This is Democracy: Episode 163 – Shadow Docket and Abortion

Yeah, this is Democracy, a podcast about the people of the United States. A podcast about citizenship about engaging with politics and the world around you. A podcast about educating yourself on today’s important issues and how to have a voice in what happens next. Welcome to our new episode of This is Democracy. This week’s episode is going to focus on a topic that has long been a topic of concern for scholars and close observers of american constitutional law and american democracy, but a topic that hasn’t received a lot of attention in the public until recently, especially in the last week uh with the controversy surrounding a texas law that largely restricts access to abortion and runs against many of the constitutional protections in roe versus wade. Uh The topic is the Shadow Docket and we’re joined by I think the scholar and public intellectual who has done the most to elucidate the Shadow docket in recent days, weeks and months. Uh This is my colleague and friend, professor Stephen Vladeck, Thanks for joining us steve. Of course, thanks for having me. Uh steve is the Charles allen right Chair in federal courts at the University of texas school of Law. He’s a nationally recognized, highly regarded expert on the federal courts, constitutional law, national security law and military justice. He’s argued before the Supreme Court, the texas Supreme Court, the various lower federal civilian and military courts and he’s testified before numerous branches of our federal agencies in Congress. Uh Most recently he gave testimony before the committee that’s investigating and thinking about the future of the Supreme Court. This is a congressional committee That Steve testified before that testimony is available online. That’s 26 pages of really thoughtful analysis about our topic. Today steve is also the co host together with our friend and colleague Professor bobby Chesney of a really wonderful podcast, National Security law and he’s CNN’s lead Supreme Court analyst as well as the author of numerous law review journals, case books and of course major articles in the popular press. He’s also the executive editor of the Just Security blog and a senior editor of the law fair blog. And in his free time now he’s going to be completing a book on the shadow docket, a book that will be out in a few short months, maybe even a little more than a year. But we’ll soon I was going to say, I think 24 is not my idea of a few short months, but here’s hoping well when when when starting a book, steve as you know, everything seems possible and fast and so you get into the middle of it. And uh but knowing you, I’m sure you’ll have it out for us very soon before we turn to our discussion with steve. We have of course, Zachary scene setting poem exactly what’s the title of your poem today? The right to choose. Well let’s hear it. The law is like a chocolate orange that splits with the sweat of Children’s hands into a million symmetrical pieces distributed unevenly across the living room, by the soft power of the puppy dog eyes, by the power of the tantrum or the shoe thrown sideways at a sibling or a pet. And when unpeeled and licked down, the law is tart. It is the sour, we run through orchards to pick off trees, the bitterness we chase down supermarket aisles to taste but and keep this in mind like the child that cradles it attentively, it has a tendency to melt a propensity to phase change in the middle of our merriment. It is the fascination we take out of our pocket maybe a couple days later, indistinguishable from the cold and manufactured wrapping paper. The treat that can no longer be unfolded or reshuffled or reimagined because it’s already chosen. It makes its decisions without our input. It reserves the right to choose. I like the endings accurate. And what is your poem about my poem is really about the ways in which uh the law defines society instead of society defining the law steve is that accurate. Um more often than we realize. And I think the you know, I know we’re going to spend some time later on talking about this current controversy over the texas abortion bill and I think it’s a really good example of of exactly what Zachary is getting at because you have a law that is designed not only to provoke this, you know, public debate about abortion, but a law that’s designed to create the very procedural traps that has made it impossible so far for the courts to actually rule on the validity of of of the of the abortion restrictions. So it is really very much the tail wagging the dog in a micro sense, in the way that Zachary’s referring to a much more macro level. And and we will definitely talk about that before. We do though. This is in that that space of the Shadow Docket where the Supreme Court is making unsigned decisions and um decisions that have huge effect without the kind of regulations We’re accustomed to, where we’re not getting a long set of opinions that we can read and chew on. What is the shadow docket Steve, how should we understand it? Yeah, I mean, the shadow docket is basically a sort of it’s a catch all term that was coined in 2015 by Chicago law professor will bode um basically to sort of define the negative space of everything in the Supreme Court does