The Shadow Docket, with Stephen Vladeck

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Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
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Tim Kowal  1:14 
All right, Jeff. Well, today I'm very excited to welcome Steve Vladeck to the show. Steve's New York Times best selling new book is The Shadow docket how the Supreme Court uses stealth rulings to amass power and undermine the Republic. Steve is the Charles Allen Wright chair in federal courts at University of Texas School of Law. He's a nationally recognized expert on federal courts, constitutional law, national security, law, and military justice. Steve has argued over a dozen cases before the US Supreme Court, the Texas Supreme Court and various lower federal civilian and military courts, Steve has testified before numerous congressional committees executive branch agencies and the Texas Legislature and has served as an expert witness both in US state and federal courts and in foreign tribunals. He is also the co host of the award winning national security law podcast. He is CNN Supreme Court analyst and a co author of aspen publishers, leading national security law and counterterrorism law case books and editor and author of one first, a popular weekly newsletter about the Supreme Court. So all things Supreme Court related. Steve is our expert on today's podcast. So welcome, Steve. Thanks for joining us today.

Stephen Vladeck  2:25 
Thanks for having me, guys. It's a real treat to be with you. Now,

Tim Kowal  2:28 
you know, you've got a you got a long and distinguished resume, if you would tell us a little bit about your path from practitioner to professor and commentator. Well, it was

Stephen Vladeck  2:36 
pretty fast. I never actually practiced law full time, I was the sort of overly eager slash arrogant Young Turk who went from clerking on the Ninth Circuit and San Francisco, right into the academy. So I started teaching at University of Miami, in the fall of 2005. I was Gosh, 25. On my first day of class, I was in a room with 20 Federal Court students 18, of whom were older than me. So that was that was interesting. But you know, one of the best parts about the academy is, especially if you're active in your field, there are opportunities to practice on the side. And so I was able, you know, as time went on, first of Miami, then an American and now at UT to have a chance to do a lot of amicus work to do some party work. And you know, a couple of those cases turned into Supreme Court cases. So that's been a lot of fun.

Tim Kowal  3:21 
Yeah. Well, tell us a little bit about your experiences in the US Supreme Court. You gotta go must have a couple of war stories there. And in your sojourns to the Supreme Court.

Stephen Vladeck  3:31 
Yeah. might even win one one of these days. So I've already had three cases in the Supreme Court. The next one, I wouldn't be the first. I guess they're, you know, the My Favorite war stories. The first argument I ever did was in January of 2018, was actually the first argument of mine in any court in my career.

Tim Kowal  3:47 
argument in court was the US Supreme Court. Yeah, it was a

Stephen Vladeck  3:50 
little it's a little, you know, I started big. Yeah. And we're about two thirds of the way through the oral argument, when Justice Kennedy with this very sort of mirthful expression on his face leans over the bench, because one of the things you don't really realize until you actually are in the Supreme Court courtroom is just how close you are to the justices when you're arguing. And he sort of leans over the bench a little and says, was Marbury vs. Madison, right? And basically, everyone in the courtroom just breaks out in laughter because they don't realize he's actually asking him a serious question that's relevant to the case. And so I'm, you know, I'm there trying to figure out like, what the heck, you know, Justice Anthony Kennedy just asked me if I think Marbury vs. Madison was rightly decided, like, what am I supposed to do? I you know, Tim, I'd prep for most of the questions I got and that argument I had not prep for is Marbury. Right. So I fumbled through. Yeah. I fumbled through some answer about how, you know, I think that Chief Justice Marshall interpreted both the statute and the constitution so he could reach the result he wanted to reach. That being said, I'm not sure he was wrong. And if there are no other questions, I'll reserve the balance of my time. And I sat down as fast as I possibly could

Tim Kowal  4:54 
let me sit down before before the Justice thinks of another 100

Stephen Vladeck  4:58 
No follow ups and then My third argument was actually one of the COVID telephone arguments. And I will just say that having argued to the US Supreme Court by telephone, and I hope to never, ever, ever do it again.

Tim Kowal  5:10 
Tell me about that experience,

Stephen Vladeck  5:12 
it was horrible.

Tim Kowal  5:14 
What specifically was negative about it just not being able to see the that's, that's what I get is that you're not able to see whether they're leaning in whether their eyes are closed, whether they're thoughtful, whether they're bored.

Stephen Vladeck  5:23 
So I think there are two features. The first is you can't see them. And so therefore, you have no idea, you know, what they're doing or why, but the second is, at least when I did this, and this was October 2020. All they were doing was seri autumn questions. So each justice got three minutes, there was no free for all, which meant that they had no ability to talk to each other. And so you couldn't tell if you know, Justice X is asking your questions, or is that what they're genuinely interested in? Or is this just their three minutes and they're, you know, fill in time, you couldn't tell? You know, how the justices were trying to sort of engage with each other. You couldn't tell where the pressure points were? Really, it's like just arguing into a black hole. And so of the two I'll take a Marbury question in person over arguing into the phone six days a week and twice on Sundays.

Tim Kowal  6:10 
Oh, good. That's a good compare contrast. Yeah. rather take the most unexpected question. You can imagine the over over arguing via telephone. All right. Well, Steve, you've been podcasting since 2017. With the National Security Law podcast, taking a gander at the fairly voluminous archive of your past episodes here. The podcast, obviously, is covered many instances of arguable overreach of executive power. And your new book that we'll be talking about in a minute here, the shadow docket discusses, you know, arguable overreaches of judicial power. And I wondered if there's a connection there. If you're kind of it, your mind is attuned to looking for overreaches of power. And whatever branch it might lie.

