This is Democracy: Episode 239 – Supreme Court

[00:00:00] Intro: 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.

[00:00:25] Jeremi: Welcome to our new episode of This Is Democracy.

[00:00:29] This week we are talking with our colleague, friend, and frequent guest, uh, professor Steven Vladic, who has a brand new book, which, uh, I hope everyone is already reading The Shadow Docket, how the Supreme Court uses stealth rulings to amass power. And undermine the Republic. We are gonna talk today about how the Supreme Court really works and what we can do about it to make it more responsive to the needs of our democracy.

[00:00:58] Steve’s book is all about that. He is, as many of you know, uh, the holder of the Charles Allen Wright chair in federal courts at the University of Texas School of Law. When he was first on our podcast, he didn’t have that chair. So we, we take credit for his promotion to this. To this distinguished chair.

[00:01:15] Uh, he also publishes widely, uh, in the New York Times, Los Angeles Times Slate, M S N B C, various other places. Uh, he is the Supreme Court analyst for C n n. And, and, and most important I I’ve learned in recent years, not only from my friendship with Steve, but from the many students we’ve shared, that he’s also a, a wonderful, very devoted teacher to, uh, law school students and, and many others.

[00:01:39] So we’re, we’re very fortunate to have Steve on. Thank you for joining us this week, Steve.

[00:01:43] Stephen: It’s a real treat. Jeremy, thank you so much for, for having me and for all of your camaraderie and friendship, uh, across the years.

[00:01:51] Jeremi: Great to have you here. Uh, before we start with our discussion of Steve’s book in the Supreme Court, of course we have, uh, Mr.

[00:01:58] Jeremi: Zachary’s, uh, scene setting poem. What’s the title of your poem this week, Zachary? Well, it’s a long one.

[00:02:03] Zachary: I won’t believe you if you tell me only that you know the answer.

[00:02:08] Jeremi: Is this a comment on me? Perhaps? Do you

[00:02:12] Zachary: issue shadow dockets, uh,

[00:02:14] Jeremi: regularly? No, there’s no shadow docket in our house. Okay. Let’s hear your poem, Zachary.

[00:02:20] Zachary: So do not tell me that the world is flat for I have seen her curving off to space. Her human blues and sighing, blushing face those eyes so warm, they might eant a rat. So do not say that we can’t bear the truth. For we have seen the fabled clauses nude and standing clear and open to be viewed. Those living burping words will trump your Ruth.

[00:02:45] Zachary: So I will not be told that my doubts are lies or that there is no steely bitterness in your size. No cold and ghastly glare on page’s blank. What? I can’t know. I know not to be frank, nor can I learn how not to despise what I may not see before my

[00:03:04] Stephen: eyes. Mm-hmm. What’s your poem about Zachary? My poem I

[00:03:07] Jeremi: is

[00:03:08] Zachary: really an expression of exasperation, uh, that, that, that we are told to, to believe, and to continue to have faith in an institution like the Supreme Court, which at the same time, uh, puts on this smoke and mirrors to obscure the, the, the decisions that they actually make.

[00:03:24] Zachary: Um, and, and I think, I think it, it. Merits, uh, some discussion whether, whether that that reverence that we, that most of us as Americans, I think have for the institution is, is merited

[00:03:35] Jeremi: today. Yeah. I think you get at the core issues. Zachary, uh, Steve, your reaction.

[00:03:40] Stephen: Uh, I mean, I think, I think it really gets to something that, um, I think Jen Shala talked about a bit in, in her review of my book, which is, you know, the Supreme Court acting like pet, uh, uh, how, sort of how grownups treat petulant children, or maybe they’re the petulant children, right?

[00:03:55] Stephen: That, you know, things are true because I said so. Um, and how unsatisfying that is in a world in which we think principle justifications are part of how we rationalize our behavior. So, uh, I think it’s, it’s quite a proposed ary. So, so Steve,

[00:04:10] Jeremi: I was a little surprised by your book, which is fantastic. As I, as I told you offline, and I hope everyone listening will read it, um, and really read it.