besides those big fancy merits decisions that, you know, I think we’re all used to encountering every May in june um you know, big decisions on the Second Amendment in Heller or gay marriage in Obergefell, where the Supreme Court is at the end of years of litigation, um you know, handing down this massive precedent setting decision and the Shadow Docket is basically everything that happens before then. Um and so most of that stuff is entirely anna died and there’s just nothing anyone ever cared about. We don’t get fired up because the Supreme Court gives a party, you know, an extra few days to file a brief or an extra 1000 words for its brief. We don’t care all that much about when the Supreme Court sets cases for argument. You know, we care a little more about which cases the Supreme Court takes in, which ones it doesn’t, But you know, the real uptick that Professor Baud was sort of touching on in 2015 and that has really blown up since then has been a whole bunch more of these orders, Jeremy um that are doing a lot more than just case management. And you know, the best examples are orders that are um altering the status quo in the lower courts at a very early stage in the litigation while the litigation works its way through. So a lower court issues an injunction that blocks say a controversial trump immigration policy. Well, the Supreme Court issues an order staying that injunction for the entire duration of the appeal, she might be three years. Um So for those three years, the policy goes into effect. Um A lower court refuses to block say California covid restrictions while the Supreme Court, you know, wants to block them. So the court reaches out and issues an emergency injunction blocking those restrictions again for however long it takes for litigation about them to actually reach the Supreme Court. And we’ve seen jeremy, an enormous uptick, not just and how many of these rulings were getting from the court each term, but how large their impacts are, how divisive they are, even among the justices. And I think finally, as we saw, you know, last Wednesday with the texas abortion case, um how much they’re finally starting to seep into public consciousness as well? So where does the power to issue these come from? Part of what I hear you saying, steve is this is just the natural role of the court of last appeal in a sense, right. But but it seems like it’s more than that also. Right. Yes. I mean, yes and no. I mean I think that the natural parts exactly right jeremy, that appellate courts in just about any common law system, at least I’m familiar with um have the power to you know, issue and what we call emergency or interim relief while the appeal takes its time to work its way up. Like on the on the theory that the Court can’t just drop everything and decide one crazy case at the time. Um The in the specific case of the court, I mean there’s a statute that expressly gives the Supreme Court the power to issue stays of lower court rulings pending appeal. There’s an even older statute called the All writs Act from which the court has derived the power to issue injunctions pending an appeal where the court directly blocks say California, covid restrictions. So as a pure exercise of statutory authority, it’s pretty well established. I think the the two big things that have changed really in the last five years is how many of these rulings were seeing where the court is changing the status quo on stays or injunctions pending appeal. Um and how broadly those rulings are affecting all of us, um whether it’s by allowing the trump administration to build the border wall, for example, a project that no court ever said was legal. It happened because the lower court decision blocking construction was stayed by the Supreme Court um or a ruling like the ruling from the Supreme Court last week, not blocking right texas is controversial abortion law, which has the effect of shuttering almost all abortion providers at least four women in their six week of pregnancy or later. So I think that the uptick is not in I mean, it’s in both degree and kind jeremy, but it’s sort of, it’s one where the court is exercising the power, it’s always had to a degree and in ways that we really haven’t seen it before accepting maybe incredibly isolated circumstances. What does it say about the character of the court we’ve seen recently, most most recently in the controversy over the selection of justice amy coney barrett the ways in which the Supreme Court can be sort of sucked into the petty political squabbles of the legislature. But we’ve also seen how it can be almost a monarchical, almost royal institution in its uh everlasting sort of never changing nature. What does this Shadow Docket say about the future of the court? You know, in the abstract, I think the Shadow Docket doesn’t tell us all that much. I think the trends that we’re talking about Zachary really do suggest, do you sort of, reinforce all of, I think the most unfortunate and conspiratorial narratives About the court. Um let me just give you one example. Right, so if we’re just talking about this one small slice of shadow docket rulings about stays and injunctions about emergency relief. Um so so far this term, there have been 29 um rulings respecting stays or injunctions From which at least three