Stephen Vladeck  6:48 
Yeah, I mean, it's funny, the more I've thought about the book, Tim, the more I thought that there actually is a connection. And you know, I think the connection really is sort of institutional relationships and the separation of powers. So I've been fascinated by, you know, the separation of powers just in general since I was, you know, in law school, but especially in the context of how Congress asserts institutional authority over the other branches. And, you know, one of the things that I think actually unites some of my work on executive power and national security, and some of my more recent work on the Supreme Court is they both have similar How do I say structural deficiencies, in the sense that in both contexts, you've seen, you know, an increasingly dysfunctional, gridlocked Congress able to do increasingly less to assert itself institutionally against the other branches, leading to, you know, growing assertions and accumulations of power by both of the other branches, regardless of who's in charge. I think that's that's true of the executive, whether it's been a Republican president or a Democratic president, maybe different types of policies, but similar assertions of power. And, you know, I think they both had out their cause. And at their core, the same root breakdown, which is Congress doing its

Tim Kowal  8:00 
job, the breakdown, is Congress not doing his job. Exactly. So right,

Stephen Vladeck  8:05 
the, you know, at the risk of being a law professor for a second, right. You know, Madison wrote in Federalist 51, that the way we were going to get the separation of powers to work was not by hermetically sealing the branches from each other. But by having them competing with each other. He says, ambition must be made to counteract ambition, right? We want them pushing the envelope at the same time, because they by pushing the envelope against each other, they will end up regulating each other. And I think there's been a fair amount of ambition in the executive branch in the last half century. I think there's been a fair amount of ambition in the court for the past half century. And you know, there's plenty of political ambition in Congress, but very little institutional ambition.

Tim Kowal  8:45  
Interesting. Yeah. Something you said reminded me of I remember reading, I think it was Justice Sandra Day. O'Connor's concurrence, I believe in the city of Bernie case. And at this point, don't make me Don't count on me to recite the facts of the case. I just remember there's something in our concurrence that basically was almost like a not a challenge is not the right word, but basically saying, okay, the Supreme Court has told the legislature that, you know, you overstep, but that's, you know, we're not the end if you feel it's wrong, or you feel there's another way around it, give it another try. And that's kind of the that's the process is, you know, there's always push and pushback. There's always, you know, attack and defend. And that's just part of the process. It's not like the Supreme Court speaks, and then the other branches forever cower in the corner. You know, there's, there's always pushing push back.

Stephen Vladeck  9:26 
Yeah. Although, I mean, I think there's been more power. And lately, Tim, I think the we look around and we say, Hey, how did we get to a point where the US Supreme Court is basically in the middle of every single contentious policy dispute of our time? And part of the answer is, you know, what we're going to talk about with the book and part of the answer is because, you know, the political situation we're in the politics of the moment are basically given in the Supreme Court the last word in lots of contexts in which historically it would not have had the last word right, it might have had the first word or the second word, and Congress might have pushed back. I mean, there are so many examples throughout history of Congress responded to a Supreme Court decision by legislating in the other direction. And you just you know, I can think of one recent example of that the Lilly Ledbetter Fair Pay Act about a decade ago, but that's really it. And it really ought not to be a once a decade phenomenon,

Tim Kowal  10:16 
that Prelude, let's jump right into a discussion about your book. The book is titled The Shadow docket how the Supreme Court uses stealth rulings to amass power and undermine the Republic. Now, the shadow docket is, you know, basically, I think it's been defined as everything that happens outside the merits docket. But most significantly, I think what gets the most press is when we talk about stay requests that seems to get the most traction. I think that several of the examples in your book focus on that type of issue and you start the book with the example of the Supreme Court's shadow docket decision declining to stay the Texas heartbeat act. And you mentioned Justice Kagan's dissent from that order, where she stated that the refusal to block that anti abortion law was quote emblematic of too much of this Court's shadow docket decision making, which every day becomes more unreasoned inconsistent and impossible to defend and quote, now, Steve, what did Justice Kagan mean by that? I think that was maybe the first time the court itself had referred to the shadow docket explicitly.

Stephen Vladeck  11:17 
Yeah, I mean, there's, there's a stray reference to it in a 2019 dissent by Justice Sotomayor, but that she was not the reference there was just in a citation, actually, to something I had written not not in the text. So it was the first time that the shadow doc was referred to by name. You know, Tim, I think what Justice Kagan was referring to is something that the book, it's unfortunate to wait, because I was in the middle of writing in the book when that opinion came down, and like, Darn it, Justice Kagan, you know,

Tim Kowal  11:41 
rewrite the intro. Well, I

Stephen Vladeck  11:43 
mean, so I want she both, you know, sort of summarize what was going to be my conclusion, but also gave me an epigraph. So, you know, the court has always had I mean, any appellate court, and this will be true in state courts or Federal Court and the appellate court need some mechanism for dealing with emergency applications. Right. You can't have an appellate court with no mechanism for moving quickly. And emergency relief, I think is just a necessary component of any legal system that has coercive orders, because course, you know, damages judgments, whatever like, though, you know, you don't it's the rare case where you would need emergency relief from a damages judgment. Yeah. But when you have a harm, as right when you have coercive orders, I mean, but But you know, when you have course of orders, you're going to need emergency relief, and at least a nonzero set of cases, the problem is not the existence of an emergency docket as part of the shadow docket, right. The problem that Justice Kagan was putting my finger on is how the court has used it since 2017. So this is the story the book tries to tell is the shift that really took place starting in the beginning of the Trump administration, and why that shift was problematic, right? Why even if you were sympathetic to the results, that the court was reaching, in those cases, why the behavior was actually reflection, reflecting on deeper, deeper pathologies?

Jeff Lewis  12:54 
Yeah. You know, it's super interesting. I think I had a misconception about the shadow docket before I read this book, and that I viewed the Supreme Court justices is like baseball umpires that call balls and strikes, as the players, you know, throw their pitches or bring their applications. They're more or less neutral. And the story that emerges from your book is that there's gamesmanship played by the lawyers. And now these applications are brought, but there's also been an increase gamesmanship on which applications are heard and how they're heard and how they're processed. And yeah, it's a it's a real problem in terms of the integrity and public confidence in the court. And before we do jump into the merits, or the discussion of the book, I just want to thank you for writing it really educated me.