[00:04:17] Jeremi: I mean, obviously we, we always want people to buy our books, but this is a book that you should buy and read. Um, but I was a little surprised because I know that, um, you are someone who has devoted your life to studying the Supreme Court and, and part of what. It seemed to me as you’re kind of unmasking the court and the ways in which the court is both political but also deceptive, uh, intentionally, uh, obfuscating many of the things it does.

[00:04:43] Jeremi: Um, first of all, is that a fair assessment of part of the argument? And, and why did you write this book? To make that argument?

[00:04:50] Stephen: Well, I mean, I think Jeremy, the, the, the, my principle goal in writing this book was to make the court more accessible, um, to folks who don’t spend as much time as you and I do, you know, watching it and thinking about it.

[00:05:05] Stephen: And part of what happens when you take an institution like the Supreme Court and try to make it more accessible is, you know, it’s warts and all. Um, and I think there’s a fair amount of. Behavior that those of us who are sort of, um, adept at thinking about and talking about the Supreme Court have come to accept as just the way the court operates.

[00:05:28] Stephen: That actually if you just present it neutrally and without the sort of the, the loaded context of the present moment seems kind of strange. Um, and maybe not normatively ideal from an institutional design perspective. So I really wanted the book to basically be like, here’s how the Supreme Court actually got to where it is today and here’s why the Supreme Court is so powerful.

[00:05:50] Stephen: And, you know, maybe some of that’s not so good, um, for the court, for the country, for all of

[00:05:56] Jeremi: us. Well, I mean, one of the many things I learned from your book, Steve, is that, uh, the process of certi, the ways in which the court decides which cases to hear is actually a relatively recent phenomenon, uh, attributed in part to, uh, Robert, uh, to, excuse me, to, uh, Pre former President Taft, who becomes Chief Justice Taft, uh, William Howard Taft, and, uh, his role in, in redefining the court in the 1920s.

[00:06:25] Jeremi: Uh, can you tell us more about that?

[00:06:27] Stephen: Yeah, Matt, this is why I, I, I mean this is one of my favorite chapters to write cause I sort of love Taft in a, in a love hate kind of way. So, you know, Taft really wanted to be Chief Justice more than he ever wanted to be president. Um, one, one of my favorite sort of anecdotes about Taft is that when he’s president in 1910, And the chief justice ship comes open.

[00:06:50] Stephen: You know, he breaks from tradition to elevate a then sitting justice, um, almost entirely because the guy he elevated Edward Douglas White was 63. Um, and by, I think by the time white’s confirmed, actually he’s 65. Um, and Tapped is thinking about the sort of the math and the possibility that 53 year old Taft might be able to succeed White as Chief Justice.

[00:07:12] Stephen: Um, but you know, Jeremy Taft’s vision of the Supreme Court. Was really about a court that was above the fray of ordinary judicial business. A court that was not spending all of its time resolving individual cases and individual appeals, but that could sit back and sort of hold forth and pontificate broadly on questions of constitutional law.

[00:07:37] Stephen: And he saw Sir Shura the, the rise of discretionary appeals cases the Supreme Court chooses to take as a critical. Font of that power as a critical means by which the court could really consolidate its authority, become more autonomous as an institution, and ultimately, you know, arrogate power from the other branches.

[00:08:00] Stephen: And I, I think, Jeremy, the, the story of the 20th century is that Taft won. Um, Congress acquiesces first with a little bit of misleading behavior, and then with, uh, then knowingly so that now today, the court has virtually plenary control over its docket in ways that directly re to the power exercises and its ability to sort of pick and choose cases.

[00:08:23] Stephen: Um, I

[00:08:23] Zachary: think that most of our listeners, uh, who have taken a government class, um, as I am doing right now, um, have a relatively basic understanding of the role that the Supreme Court, uh, plays in our democracy today. Uh, the various checks and balances that are supposedly in place. But how should we understand in a broader historical context, the role of a high court, uh, in a democracy like ours and, and its position, uh, in, in our institutions?

[00:08:49] Stephen: Yeah, I mean, Zachary, it’s, it’s, it’s a great question. I, I think the, the, the short version is that the Supreme Court was meant to be independent but not unaccountable. And, you know, sort of, that’s a tough line to walk, but it’s a line that Congress was supposed to walk. So, you know, throughout the 19th century we see Congress pulling all kinds of levers to keep the court from getting too far.