justices publicly dissented. Um Last time there were 14, the term before that, there were 11. The term before that there were five. Um So, you know, the court itself is showing a lot more public divisiveness in this context, but more than that, guys, the divisiveness is purely, it is strictly, it is homogeneous lee ideological, where in every single one of these cases, the dissents are all coming from one side of the court or the other. You know, we we hear sometimes about the strange bedfellows that you sometimes see on the merits Docket, where you might get an opinion where Justice, thomas and justice Sotomayor are on the same side, not here. And I think that, you know, the there’s a whole sort of lot, there’s a lot to be said about why this is happening, where it’s coming from, for those who are cynical about the court as an institution, I think a lot of what we’re seeing does nothing to allay those suspicions. Well, and I know Steve You’re not a cynic or not not 100% a cynic at least. So how should we understand this in a way that doesn’t fall into that seemingly obvious, conspiratorial partisan way of viewing it? Well, I mean, I do think jeremy that that even the benign explanation for this reflects a pretty significant and growing disconnect between the lower courts. Um and the Supreme Court, right, Where if the lower courts were reading the tea leaves from the Supreme Court correctly, there ought not to be need for so many parties to be going to the Supreme Court for emergency relief, because the lower courts should be, you know, issuing rulings at the Supreme Court is happy with. Um And so even in the best case, right, the best explanation is that there’s just some fundamental sets of misunderstandings and and and divergences between how the Supreme Court understands what it should be doing in this case is how the lower courts do, and even that narrative, I think is still fairly critical of the Supreme Court because the court has done so little to explain itself in these cases, um the court has not, you know, sort suggested, for example that it’s changed and if it’s standards, many of these orders, even the ones changing the status quo come with no explanation. Um So I guess, you know, even the most, you know, sort of um optimistic neutral principle narrative that explains this uptick is one in which the Supreme Court is increasingly out of step with the lower courts. Um The Supreme Court by right is going to win those debates. Um but but I think, you know, we’d all be better off if they told us a little more often why. And what I’m puzzled by steve is, as historians, we’ve always said that the power of the court comes from the respect it has right, I mean, they actually have very few methods for enforcing um their their rulings and unless the public is willing to go along and other institutions, right? And so there has to be a view of public legitimacy. There has to be a perception, even if I don’t like the way the court has ruled that at least I know they’re trying to do the right thing. This seems to shatter that does it not. Yeah, I mean, you know, jeremy, I think again, it goes back to, you know, where you stand is so often the function of where you sit. Um and I think that for those who have already been cynical about the court, there’s nothing happening on the shadow docket to make that cynicism any any, you know, any less? Um right there, there’s just nothing that’s going to convince them that this isn’t fulfilling that narrative. Um to me, you know, I think the hard question is to what extent do any of the justices to the right of chief justice roberts actually care that these decisions and that a lot of the course of conduct more broadly in recent years has really eroded in the eyes of many um the course legitimacy because I look at rulings like, you know, once in its ruling in the texas abortion case, where it would have been, I think very easy for someone like Justice Kavanaugh to join chief justice roberts who dissented right? She says roberts, who is no fan of rower Casey was nevertheless of the view that the texas law should be blocked while the litigation proceeds. Um and it seems to me that the conservatives, you know, the justices to the chiefs right either aren’t aware of how negatively the court is increasingly being viewed by, you know, especially folks on the left or they are aware and just are are doing this anyway. And so uh you know, the court’s legitimacy is one of those things where it’s really hard to quantify, but you just have this intuitive sense that the more the court acts in this respect? Um the more it’s going to erode its legitimacy at least with particular segments of the population? And the question becomes to the justices themselves actually care. And do you think this question takes us into the abortion case? Do you think that really what’s driving this or the policy preferences rather than the legal judgements? Of course, yes, and and and and the sort of the, you know, the I don’t want to get into the technical weeds, but I think that’s reflected jeremy in ways in which the justices are twisting what used to be the sort of procedural constraints on emergency relief. Um, where, you know, the sort of the the lawyers would say, right that whether a party is entitled to emergency