Stephen Vladeck  13:32 
Thanks, Jeff. I appreciate that. Well, and that must have been you guys, you guys are appellate lawyers. I mean, you guys are used to the idea that there are appellate courts that have large swaths of discretion over their docket. I mean, the California Supreme Court is obviously an example of that. I think there are a lot of folks who are either not lawyers or who are not necessarily appellate lawyers, who might be surprised at just how much control the Supreme Court has over its docket. And this is not just the emergency side, right. This includes the picking and choosing which merits case is going to hear. And, Jeff, this is to your point, and the implications of that kind of control, that when a court has that kind of control over its docket that is necessarily going to create all kinds of incentives for strategic behavior that you wouldn't see with a mandatory docket, right with a mandatory docket, you know, the appeals just calm and you decide them and you go, you go on to the next one. Yeah,

Tim Kowal  14:22  
they have to be given full full opportunity for briefing oral argument. And then there's conference and, and the opinion writing.

Stephen Vladeck  14:29  
And so there's no opportunity to pick and choose like, oh, actually, you know, we know we want to decide issue a, we want to decide issue a and k 17, as opposed to case 11. Right. Like that's, you know, that's not a luxury you have when you're a court with a purely mandatory docket. So one of the points that I really wanted to convey in the book is not just the fact that the Supreme Court has over time been given and taken all of this control over over its docket, but to just point like, Tim, what me what the implications are for how much control that gives the judge Justice is the party's lower courts over the structure and how these cases get to the Supreme Court.

Tim Kowal  15:06  
Yeah, let's take a step back just for a moment and talk about one point of procedure that maybe a lot of a lot of us appellate attorneys aren't aware of. Because I suspect it plays a role in the process of dealing with these emergency with this emergency docket that we've been talking about. And that's circuit assignments, the Supreme Court circuit assignments, the Supreme Court assigns an individual justice to each circuit to handle these state requests within the circuit. Steve, can you tell us a little bit about the function of the circuit assignments? And how that factors into our conversation about the shadow docket? Are the circuit assignment justice is supposed to handle all these state emergency state requests by themselves? How does that play into our discussion here? Yeah, I've

Stephen Vladeck  15:44 
been so in the old days. Yes. So the circuit justice, this is actually sort of the modern version of what in the old days was a much bigger deal. So you know, under the Judiciary Act of 1789. And really, guys, as late as 1911, the circuit justices actually had circuit responsibilities, where it wasn't just that they had responsibilities within the Supreme Court for a subset of cases. But they literally were part of the circuit. Indeed, they were the circuit for a period of time, there were

Tim Kowal  16:12 
involved in the daily activities within the Ninth Circuit stay where we are.

Stephen Vladeck  16:16 
I mean, there was no Ninth Circuit until, you know, there was no such thing as a Ninth Circuit Judge. No, no, but I don't just mean like 17 or not, like there was no such thing as a Ninth Circuit Judge until 1891. Before, you know, with a couple of exceptions before 1891, the circuit courts were a court comprised of the local district judge and the assigned Supreme Court Justice, and that was the circuit court. So you know, that's the that's the way Oh, that's the way back. The modern sort of derivative of that is that when any kind of procedural matter comes to the court, it's supposed to be resolved in the first instance, by the geographically assigned circuit justice. And Tim, in the old days, we actually appointed justices by circuit, right. So until 1869, each circuit got a justice. That's not true anymore, obviously. So until 1980, I'm sort of getting a little bit foreign to the historical leads. But until 1980, the norm was any emergency application, any procedural application would be resolved by the circuit justice in the first instance. And the circuit justices job was to act as a proxy for the full court hold oral argument, if necessary, write an opinion, if necessary, but all by yourself, so that no one would ever confuse a brief opinion written by I don't know, Justice Douglas, in chambers or Justice Powell, in chambers with a decision to the full court that shifts started in 1980. In the book, spend some time looking at how the reinstitution of the death penalty in 1976 Really precipitates the shift, where the court really abandons not the Tim, not the formality of the circuit justice model, but the reliance upon it. So it's still true today that an application is directed to the circuit justice, but if there's any chance that the courts going to be divided, Tim, the norm now is for the application to be referred to the full court and for the full court to rule.

Tim Kowal  18:07 
And is that incumbent on the the circuit to sign justice to know that, okay, that's going to be a split on this. So we got it, I gotta refer it to the whole court or to

Stephen Vladeck  18:13 
ask I mean, I think, you know, I think we have reason to believe, which is the best I can say, because none of this has ever actually written down anywhere, that it's actually relatively unexceptional for the circuit justice to take an informal poll of his or her colleagues. And, you know, I guess one of the things that had that shift happens in 1980, Tim, almost entirely in death penalty cases. But when that shift happens, the court does not commit itself to replicating the procedure that was available before the circuit justice, the court does not hold oral arguments on applications. It doesn't have any between 1971 and 2022. It doesn't write an opinion, except in the most exceptional case. And so you get the shift from a circuit justice driven model, which was one justice, but lots of process to a full court model with less process. And you know, we get 3536 years of that that's primarily in the death penalty context. So most people don't notice it, or insofar as they do notice it. They think it's just about capital cases. But we don't really see the sort of the this model being used for issues of statewide or nationwide importance, the way that we've been seeing it lately until 2016 2017.