[00:09:14] Stephen: Out of kilter, um, Congress effectively cancels the Supreme Court’s entire 1802 sitting as a not very subtle message to the Federalists, um, to not mess with them, um, right Congress. Uh, forces the justices to go circuit writing, to literally travel across the country for as much as six months of the year.

[00:09:36] Stephen: Um, not because it had some remarkable value, but mostly to remind the court who was boss. And so, you know, Zachary, I think the, the, the, the, the balance that the Constitution tried to strike was a court that had the power to invalidate. What Congress did, but a Congress that had the power to exert at least some control over the justice’s behavior and into the nine, into the 19th century, into the 20th century.

[00:10:03] Stephen: I think that model largely held, um, and it’s really only over the last 35, 40 years, I, I think, not coincidentally. As Congress has polarized, as the separation of parties has increasingly outstripped the separation of powers that we’ve seen, that understanding and that relationship break down. I read

[00:10:23] Jeremi: your book Steve, though also to argue that members of the court, some of whom were still on the court, but those who have been on the court before, like William Douglas and others who you opened the book with, um, that, that they’ve also been somewhat.

[00:10:38] Jeremi: A combination of, let’s say clever but also deceptive in the way they have basically carved out a special place for themselves and used that for political purposes. Um, is, is that a fair reading and, and, and how would you explain that? Yeah.

[00:10:53] Stephen: Um, I, I think it’s very much a fair reading. I, I think the, the sort of the short version, Jeremy, is that the court has always been political.

[00:11:01] Stephen: Um, and, and I mean this is, I think this is a, this is something that I’ve, I’ve long since accepted that I have to teach. Um, it’s, it’s the, the tricky part is sort of high politics versus low politics, and I think the high politics of the court have very much been about institutional relationships and regulating how the court sort of interacts not in any one case.

[00:11:25] Stephen: But sort of across the mine run of its docket and outside of its docket, you know, with the other branches. And so every once in a while you get, you know, real outlier justices, William o Douglass being one of them who really pushed the envelope, um, which may then precipitate. A little bit of pushback and reform, but that, I mean, I, I, I really do think the story of the court for much of its history is actually a relatively healthy one from a separation of powers dynamic, even as you have very political actors acting politically.

[00:11:59] Stephen: And that of course then leads us to the question, which is, so why is the current moment. So different. Right. Why is the recent court’s behavior then? Um, not just the, the same story told with different actors. Um, I think that’s the challenge of the second part of the book, is to really put in the context what has changed recently.

[00:12:19] Stephen: I. So, so one

[00:12:21] Jeremi: of the things that struck me though, in, in building on what you just said is how explicitly partisan you see the court today and how you frame the shadow docket within that. I, I honestly have to say at certain moments I wanted to throw the book at the wall because it seemed as if. Uh, your story of the shadow, docket of the decisions that are made without explanation that don’t fit the model.

[00:12:45] Jeremi: We learn in government classes and high school and civics classes, the non merits court decisions, that in many ways you are arguing that they’re, they’re overwhelmingly tilted in one direction. And, and, and why is that?

[00:13:00] Stephen: I mean, I think that’s right, Jeremy. And, and I think that’s a problem at the very least of perception if not of bad faith.

[00:13:09] Stephen: I mean, I’m, I’m, I try very hard to not accuse the justices of bad faith at any point because I think you could end up in the same place with people who are really doing what they think is their best and, and I think what’s really. Remarkable and striking, um, or to, to borrow your phrase, you know, book throwing inducing, um, about the court’s recent behavior on the shadow docket is that all of the principled neutral explanations for why they have been so much more aggressive in granting certain kinds of emergency relief for why we’ve seen more interventions.

[00:13:46] Stephen: Earlier in cases with broader impacts that have not been explained. Um, all of the neutral explanations fall apart when you look at the whole dataset. And that’s a big part of why, you know, the book tries to comment it from the perspective it does. And if you look at the full dataset, it ends up that the only really, really persuasive explanation for a lot of what’s going on is, you know, Republicans winning and Democrats losing.