relief from an appellate court, while the case is working its way through, is not just a question of whether they’re going to win right? If that’s all we cared about, we would just we wouldn’t have this long convoluted litigation process. It’s also supposed to take into account, you know, what harm is caused by ruling for them now versus not ruling for them now is supposed to take into account what harm is caused to the other party by ruling for them now is supposed to take into account the public interest. And so, I think jeremy part of what’s happening is that for better or for worse, all of these sort of more atmospheric or secondary or, you know, societal implications have fallen out of the court’s analysis, so that these are basically just merits decisions dressed in procedural garb. And in that universe, it’s not surprising that a 6 to 3 conservative majority is going to hand down, you know, orders that have the effect of blocking policies in blue States, not blocking policies in red states, blocking policies from democratic presidents and not blocking policies from republican ones. How indicative do you think this recent ruling is for how the court would rule on the merits case? Uh, in terms of the texas abortion law? Yeah. You know, it’s it’s a good question. The texas abortion law is so procedurally dense and complicated by design that I think it’s it’s hard to read, it’s hard to read any conclusiveness into what the court is going to do on the merits of the law with what they did Wednesday night. I mean, the the procedural difficulties that the five justices in the majority invoked in their cryptic paragraph and a half of reasoning for why they weren’t going to intervene. Um, you know, I can tell a story about why those actually, really our difficulties. Um, and why, you know, a principled jurist could look at those difficulties and say, even if I agree that the abortion ban is unconstitutional, I still don’t think I can issue this particular relief at this stage. And then if all if this, if we look at this order in the abstract, I think that would be the conversation to have the problem as justice Kagan points out in her dissent. And I really think Kagan’s descent is the real, you know, barnburner of the four dissents. Um the problems that the court’s been inconsistent on this. And so, you know, even if in the abstract, these procedural concerns might augur against emergency relief. The court has brushed aside even more serious procedural concerns to grant emergency relief in like religious liberty cases, for example. Um there’s an especially um controversial order the court issued in april blocking California’s restrictions on in home gatherings. Another one where the chief justice dissented. And so it was the same 5 to 4 lineup where the court ran roughshod over what was supposed to be a procedural bar on issuing such relief, which was you’re only supposed to able to issue that kind of relief based on clear existing law and the court made new law to strike down California’s order. So, you know, I think the problem is that it’s hard to take the court seriously that this is purely a procedural rule in given that procedure hasn’t stopped them before. And that’s why so many people look at Wednesday’s ruling and se ro is doomed. Um but even if you don’t, I mean, even if you really are willing to take it that seriously, there’s still the obvious and inexorable problem, guys, which is here in texas, ro may not be doomed, but you can’t get an abortion right now after the sixth week of pregnancy and so on the ground here in texas. The difference between the Supreme Court not intervening for procedural reasons and the court signaling that row is dead is the distinction without a difference, at least for the moment. And and and as a historian, not a lawyer, I don’t understand how they could let that happen because roe v wade is still the law of the land, right? It is. I mean, this goes back to sort of process versus substance, right? Jeremy. I mean, I think the lawyers would be the first to tell you that procedural limits on the courts matter. That procedural limits are actually part of how we ensure that courts are courts and not just politicians. And again, this is why I think the real criticism of Wednesday’s order depends upon holding it up against the courts. Other recent decisions. Um where in a universe where this was the only major shadow docket ruling we’ve gotten from the Supreme Court in years. I actually think it would be perfectly defensible, but in the universe in which the court has shown no compunction about running right over political procedural obstacles. Um It’s a Freudian slip. Right, right? Um in that universe, it’s just it’s so hard to understand like I guess everyone trying to say is like I could tell a story in the abstract about why those procedural concerns were reason enough to not grant relief. I just can’t tell that story after what we’ve seen over and over and over again over the last two and three years, right? There also is the point that justice Sotomayor made and her uh, also barn burning descent. Maybe maybe the Kagan one is more of a barn burning descent for the procedural issues on the inconsistencies. But this point about vigilantism and how the texas law would seem to me to now open the door