Tim Kowal  19:22 
That's fair. That's very interesting. So it sounds like just just for clarity, it doesn't sound like you are suggesting that there's we're going to be talking about some arguable abuses of the use of the shadow docket. But I don't hear you saying that there is an abuse in the way that the that the circuit justices the circuit assign justices are not referring stay request to the entire court and just deciding in themselves

Stephen Vladeck  19:44 
that you know, I mean, I mean for you, no, no, I mean, for all of the for all of the noise out there about how distrustful certain parts of the community are of certain justices. I can't think of Tim any recent example of an application that a circuit justice did not refer to the full court on which he or she was later overruled.

Tim Kowal  20:03 
Got it. It's a different. So the the type of abuse or at least one of the types of abuse that you're talking about in your book is, is the manner in which the circuit assign justice is, is faithfully either determining one way or the other, that there's going to be a split, and it needs to refer to the whole court. But the court instead of, as it did in the past, you know, hearing hearing argument and briefing and issuing a written opinion or written ruling, deciding the matter, it's just doing all this in a relatively summery fashion, correct? Well,

Stephen Vladeck  20:32 
yes, I guess the thing, the connection to the past that I might just sort of tweak a bit is there really weren't a lot, even in this, even in the pre 1980 era, there weren't a lot of examples of parties seeking emergency relief from circuit justices on sort of the statewide or nationwide issues, right, like even before, like, just the nature of the dispute is also a part of the shift here where, you know, there are a hand I mean, that book talks about the Cambodia bombing case in 1973. But, you know, that was the exception that proves the rule. There weren't that many super high profile, you know, nationwide, or statewide policy fights, resolved through emergency applications. That's one of the real shifts here. So that what 10, the phenomenon that I think sets off the book and sort of got me to thinking about this when I first started writing the book is started in 2017. When you have President Trump who is subject to a whole bunch of, you know, nationwide injunctions blocking his policies, when he goes to the Supreme Court and seeks emergency relief, he seeks stays of these injunctions. He's asking for relief that the court has been providing as a full court since 1980. But in a context in which it really hadn't been acting at all right in which like, I mean, you asked folks who clerked on the US Supreme Court in the 80s, the 90s, the 2000s, what they remember about emergencies, they would just say, death cases. And so the what the shift is not just that it's the full court, the shift is that all of a sudden, almost overnight, and 2017, the full court is acting on emergency applications that are not just about whether state a can execute prisoner B, but about whether a nationwide policy should or should not be in effect about whether a statewide policy should not be in effect. And so what that means is that these unsigned, unexplained orders start having a much bigger effects on the ground.

Tim Kowal  22:18 
Yeah, yeah, I want to I want to get to that, that this issue of nationwide injunctions. But you also mentioned the the President Nixon's bombing of Cambodia, which you open with a very trenchant example, in your book on the shadow dock and you relate the first use of the shadow docket by Justice William O. Douglas in 1973. When his on acting on his own from a post office in Yakima, Washington, some 3000 miles away from his chambers in in, in DC and acting on his own authority. He enjoined President Nixon's bombing of Cambodia. And, and I thought this was interesting to to note, and it's not completely irrelevant. It's you know, it has some relevance to our discussion here that Justice Douglas wasn't he was an early environmentalist on the court, and he had written in Sierra Club vs. Morton in 1972, that inanimate objects like rivers and trees should have standing to sue. You also authored the Griswold versus Connecticut opinion, formulating rights based on the numbers and emanations. And I thought I wondered about the example that I thought might be relevant is if we're talking about expanding standing and other court doctrines and policies that potentially increased the the amount of federal litigation, you know, there used to be a used to be a saying don't make a federal case out of it. And now everything's a federal case. And we talked about there, the appellate courts, including the Supreme Court have a need for disposing of all these emergency orders. And I wonder if you've seen in your research of the shadow docket, if if there's any correlation between the the amount of litigation, the you know, the pressure on the Supreme Court's docket, could that possibly be another explanation for why the court has to dispose of a lot of these matters? And in a more summery fashion and disposing of some of the other nice procedural safeguards? We have like briefing and argument and rulings on you know, written reasoned rulings? Yeah, I

Stephen Vladeck  24:06 
mean, the problem with that is that all of the sort of aggregate numbers for the Supreme Court are down, the court is receiving fewer total appeals every year, the court is ticking fewer cases every year in the term that just basically unofficially wrapped up on June 30. I think we had 58 decisions and argued cases or at least scientists, there's already cases, you know, that's the fourth term in a row. They've been under 60. They hadn't been under 60. Before that since 1864. So, you know, I think it's a perfectly fair explanation for what happened in the early 1980s, that these procedures were adopted in reaction to a floodgates problem, which was the flood of emergency applications and death cases, a flood that the Supreme Court was partly responsible for, but that's another story. I don't think there's a similar sort of pressure stabilization narrative here. You know, something I mean, some folks have have argued that the sort of the frequent the growing frequency of these orders in recent years as a response to the proliferation of nationwide injunctions. That too is actually not consistent with the overall data. There are plenty of applications that the court has handled that weren't nationwide injunctions there have been requests for emergency relief from Nationwide injunctions brought by the Biden administration, the court has turned down. So you know, I think one of the things that one of the reasons why I wanted to write a book, as opposed to just a law review article, or something else short is because it really is only when you look at the entire data set that you really see how any of the Tim more benign or neutral justifications for the courts behavior over the last six years don't hold up. And how if you if you test any of the sort of theories against the entire dataset, you got a mismatch instead is, as the book tries to argue, I think what's really happened is that there's now a majority of justices who have a particular understanding of when emergency relief is or is not appropriate. that's inconsistent with the court's prior standards, but that have declined to articulate what the new rules are. And so you know, we as lawyers, government officials, lower court judges have a problem where it certainly seems like the court is not following its rules for emergency relief, but where the courts not telling us what it's doing. And so to go back to where you started, Tim, this is Kagan's quote about it. She says unreasoned inconsistent and impossible to defend so unreason. I mean, that's just you know, that's the unfortunate continuity of the norm. I think the inconsistency is the problem, because now what you see when you start looking at all these cases put together is context in which the court ought to be ruling the same way in different types of cases, if they really are following any neutral legal principle. But in fact, Trump is winning and Biden's losing red states are winning blue states are losing so that it looks like the best justification for the courts behavior is that they're just playing favorites, right, that they're sort of picking the policies they like and not not supporting the policy that they don't like. And that's exactly the problem, which is, you know, the lack of at that point, the fact that they're unreasoned compounds the issue because there's no countervailing explanation from the justices for why they ruled one way in one case in a different way, in a similar looking case.