[00:14:13] Stephen: You know, that’s, I think how a lot of folks feel about the merits docket. But Jeremy, at least on the merits docket, there are two additional, uh, how do I say, uh, uh, qualifiers. The first is that, um, there are always a decent number of cases that produce what we call strange bedfellows. You write strange alignments in the opinions cause they look, they’re not exactly partisan actors, but second, Jeremy, even when they are, they’re writing opinion.

[00:14:37] Stephen: And you know, you and I and and Zachary and listeners may not agree with those opinions. We may not agree with the principles the justices are articulating in those opinions, but we probably agree that they are principles. Um, and I think that’s really what separates the, the unexplained unsigned orders from the merit docket, which is when the court’s doing nothing to persuade us.

[00:15:01] Stephen: That there is principle behind the decision making. That’s when they really stop looking like judges, and that’s where the partisan charge, I think, becomes the most serious. I have a

[00:15:13] Zachary: sort of two-part question. First of all, why do you think, um, in this moment we’ve seen such an increase in the use of the shadow docket?

[00:15:21] Zachary: Why has it become a sort of arbiter in, in many other spheres of politics, uh, than, than sort of basic, uh, judicial, uh, Uh, and, and jurisdictional questions. And then also, um, do you think that, uh, there’s a place, uh, for more regulation, uh, from Congress in, in, in fixing, uh, some of these problems and, and hopefully pushing the court to move beyond the use of the shadow docket as you describe it?

[00:15:47] Stephen: Yeah, I mean, the, the first one’s a, a harder question than the second. Um, with regard to like, why has this be, you know, why, why, why, why is this a useful thing? I mean, I write the. I think some of it is, is at least started as just inertia. Um, where, you know, the court just started getting these emergency applications from the Trump administration.

[00:16:10] Stephen: We saw a massive uptick in how often the federal government, the most common, most privileged party in the Supreme Court, um, tried to get the court to intervene. So right during the Bush and Obama presidencies to very different. Two term presidencies. The executive branch goes to the Supreme Court for emergency relief, a total of eight times in 16 years.

[00:16:32] Stephen: Then Trump comes along and goes 41 times in four years. So, you know, Zachary, I think part of it is that the, the court without necessarily consciously deciding to do it, just increasingly found through iterative behavior, um, that this was actually a relatively easy way to make. Policy to affect policy without committing any of the justices to particular principles without committing anything to writing that might bind the court, um, in dealing with the future administration or a case where the partisan lance was different, of course.

[00:17:09] Stephen: That, that, that’s the problem. Um, with regard to sort of the, the question about Congress, I mean, I, I think. You know, the book is a little weird on this deliberately. I think there are lots of things Congress could do to alleviate the shadow docket to sort of push the justices to behave better on the shadow docket.

[00:17:29] Stephen: But I mean, Zachary, this might sound strange to me. The most important reform isn’t any one specific reform, but just Congress reasserting even. A shred of institutional responsibility for the court and its docket. Um, and that can come in so many different shapes and sizes that I would just be over the moon if we got any of them.

[00:17:50] Stephen: So, you know, to me, part of the issue is that the shadow docket’s a problem, but it’s also a symptom of a broader disease. And the disease is congressional abdication of any meaningful, you know, oversight or checking function vis-a-vis the court. Yeah, I had

[00:18:05] Jeremi: a, I had a reading of this, uh, going carefully through your book.

[00:18:09] Jeremi: That was, it’s a related interpretation, but to me it’s, it’s the historian’s, um, insight, I guess, that power corrupts everyone and, and the. Court in our lifetimes has taken on this, this prestige and independence that, as you point out so well in the book, Steve, no other institution really has. Um, and, um, we shouldn’t be surprised then that it, that power is abused.

[00:18:36] Jeremi: And, and it seems to me that it requires more than Congress doing a little bit. It we’re at a point where congress needs to. Assert at the very least, that the court should not be issuing transformative rulings without explanation, at the very least. Uh, would you agree with that?

[00:18:55] Stephen: Um, so Jeremy, this is, I, I’m gonna give you a very annoying response, which is I get queasy about Congress telling the court.