for new york or California to say, okay, you can file civil suits against people who own guns, for example. Right. Well, so this I mean, this of course, is the question, do we honestly believe that the same five justices would have stood on their hands, um, and hid behind, you know, procedural questions, not even procedural obstacles if this were not texas an abortion, but this were California and guns um, or new york and speech and, and you know, I have a hard time believing that those five justices would have found themselves hamstrung by these procedural considerations if it were right they cared about. Um, and that’s relevant for two reasons. One, right? I think it is an ominous portent for the future of row, um, which, you know, is on the court’s docket already this term, there’s a Mississippi case with a 15 week band that the court set to hear later this fall, but but to I think that jeremy is where all the cynicism is, which is, you know, if you believe that the court would have if you believe the only reason why the court, you know, hid behind these procedural uncertainties is because it was a red state and abortion. What does that say about the court is an institution? Right? Right. And and on the vigilantism point do you how do you read justice? Sotomayor on that? Right? The argument being and again, this resonates with a historian that we have courts so that we don’t encourage posses to go out and intimidate people. Yeah, I mean, she’s obviously right. I guess the one thing I would say and this is not a critique of justice sonia cinema. I mean, I love her descent. I mean, the first line of her dissent, we should be teaching for years about how the majority buried its hands. His head’s in my sand. Um, here’s the tricky part for me. I am not averse jeremy in the abstract to what in calmer times we call private attorneys general, um, which is the notion that governments can enlist the citizenry to help enforce laws. Um, I’d prefer it not be laws that are unconstitutional and designed to chill women into not exercising a constitutional rights. But I actually think it’s hard to explain why if the abortion ban here is constitutional. The private enforcement mechanism by itself is a problem, right? There they go together is what I’m saying. It’s not the vigilantism by itself, jeremy that drives me crazy is that the state is arming vigilantes while absent in itself and that’s where this departs from the private attorney general model, we don’t usually say, hey, we’re delegating our power to enforce fraud laws to private citizens and we’re getting out of the business. Um, and the reason why texas did it is so incredibly cynical, which is because texas, you know, the people who wrote this bill know the ins and outs of federal courts doctrine and know that there is this decision by the on bunk, the full fifth Circuit Court of Appeals from 2000 and one that says that if the state has no role in enforcement, then you can’t sue the state when the law they passed is unconstitutional. Um, and that’s the trap here, right? The by absent in the state from enforcement. It’s not just that you’re arming, that you’re turning, you know, everyday people into an anti abortions, Dawsey, it’s that you’re also making it impossible for the providers of abortions to bring pre enforcement challenges because there’s no one for them to sue. I’m gonna ask a question now that that will show that I’m not a legal scholar in the way you are steve to me that I am bound. Decision seems ludicrous because the state could not tomorrow say that, okay, we’re not going to enforce slavery, but we’re going to look the other way, if you enslave people, right, that would clearly be unconstitutional. Yes. Although although jeremy at the risk of being a nerd, that would be in constant, that’s actually an easy case because slavery is one of the only pro indeed, it’s the only still on the books constitutional prohibition of private conduct. Um, okay, so let’s make it pedophilia or something. I mean, we can we can find a variety of horrible things. I’m just playing a law professor. No, no, and that’s very helpful actually. But so how can how can how can our common law system move forward, operating under those assumptions? This is this is the problem. And for as onerous as the anti abortion part of the bill is I actually think the real story here is the procedural rube Goldberg contraption because if this flies, if this precedent holds, then we have completely restructured in a horrifying way our legal system, um, where constitutional rights are only as good as our state’s legislature wants them to be. Um, and in that universe, it’s not hard to imagine Red states going very far in one direction. Blue states going very far in the other. And all of a sudden we have two countries that don’t look at all like each other and you know, this is where, so I think chief Justice roberts is already there. I mean, I think he was signaling quite strongly in his dissent on Wednesday night that he has serious problems with this procedural scheme. I think the big question here is is he going to find another justice on the right to agree with him because I think the real way out of this mess, although it’s going to be too late to help too many women in texas who are going to lose their right