Tim Kowal  27:18  
Yeah, I have more questions I want to ask you. So this sounds like I'm skipping to the end here. But I want to ask what your proposed solution would be. And if the Court were to just issue a reasoned decision on its ruling, Would that solve the problem? Or is it? Is it also skipping the skipping the other steps of a briefing and argument?

Stephen Vladeck  27:37  
So I think providing reasoning would be a good start, I think it is unrealistic to expect the Supreme Court to provide reasoning accompany every order. So I would start with at least orders that grant emergency relief that is that disrupt the status quo seems like it ought to be, you know, a no brainer that those at least should come with a modicum of explanation. And you know, Tim, I guess, then the question be like, you know, and what are the explanations persuasive. But that's what we usually do when we get opinions from courts. But there's a broader problem here. And this goes back to where we started, which is, you know, the shadow docket to me is also or at least the recent courts use of the shadow docket is a symptom of a broader disease, which is just that Congress has gotten so completely out of the business, you know, regulating the courts docket at all. And so to me, like part of the solution here, yeah, would be for the court to come to its senses. But part of it Tim would also be for Congress to get reinvested in how the court is structured and shaping its decision making. And that could come you know, there are lots of ways that could happen. I'd be I'd be over the moon if anything had happened.

Tim Kowal  28:37 
Yeah. Yep.

Jeff Lewis  28:38 
Let me ask you, though, is there a danger there? You know, they talked about maybe expanding or rebalancing the court with additional seats. And, you know, you could see with the house getting a new majority and flip flopping that those efforts could go back and forth. Could you see politics entering into this in terms of how the court hears cases changing by which party has control of Congress? I mean, could that make the problem even worse and more politicized?

Stephen Vladeck  29:05 
Yes. And no, gentleman again, right. So I'm anti court expansion for exactly that reason, because I think it's just so transparently partisan, that, you know, even if Democrats were able to do it, then the Republicans do it next time, they're in charge. And, you know, 25 years from now, we'd have a Supreme Court with 41 justices, no legitimacy to me, to me the dockets different, right, because if it's an institutional reflective if Congress is saying, hey, Supreme Court, we want you to have mandatory appellate or so we want you to have to hear any appeal, in any case about a nationwide injunction, right? Like that, to me, Jeff doesn't have any kind of obvious partisan or ideological valence, right. That's just like, hey, we want you to take all these cases, because whether the President's Republican or Democrat, those cases are likely to be pretty important, right, like the end. So that's the conversation I'm trying to foster I'm trying to sort of facilitate is how do we push toward those kinds of institutional reforms that are not Whether intended to nor appear to be about, you know, a short term partisan political victory for whichever party happens to control the political branches. And you know, until not so until not that long ago, that was how we tended to think about Congress's relationship with the court. There is a long history of Congress, a certain institutional control over the court, Jeff, both when it was controlled by the same party as the majority of the justices and when it wasn't. And I think that's that's what's really fallen by the wayside in the last generation. Do you have

Tim Kowal  30:29 
any, any ideas in mind for how the how the Congress might consider exerting some of its traditional historical constitutional controls over the court? Sure. I

Stephen Vladeck  30:38 
mean, I think Congress really ought to revisit just how much discretion it's given the court over its docket, I think it should bring back at least a handful of chunks of mandatory appeals. We could even start, Tim, by looking at the kinds of cases that keep ending up on the emergency docket. So you know, challenges to methods of execution. And those states that are adopting new execution protocols, why not make the Supreme Court here, the first of those cases, each time a state changes its execution protocol, so that it's forced to hand down a guiding substantive principle that's going to help lower courts resolve the second third, and, you know, end cases in the same state that seems that that ought to be low hanging fruit. Even if Tim the courts going to resolve those cases, maybe not in the way I would want them to, it's still resolving them in a way that I think advance is the ability of the legal system to function.

Tim Kowal  31:24  
Okay, giving the Supreme Court original jurisdiction in those those those manner of exit, so

Stephen Vladeck  31:29 
not not urgent, not original, but mandatory appeals. Right. So So requiring them, so right, original jurisdiction, that's like the weird, you know, California versus Nevada cases, but like, you know, require, like the first time that either a state or a death row prisoner has a an appeal about a new method of execution require the Supreme Court to hear it.

Tim Kowal  31:48 
So they skip the Circuit Court of Appeals and goes to go directly to the Supreme Court, or even

