to criminal defendants and for sort of not following the Supreme Court. Those were the days. And for not following the Supreme Court’s instructions carefully enough.
And so, Chris, one of the things that happens when you don’t get the sort of principled explanations that we’re used to from the court, when all you get is a thumbs up or a thumbs down, is there’s no opportunity for the kind of quiet conversation, the kind of sort of back and forth between the Supreme Court and lower courts that actually in the past has had a salutary effect in regulating behavior.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: How much is it also just the court, the 6-3 majority or particularly the five of the six are just in a hurry? Like there’s a palpable sense of rush to everything they’re doing. And it’s like whatever it is, like Roe, now Chevron, you know, whatever we can get our hands on, like, the whole sort of agenda we’re not going to futz around here. We’re going to move on it quickly.
And so, expedited review is a sort of means of moving things quickly. We want to move quickly to transform this court and wrench it in the right direction.
Steve Vladeck: So I think that is probably the best explanation for, sort of, the impulses that are guiding the justices in these cases. But impulses ought to be overcome by reason and impulses ought to be overcome by precedent and by rules. I think one of the things that I really try hard to document in the book is that the justices, it’s not just that they’re going right to the merits all the time. Sometimes, Chris, they’re hiding behind procedure.
Not to get too far into the technical stuff, like in the S.B. 8 Texas abortion ban case, the one —
Chris Hayes: Oh, yeah. It’s such a disingenuous (ph) —
Steve Vladeck: — it was. But, Chris, I don’t know how, not you, but how anyone could say with a straight face, like all they’re doing is getting to the merits. And then in the S.B. 8 case, they wrote a paragraph about Ex parte Young, about a very procedural doctrine that was the putative justification for non-intervention there. So the problem is that the more you look at the whole body of cases, the less any one plausible, principled, neutral, coherent explanation, explains them. And the more it really looks like the justices are just doing whatever they feel like on the day that they’re voting.
Chris Hayes: So that last sentence to me gets to what the real core of this question, right? Because to me, the shadow docket is epiphenomenal in the sense that when you said that when Kavanaugh comes on the court and then when Amy Coney Barrett, we see sort of this explosion in this, and to me it’s a facet of what this court and deeper than that, what the Supreme Court is.
The Supreme Court is not a court in any recognizable sense, which is to say the court can cite precedent, but it doesn’t have to, it can overrule it. It doesn’t have to adhere to any rules or anything other than what five justices want to do. Like, that’s not true with any other court in the land. You know, I mean, I guess state Supreme Courts maybe function in similar fashions, but they’re just doing something different than the other courts are doing. And fundamentally, that different thing they’re doing is governing via majority power, basically.
Steve Vladeck: Chris, this is why the book starts with the story of certiorari, because that move, that development, that power is not one that the court was born with and is not one that the court exercised at any point in its first century, even really 125 years of existence. It’s really an outgrowth of the rise of certiorari and the power that it deliberately gave to the court to set its own agenda and to use its agenda setting function to basically decide when and how it would intervene.
And so if there’s a sort of longer, broader takeaway here, it’s that Congress giveth and maybe Congress taketh away, right? The part of what the shadow docket is a symptom of a broader disease of Congress basically giving the court all this power and no longer exercising any modicum of control over how it’s exercised.
Chris Hayes: How do you view the possible reforms of this? I mean, there’s partly naming and shaming, which I think does help. And actually, you have been the target of some individual ire from federal judges, and I think justice if I’m not mistaken.
Steve Vladeck: Yeah.
Chris Hayes: I forget. Sam Alito’s burn book is very long, so I forget who’s on it, but I think you’re in there.
Steve Vladeck: He called me out in his Notre Dame speech.
Chris Hayes: Yes, in the Notre Dame. Yeah, you and Adam Serwer.
So there’s a certain naming and shaming. They read the internet and they know these criticisms and Kacsmaryk is very salty about criticisms. I guess that has one effect. But how do you conceptualize fixing this problem?
Steve Vladeck: So I think where we have to start, Chris, is by identifying what the problem is, right? And I think the shadow docket is actually not the problem.
Chris Hayes: Right. Yeah, it’s epiphenomenal. Right, exactly.
Steve Vladeck: I mean, epiphenomenal is part of it, but this is a common Justice Alito rhetorical trope is to say, well, we have to be able to intervene sometimes. You know, the problem is not emergency intervention. The problem is inconsistent unprincipled emergency intervention.
Chris Hayes: Right.
Steve Vladeck: The way to fix that is not, I think, to limit when the court can intervene. I don’t think the answer is to destroy the shadow docket. The way to fix it is to bring back that healthy interbranch dynamic that actually pushes the court, that exerts pressure on the court to stay within its lane, to follow its procedural rules, to not stray too far out of them.
And indeed, Chris, and when things get out of kilter in the lower courts, to not just assume, hey, we can fix this, but to actually go to Congress. Chief Justice Burger, who I think is maligned by everybody these days, one of, I think, his better ideas is he instituted in the Chief Justice’s Year-End Report in the mid-1970s, he envisioned it as a State of the Union of the judiciary.
Chris, at least in part, it’s an invitation to Congress. Like, hey, Congress, here’s what we need, right? Can you help a court out? And that persisted through Burger’s tenure, through Rehnquist’s tenure. It was only in 2009, about four years into Chief Justice Roberts’ tenure that the Year-End Report stopped asking for things. And I think that’s a symptom, right?
Chris Hayes: Yeah.
Steve Vladeck: So to me, the way we fix this problem is we actually build a consensus, a hopefully bipartisan consensus, that the court as an institution is healthier when it’s part of a meaningful interbranch dynamic and dialogue and not when it is aloof to it. And that an independent court doesn’t mean an unaccountable court or else you’re just going to see more and more examples of the justices doing whatever the heck they want without regard to procedural norms, to principles of transparency, to even sort of broader concern about their eroding legitimacy.
Chris Hayes: Stephen Vladeck is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. And his new book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” is out wherever you get books.
Professor Vladeck, that was fantastic. Thank you so much.
Steve Vladeck: Thank you for having me, Chris.
Chris Hayes: Once again, great thanks to Professor Stephen Vladeck. You can pick up his new book wherever you get your books.
And send us your feedback. I’m curious, honestly, for two audiences, lawyer audiences and non-lawyer audiences, about that podcast. I really enjoyed it, but it’s fairly technical stuff, so we’re trying to sort of straddle the line. If you’re a lawyer, I’m curious if you found that, like, sort of too slow and boring because you knew all the civil procedure stuff. If you’re a non-lawyer, I wonder if you found it, like, too much. But anyway, I’m curious to hear.
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“Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway, and Brendan O’Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.
Tweet us with the hashtag #WITHpod, email WITHpod@gmail.com. Follow us on TikTok by searching for WITHpod. “Why Is This Happening?” is presented by MSNBC and NBC News, produced by Doni Holloway and Brendan O’Melia, engineered by Bob Mallory and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to nbcnews.com/whyisthishappening.