to an abortion or at least to a legal abortion. I think the real way out of this message for the court to say actually states, you can’t run and hide like that. Um and you know, if you’re going to pass a law that is vulnerable to constitutional challenge, you got to show up and defend it. Right. Right. And so that’s what I was gonna ask you next steve, where do we go from here? You think that’s the likely pathway of robert’s finding cavanaugh or Gorsuch or someone to join him on this maybe, although I would have hoped that that would have already happened on Wednesday. You know, I don’t know if it’s going to be this law jeremy or if it’s going to be a law in some other state. Um I mean, florida has already announced that it’s going to try to model this legislation. Um You know, it’s possible that the texas Supreme Court actually comes to the rescue. Um and and, you know, the the texas Supreme Court, of course has the ultimate authority to interpret the texas constitution. Um The texas constitution, unlike the federal constitution has an explicit access to courts provisions. Um and so it’s possible that an argument can be made, that SB eight can be struck down simply on the ground that it interferes with access to courts without getting into any of the abortion um um charged this. But I mean, the problem is jeremy that no matter what happens, it’s all going to take a while and you know, this is why, and this is where the Shadow Docket looms large where the Supreme Court had a chance to take the pressure off of that litigation. Um right by freezing SB Eight by saying, guys, this is a mess, we want to give you some time to sort it out, but we’re not gonna let you just take away access to abortions in the nation’s second largest state while you’re doing it. And that’s where, you know, doctrine aside, Wednesday’s decision is so disappointing because it basically says, you know, maybe when all is said and done this law is going to be unconstitutional, both procedurally and substantively, but we’re not going to block it now, which means it’s going to deprive hundreds maybe by the time has done thousands of women um of the abortion that we said they have a constitutional right to pursue. It seemed to me to to my reading of your testimony that you gave to the committee investigating and thinking about the future of the Supreme Court, that one of the necessary responses to the Shadow docket is for legislative action and for electoral election right to elect representatives who will actually take this seriously as a problem and do something about it, which actually seems like a more democratic solution, right? Oh, absolutely. But but I would say what, but I would love jeremy to put some meat on the does something about it bone. Um because I think one of the problems here is that the, you know, the courts have enabled for a very long time to um so so many different legislative initiatives to make it harder for us to enforce our constitutional rights. And the legislation I would like to see is legislation that makes it easier for us to enforce our constitutional rights. Um You know, you can you can fix what to my mind are a lot of the problems with the Shadow Docket without touching the Supreme Court’s jurisdiction. Um as as I think so many, you know, reactionary folks want to do, you can just take pressure off the docket, you can, you know, provide for more expedited merits appeals in the cases where it looks like the court is interested, you can make it, you know, you can clear away some of these procedural obstacles that are tripping up courts at the early stages of some of this location. And it’s just, you know, I had thought that we were heading toward that conversation, jeremy last summer after the George Floyd protests and the reactions there too. And the, you know, the national conversation, it seemed like we were starting to have about government accountability. Um and the fact that we can’t even finish that conversation, I think it’s just, you know, the most depressing and disillusioning part of all of this to me, which is, you know, we should be able to all agree that it’s vitally important to have some mechanism for challenging state laws that take away clear constitutional rights, even if we don’t like them. When was the last time steve that we seriously rethought these questions really addressed them? I mean, not really in our lifetimes, Jeremy, um, you know, Congress last said anything meaningful about the Supreme Court’s jurisdiction in 1988. Um, so, you know, 33 years ago, um, Congress lasted anything meaningful about claims against the federal government in this space, really about the same time. And you can go back to 1974. But I don’t think Congress has had this kind of structural conversation about government accountability since right after World War Two, um, when it passes the administrative procedure act, when it passes the Federal tort claims Act, When it, you know, for the first time, really trying to think through comprehensively how we’re going to ensure that constitutional rights are protected in this country. And, you know, I mean, Jeremy, that’s 75 years ago now, and this is a very different supreme court today. I was thinking about just that that that it’s been 75 years since I think we, as historians could