Stephen Vladeck  31:53 
have it be mandatory from the circuit. I mean, you could do it either way. You know, there was a tradition from the early 20th century until about 1976, there was a tradition of having certain cases go to what are called three judge district courts, where Congress basically blended the functions of the district court and the court of appeals. And once the three judge district court rule, that was a mandatory automatic appeal to the US Supreme Court, right, more of those, I think, can be a positive way. Congress used to actually exert more control over the courts calendar, Congress used to assert more control over the courts budget Congress in 1964, because it was mad at the court for a whole bunch of very, very progressive decisions actually refused to give the justices the same pay raise that it gave to every other federal judge in the country. You know, I mean, these are not like, you know, constitutional crises. These are just Congress using a bunch of the levers at its disposal, Tim, not to like fundamentally rework the relationship between conference, the court, but just to sort of nudge the court. And one of the things that, you know, one of the things I didn't really pick up much of this in the book, but there's there's this tradition, where the Chief Justice gives his year end report on the state of the federal judiciary. And this was inaugurated in the mid 1970s, by Warren Burger, because burger wanted to give what was basically a State of the Union, he wanted to basically say, hey, Congress, here's what we need for next year, John Roberts, he still does the year end report. But actually, in 2009, he stopped asking for things. And I think that's a very, you know, sort of subtle, but telling reflection of the moment we're in where, you know, Congress ought to be like part of a conversation with the Supreme Court about its day to day operations. And yet, it just isn't anymore. So. So that's, you know, that's part of the puzzle here. And that, you know, the book is focused a bit more specifically on what the court has been doing over the last six years. But if we think about the court as an institution, and more holistically, my hope is that we're going to find a bunch of things where folks of any political stripe are actually going to agree that there are better ways to sort of define the relationship between the Supreme Court and the other institutions of government.

Tim Kowal  33:55 
Yeah. When you say that the Chief Justice a few years ago stopped asking for things from Congress. What sorts of things did those reports traditionally ask for more funding,

Stephen Vladeck  34:04 
more funding tweaks to jurisdictional statutes, right tweaks to substantive statutes to help lower courts changes to venue rules, changes to jurisdictional rules? I mean, it ran the gamut. And what does

Tim Kowal  34:17 
it suggest to you that the Chief Justice stopped asking for things? Does that send the signal that no, we're good here. Don't leave us alone?

Stephen Vladeck  34:24 
Yes. And I think this has been a very consistent theme of John Roberts tenure. I mean, you guys probably saw the letter he sent earlier this year to Senator Dick Durbin, in the middle of some of these ethics stories where you know, Durbin invited him to come testify before the Senate Judiciary Committee, and Roberts politely declined. But he said in his letter that if you were to accept the invitation that would raise I think the term he used was separation of powers, concerns and risks of infringing on judicial independence. I'll just say that, you know, Tim, not that long ago if the Chief Justice of the United States suggested that would raise separation of powers concerns for Were a member of the court to testify before Congress. I think people would have laughed at him. And now we take it very seriously.

Tim Kowal  35:06  
Yeah. Well, that's that's interesting. One of the things that we we've talked about that Jeff and I have talked about on this podcast are some of the separation of powers issues here in the in the California judiciary visa vie our legislature here, one specific example would be court reporters. In most other states, we've talked to appellate attorneys and other states, the the supreme court sets the rules of civil procedure, such as the provision for court reporters, whether and when court reporters are required in California Court Reporters are required. And if there's not, and it's set by the legislature, so the courts can't make any provision for them if there's not a legislative provision. And so there's a little bit more of a dependency of the court on the legislature. And so there's kind of, you know, please can you make some other avenue available if there's not a court reporter available? Because there's a there's a crisis, a shortage of court reporters, and we talked about is that healthy? Do we have this? You know, for years here in California, there's there's been a very strong court reporter lobby, who defeats these measures to legislative measures that would allow for electronic recording, which is now all the more poignant, because we have, you know, all this new zoom remote technology, all we have to do is to hit the record button. And we can have an instant oral record of all proceedings at no cost to the litigants. But because of these strong entrenched powers, we still have to have a person there with the stenographer machine taking taking verbatim simultaneous record. And I don't know, I guess that's that's just a point that came to mind after you mentioned about this that kind of give and take that there needs to be a relationship between the legislature and the courts, and it helps foster a kind of a system of checks and balances, so one can't run away on the other.

Stephen Vladeck  36:39 
Well, and if I may, I mean, Tim, I would say that, at least in the federal system, the US Supreme Court is already dependent upon Congress. It's just that Congress hasn't noticed. So right, the Supreme Court's budget is appropriated on an annual basis by Congress, the only thing that constitution would prevent Congress from messing with is it can't reduce the justices salaries. But if Congress zeroed out every other penny of the Supreme Court's budget, that'd be pretty, you know, cataclysmic it would not be unconstitutional. So the dependency already exists. It's just the Congress doesn't realize that it has this power to exert leverage over the court that it has historically exerted much more willingly. And I think part of the question is, how do we persuade Congress, and I don't mean, the current Congress. But I mean, like Congress as an institution, Republicans and Democrats are like that it's in the institution's interests to assert itself at the expense of the judiciary. And that's part of why I wrote the book, because I think we fall into this trap of thinking about the US Supreme Court as the sum total of its merits decisions, right? The court is Dobbs and Bruin and affirmative action. And the reality is, it's actually a heck of a lot more. And my gut instinct is that the more we talked about the course and institution, maybe the more we won't just split into our tribes, when we talk about the court and the more we can have, hopefully, a positive, maybe even bipartisan conversation about what works at the court, what doesn't work at the court and what Congress ought to be doing to fix it?

Tim Kowal  38:05 
Well, yeah. And I would agree with you that that the lack of good clear guidance from the Supreme Court on certain issues, a lack of written cogent reasoning on cases and if major policy decisions in our country are set by, you know, Fiat summary rulings on these things you mentioned, and we talked, alluded to what you covered in the beginning of your book about the heartbeat act, stay being affected on the shadow docket. And then you also go on to mention that that was in Texas, was at Texas or Alabama, I think with Texas, and then I think Alabama, and another state followed suit and said, Well, you know, we will do this, no, I'm sorry, I'm thinking of a different thing. I'm thinking of the Voting Rights Act, the redistricting map that was stayed by the court out of Alabama, and then two other courts, two other states kind of saw the writing on the wall. And even though there was not a not a precedential opinion by the Supreme Court, they took the cue from the shadow docket action and said, Okay, well, we know which way the Supreme Court is going on this. And so I think that that maybe speaks to your point, that the shadow docket is not just controlling these one off cases, it is indirectly at least setting precedent. Is that an example of what you mean by that? Yeah, I