point to a moment when this was essentially important discussion. And frankly, and frankly, jeremy, it’s been even longer since Congress really thought carefully about states infringing on constitutional rights. You know, the landmark statute that really sort of enlists the federal courts in pushing back against state constitutional violations, um, is what we today shorthanded section 1983 which was enacted in 18 71. And, you know, Congress has done some little things here and there since then. But I mean, one of the points that I tried to make both to the Supreme Court Reform Commission and to Congress directly is, you know, yes, the Supreme Court keeps handing down these terrible anti accountability in many respects, anti democratic decisions, but you’re not doing anything to stop them. And and, you know, the reaction is, well, we can’t do anything. And, you know, the answer is, well, yes, you can. I mean, maybe you can’t take away all the court’s jurisdiction. Like I do believe there are limits on Congress’s power to strip the court’s jurisdiction. But the notion that it’s that or nothing um is superficial to the point of absurdity. Right? All right. And one of the points of our podcast each week is of course, that what we take for granted today reflects an evolving history and and over time, this issue has loomed larger and larger and it’s not built into the necessary fabric of how the Supreme Court operates, this can be reversed or redesigned. That’s right. And frankly, and I’m you know, I am often I’ve been as you as you generously said at the top, I’ve been one of the leading voices, leading critics of the sort of the rise the shadow docket, which means I’m also a target for those who would defend it. And they usually caricature the critiques right? That I just don’t like, I don’t like the results of the court is reaching or I’m just mad that they’re not, you know, sort of doing things more in a particularly more procedural way, you know, or that I don’t like an emergency docket at all. Right. And these are all just caricatures. I mean the reality is every court needs an emergency dock it um but you know, just jeremy a brief aside on the historical point Into the 1980s, the way the court handled emergencies was individual justices decided them in chambers, justices would have oral argument in their chambers, they would issue opinions in their own name just as themselves and that would be the end of it. And that had multiple virtues won, the party’s got to be heard um to anything that a circuit justice did could be overruled by the full court. Right, So it had limited presidential effect. Um and three it really sort of got the court thinking about what is the difference between an emergency and a non emergency where the circuit justice if he had time was encouraged to kick the case to the merits dock it to the full court. Um, and it’s only really since the 19 seventies, really, the mid 19 eighties, that that practice has fallen by the wayside and that, you know, the full court now handles just about all contentious emergency applications with less process, then they were receiving in the good old days of being handled by the individual circuit justice and chambers. Yeah, I mean, it seems arbitrary in a certain way, right? If you happen to get a lido versus Kagan depending on which which jurisdiction. That’s right. Although I think in the old days, you know, the justices were instructed and tried very hard with one exception to follow the notion that they weren’t supposed to rule, how they would rule, they were supposed to rule how they thought the court would rule. Um, and this of course leads Thurgood marshall in the cambodia bombing case in 1973 to side with the government right to side with the next administration on the cambodia bombing. Not because it’s what he wanted, but because he thought it’s what the majority of the court would want. Um, and I think, you know, it was largely because Justice William O Douglas would so often just defy the rest of the court on this stuff that we saw this move towards centralization of consolidation. Um, but you know, jeremy, there are no Douglas is on the court right now and of course, he was the longest serving justice, right? So he was long asserted and by the end of his career, he was not necessarily um keeping up with the relevant doctrinal limits on his power. I mean like, you know, there’s a story you can tell about why the court reacted the way it did in the late seventies and eighties, but I just think it reacted too far in the other direction. Yes, so steve for our closing question, we always like to take all the information that you’ve given us so much here and really think about what it is that our listeners should pay attention to going forward and how they can make a difference if if our listeners share your concerns about the Shadow Doctor, I hope they do. Uh and if they want to be well informed and they want to be a part of the discussion and make this more of an issue as, I think it should be that we pay attention to other than reading your, your work, which they all should do. What are other suggestions you have. Yeah, I mean, I think, you know, this is a, this is a good place where I think just sort of staying on top of developments is very important, staying informed. Um you know, one of my projects has been to really push the Supreme Court Press Corps to pay a lot more attention to the Shadow docket, you know, and I think whether because of me are just because events have overtaken it. I think they’re starting to but you know, I think it’s incumbent upon us also, you know, those of us who interact with our elected representatives talking to them about it, making sure they understand what’s going on. Um you know, public education dramatic is so much of a problem here and trying to sort of point out that like there’s a difference between not liking what the Supreme Court is ruling and not liking how the Supreme Court is doing it. Um and I think that distinction has gotten lost as so many other nuance distinctions having contemporary discourse. But if I could besiege listeners to do one thing, it’s just to have an appreciation that those are two very different questions and those are two very different critiques, right? So don’t just judge the outcome. There are plenty of good reasons to be angry about where the court stood on Wednesday’s decision. But what what I think you’re saying, steve is also paid close attention to how they how they got to that shadow Docket decision on That’s right. I mean, and just a good counter example for me, jeremy is the week before um the abortion decision, we had to high profile Shadow Docket rulings. We had the court rejecting the biden administration’s request to stay a lower court decision that had ordered the administration to reinstitute the remain in Mexico asylum policy which came with one sentence of explanation. Um and we had the the granting of the stay the vacating of this day in this eviction moratorium case um which came with eight pages of explanation. Um you know, I I would not have come out the way the court did in the eviction moratorium case, but I have no procedural objections to what they did right. They had an emergency, they took the case, they heard, they took briefs, they wrote an eight page opinion explaining why they thought the applicants had made out their case for relief. Like that’s how it’s supposed to go. Um And there’s just you know that that is the first example I can think of where the court actually think handled a shadow doctor case. Exactly the right way I think is, you know, further proof that this is both incredibly complicated and incredibly nuanced, but also incredibly important. Well, and this echoes what you’ve been saying in many forms and what I’ve seen others say, which is one of the real issues here is getting the court to explain its decisions at the very least. So they don’t appear arbitrary and indeed and so that and so that you and I and you know, in a factory and all your listeners can read the decisions for ourselves right and not be left to speculate as to why the justices have done thing a when they didn’t do things be two weeks ago? Exactly. Exactly exactly. What do you think? Do you think that young people like yourself who care about substantive issues also are interested in the Supreme Court and the Supreme Court is always fascinating and good and bad ways. Is the shadow docket something that’s coming onto people’s radar screens? And do you think it’s a topic that young people could be motivated to pay more attention to? I think young people are are definitely acutely aware of the undemocratic nature of the Supreme Court. Now, that’s not necessarily a bad thing. Obviously it’s implicit in the structure of the court today. I think that young people are also though much more inclined to think about judicial reform. Uh I think it’s particularly telling that when myself and my peers learn about our legal system for the first time, often our first reaction is not, this is how it should be, this is how this, this is what makes the most sense, but we need to change this. Um And at the very least I think we’re finally starting to question um the sort of basic assumptions we’ve always had about our legal system while at the same time making sure that we be abide by those warms and and and and and holding people to the legal standards that they need to be helped write in a certain way you want to before the rule of law, but not always support the way the rule of law is executed by and and we have to be able to do both. Right. Right. Well I think this discussion has helped us to think about how we can do both. And I want to thank you steve in particular steve Vladeck, I think the person doing the best work on this topic writing extensively. Please look for his his various articles and soon to be published book. We’re promoting it a little early but that’s okay. Steve, thank you so much for sharing your time with us today. Thank you guys for having me. I mean this is this is exactly what I’m hoping to accomplish and Zachary. Thank you for your poem and for your insights and thank you most of all to our listeners for joining us for this week of this is Democracy. Yeah. Yeah. Mhm. This podcast is produced by the liberal Arts I. T. S. Development studio and the College of Liberal Arts at the University of texas at Austin. The music in this episode was written and recorded by Harris Komotini. Stay tuned for a new episode every week you can find this is Democracy on Apple podcasts, Spotify and stitcher. See you next