Stephen Vladeck  39:11  
would say it's setting a precedent both indirectly and directly. So the Alabama and Louisiana redistricting cases are a pretty good example of indirect precedent where Tim lower courts are structuring their decisions based on what they view as tea leaves from the Supreme Court. But there are some direct precedents to I mean, the Supreme Court had a series of rulings in the spring of 2021, where it kept yelling at the ninth circuit for not blocking California and then different localities COVID restrictions based on the court's prior unsigned unexplained order, in a case called Southbay. Two and there's even there's one order in a case called Gateway City Church, where the court actually yells at the Ninth Circuit and says the decision this case was clearly dictated by our decision in South Bay to again a decision where there was no majority opinion so So, you know, we actually saw the court not just implicitly Tim treating these rulings as precedential, but actually explicitly chastising the ninth circuit for not following an unsigned unexplained orders of precedent. And to me 10 That just compounds the problem here, right? Because when you have the justice is hidden down unsigned, unexplained rulings that are producing immediate effects, if they're also producing precedential effects, then it becomes to me completely indefensible, that there's no rationale, because what is the precedent precedent presumably requires some explanation. How can you have a precedent set by, you know, an unexplained order?

Tim Kowal  40:35 
Yeah, I want to go back we eluded you alluded earlier to the issue of nationwide injunctions. And I wanted to ask you more specifically about whether that factors in maybe to the court institutional thinking on how it handles the shadow docket. You know, Jeff and I talked about I think, a year ago sometime last year, Sixth Circuit Chief Judge Sutton spoken out against these nationwide or universal injunctions in which a single federal judge issues an order purporting to block the federal government from enforcing a law or regulation, anywhere against everyone and judge Sutton had complained that these injunctions, quote have not been good for the rule of law, and, quote, the sooner they are confined to discrete settings, or eliminated root and branch, the better and quote, and I think I think his reasoning is probably similar to a lot of the reasons you talked about in your book, about the shadow docket, and most relevant to our conversation about the shadow DACA, Chief Judge Sutton had said, quote, all of this loads more and more carriage on the emergency dockets. Again, he's talking about these nationwide injunctions issued by district court judges, they load more and more carriage on the emergency dockets of the federal courts unnecessary feature of any hierarchical court system, as you mentioned earlier, Steve, but it's one design for occasional, not incessant demands for relief. And so he was talking about, again, what I alluded to earlier about, is there an increased pressure and demand on appellate courts dockets to resolve these these big nationwide universal relief requests. And I'm kind of making your answer answer the same question twice, because I, but are there maybe, maybe you maybe you answered or I asked it in the quantitative fashion, you know, and maybe there are not numerically more demands. But what about what about answering the question in terms of the gravity of the requests? Are there more? Is the docket comprised of more and more nationwide injunctions that just would require more? What would affect more of the policy of the nation?

Stephen Vladeck  42:33 
I think the short answer is, is relatively Yes, absolutely. No, in the sense that like, yes, there are more nationwide injunctions today than there were 10 years ago, and there are more emergency applications seeking stays of nationwide injunctions today than there were 10 years ago, this sort of the problem is that one, there's no obvious reason why a nationwide injunction changes the analysis for a say, from a more targeted injunction. If the government suffers irreparable harm, we don't tend to require the the irreparable harm to be nationwide, right. And so if the government suffered and reparable harm, even in being stopped by enforcing a policy against 1000 people, presumably, then that's going to be true, even if it's enforced against everybody. But the second part of it is, you know, the nationwide injunction story really is a story about challenges to federal policies, you could take out federal policies from the book, and there still be a book because, you know, there have been so many emergency applications about state policies, there have been emergency applications about, you know, actions by the federal government that did not have nationwide consequences. And so, you know, I guess I think that there is a phenomenon behind the rise of nationwide injunctions last few years, and I think it's an unfortunate one. I'm one of those who thinks that nationwide injunctions are both within the power of federal courts to issue but also issued way too often. So legal, but they ought to be more legal, but too common, I guess, is the is the critique. But the other thing to say is, if this really were about nationwide injunctions, guys, if only there was some mechanism the Supreme Court had where it could tell us that and it could say, hey, district courts stop issuing nationwide injunctions. Right. And so this goes back to the problem of a lack of explanation, which is, you know, historically the way the Supreme Court identifies problematic behavior by lower court judges, and seeks to reshape that behavior is by saying so without any explanation, right, we're left to be like, Oh, well, maybe it's about this, or maybe it's about that.

Tim Kowal  44:30 
Yeah. Yeah. And we've talked about, you know, the, the institutional problems and what solutions are could be in the institutions of the court. But yeah, maybe it goes broader into the legal cultural generally, US Attorneys are always looking for that, that big case. That's, that's we're gonna make a name for ourselves. We're gonna get a nationwide injunction and, you know, we're gonna go right up against the President of the United States and, and get get an order in joining the President. Well,

Stephen Vladeck  44:56 
but Tim, I think also, I mean, if I may, I mean, I think that there are some exits. Private Practice lawyers looking at this but the real if I might use a pejorative culprits of this phenomenon, our state attorneys general where we're what we've really seen in the last decade is efforts by concerted efforts by state attorneys general to use nationwide injunctions as a way of frustrating policies of presidents of the other party. And that was true of, you know, the Texas ag during the Obama administration. It was true of the California ag the Hawaii ag some other agencies during the Trump administration. It's true again of the Texas ag Well, the currently impeached Texas ag and other you know, Red State Ag is right now. And I think the problem is, is that what you have a combination of nationwide injunctions and increasingly capacious rules for state standing, including the Supreme Court just recently explaining why Missouri could challenge the student loan program that facilitates the ability of, you know, state's to find friendly district judges get nationwide relief. And all of a sudden, the if you're the president, Republican President, Democratic president, your ability to carry out your policy agenda depends upon emergency relief, it depends upon going to the Supreme Court and getting them to put this, you know, stay on hold or this injunction on hold.

Tim Kowal  46:13 
Yeah, yeah. Well, that raises another idea that maybe all of these doctrines, I think it's It just underscores what an important book this is on on the shadow docket, that we all start thinking about it in terms of of all of our judicial policies, is this going to further pressure on the on the shadow dockets and further incentivize the use arguable misuse of the shadow dockets? Or is it going to? Is this going to create a way to to alleviate or avoid those perverse incentives?

Stephen Vladeck  46:40 
And I guess my reaction there is, you know, I don't know, I don't pretend to have all the answers to what ought to happen. But I want us and by us, I mean, not just you know, folks like the three of us, but like, I want lawyers, non lawyers, like those who spend their time whether professionally or personally thinking about the courts and the court to have conversations that sound more like that, right. Like, you know, not just I'm angry because they got this case wrong, or I'm excited because they got this case. Right. But, you know, looking at the broader patterns of litigation, looking at the broader institutional behavior, and assessing the Supreme Court as an institution that way, as opposed to, you know, how many cases did they pissed me off about this year?

Tim Kowal  47:20 
Yeah. But I have to ask you this question, because this is one of my soapbox is about unpublished opinions here in California where the Court of Appeal will will issue a good reason to opinions but they're unpublished. You know, there's a disclaimer on publisher you can't cannot cite it to any California Court. And we've talked to Lindsay Lawton, an appellate attorney in Florida. When they when the court there affirms an opinion, it's always almost always a summary affirmance without any reasoning, which as an appellate attorney would just drive me bonkers. I wonder, I wonder if you have a comment on thought about and, you know, Federal Circuit Courts will will indicate certain opinions are not to be pub published, you can still say to him for persuasive authority, but they have no precedential value. And for that reason, those their memorandum disposition. So they're the reasoning is often truncated, so each issue only will get maybe a couple of sentences of rationale. And so for the for the attorneys who worked it up and wrote Law Review quality arguments on each of these issues to get it disposed of in a sentence or two is just greatly. dissatisfying. I wonder if you have any comments about, you know, you talked about how one of the problems with the shadow docket is that the essence of the judicial power is that you're not just getting yes or no binary answers affirmed or reversed, you're getting the reasoning, you're getting the legal analysis, historical constitutional analysis, and when you're deprived of all that, does that undermine? Or is that an arguable misuse of the judicial power?

Jeff Lewis  48:48 
Yeah, objection, that question is leading that compound.

Stephen Vladeck  48:53 
So I guess the short answer is yes and no. Right. I mean, I think it depends on what it's being used for. So summary affirmance. This to me are actually different from summary reversals. Right summary. affirmance is where the especially in a state that says a summary affirmance is treated as adopting the decision below which some states do, you know, means that like, practitioners know what to do with it, right. We know what it means when the Court has said were summarily affirmed in summary versus a harder because you don't always know like, Well, wait a second, what was the error? And that's why I think there's more pushback in those spaces, I guess, to take a step back, like there are going to be floodgates problems. I mean, right. So, you know, the book, even though I'm very critical of how much power Congress has given him, the Supreme Court has taken over sushi rari. You know, Tim, I don't think that the Supreme Court could have an all mandatory docket, it would be a disaster, right? They got, you know, even in the down years, they're getting 5000 applicate 5000 petitions a year, the justices are not out to decide 5000 cases. So there's no question that there has to be rationing. I think the debate is who's going to do the rationing pursuant to which criteria and what are going to be the consequences if you get rationed into the A summary pile. Right? And you know, those questions don't have single answers. But they're questions. They're debates we ought to be having. And you know, I think folks would be very sick. Whenever I tell folks the data on how few cases the court is actually deciding these days compared to as recently as 10 years ago, they're always surprised. You know, I, I guess it just there's a lot about the courts behavior, where even if we might not all agree on what the answers are, we might at least all agree that it raises questions. And that's really what I'm hoping to accomplish in this book is to is to arm people with both historical context and contemporary evidence that, you know, we are long overdue for a serious conversation about the health of the Supreme Court as an institution and about the sort of the nature of its docket. And I think that Biden Supreme Court Reform Commission totally blew the opportunity to have that conversation by focusing on all of like, the fancy or big picture, hot housing reform items such Exactly. And so like, you know, I want us to get in the weeds. I wanted to get in the mud, because I actually think that that's where both there are opportunities to build consensus. And I think that's where actually, there's also a lot of just sort of information that is out there that folks just don't know about the US Supreme Court and how it operates on a daily basis.

Tim Kowal  51:17 
Yeah, well, at a minimum, we practitioners need to know need to understand how the shadow docket works, so that we can take maximum advantage of it, or to or to avoid, there's that to its potential pitfalls that would befall our clients. So yep. But I completely agree that this is a conversation we need to have, I think you present some fascinating possible solutions for legislative solutions, judicial institutional solutions, and at a minimum, we should all start thinking and talking about them. So I thank you, Steve Vladek, for joining us to talk about your book The Shadow docket. We're going to include a link to that in the show notes so that our audience can pick that up. And Jeff, do we have anything else to cover today?

Jeff Lewis  51:56 
No, I don't think so. We do want to thank case tax for sponsoring the podcast each week. We include links the cases we discuss from case to case daily updated database of case law, statutes, regulations, codes, and more listeners of our podcast enjoy special discount on casetext basic research at casetaxt.com/calp That's casetext.com/calp.

Tim Kowal  52:15 
And if you have suggestions for future episodes or topics that we should discuss on the podcast, please email us at info at cow podcast.com. And on our upcoming episodes, look for more tips on how you can lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  52:29 
See you next time.

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