[00:19:05] Stephen: How to format its decisions, right? And sort of saying you must write something. Um, because I think that’s, you know, potentially, I don’t know, crossing the very weird, but to me significant line between congress, legislating and Congress trying to exercise judicial power for itself. But I think Jeremy, the goal is laudable and it’s one Congress could achieve through lots of other mechanisms.

[00:19:30] Stephen: Um, you know, if Congress wanted to pull the lever, I mean, if, if I can just sort of take a half a step back, um, when, you know, when Chief Justice Roberts, in response to the invitation to testify about all of this ethics stuff, um, responded to Senator Durbin, that it would raise separation of power’s concerns, um, For the chief justice to appear before a congressional committee.

[00:19:52] Stephen: You know, I almost fell outta my chair because 30 years ago, 40 years ago, 50 years ago, no one would’ve ever thought that. And, and I think the sort of the, if, if I can sort of be, be a nerdy, you know, founding era sort of nerd for sec, I mean, this is Federalist 51, right? This is Madison talking about how ambition must be made to counteract ambition.

[00:20:14] Stephen: Um, for the checks and balances to work, and we’ve got lots of ambition on the court right now and no ambition from Congress, and that’s a big part of why we are where we are. And,

[00:20:23] Jeremi: and why do you think Roberts behaves that way? Because I, I agree with you a hundred percent, but I also believe that he is someone, and, and I think this comes through in your book, that actually cares about these issues in ways that would overlap with the, with, with your interpretation.

[00:20:36] Jeremi: So why does he act that way?

[00:20:39] Stephen: Um, you know, John Roberts, man, that guy is an enigma. Um, this is, I mean, I’m, I’m such a huge fan of Joan Biz’s book about him the Chief. Cause I think it gets at, you know, the sort of the push and pull of of John Roberts. Um, Jeremy, I think, you know, before he’s anything else as Chief Justice, he’s an institutionalist and that manifests itself sometimes in what appeared to be.

[00:21:04] Stephen: Diametrically opposite directions. So he’s dissenting with the three Democratic appointees when he thinks that the other conservatives are abusing the shadow docket. He did this in the SB eight case, the Texas Abortion Ban case. He did it in the Alabama redistricting case, um, and a handful of others. But then he’s turning around and saying, you know, but Congress.

[00:21:26] Stephen: We’re, we’re fine. Um, you know, his, his year end reports, I mean, the, the year end report on the federal judiciary was started by Warren Berger as a wishlist to Congress, and it’s John Roberts in 2009 who stopped asking Congress for anything. And so I think it’s that, like, yes, he cares about the institution, but he thinks that the institution is best suited by policing itself.

[00:21:50] Stephen: And that’s, you know, that’s where he and I part company, that’s where I think he, he loses the thread.

[00:21:55] Jeremi: But he’s a smart guy. We agree on that. And he has to recognize, as you point out so well in the book, in fact, I think you used this quote twice, the court is de-legitimizing itself that it’s, it’s failed efforts to police itself.

[00:22:09] Jeremi: Uh, and I think people would agree with that on both sides of the aisle, actually make the court. Far less powerful. So from an institutionalist point of view, wouldn’t some accountability actually help the court? I,

[00:22:19] Stephen: I guess, I mean, so I think so. Um, and I guess, you know, if, if he were here, um, and, and I’m sure he’s listening, um, you know, I think the Chief Justice might even say, um, that some accountability would help the court, but that, you know, he’s worried about a slippery slope that once you, you know, invite the wolf.

[00:22:38] Stephen: Into the, into the house. Um, you don’t know where that stops. Um, and you know, I don’t, I don’t disagree with that sentiment. I just think that that’s not a reason to oppose everything. Um, and you know, if, if we had, if, if there were more John Roberts on the court and fewer Samuel Alitos, the bottom lines of a lot of these cases might look very similar, but I think the overall behavior of the court would be institutionally healthier.

[00:23:04] Stephen: I. Uh,

[00:23:04] Jeremi: be before we move on to our question about what to do, which is always of course where we wanna close, what, how can we fix this? And it’s, it’s an area where your book is suggestive. But, you know, for, from my point of view, I always say this about books I like Steve. That’s where I would’ve wanted another chapter even more on that.

[00:23:18] Jeremi: But before we get to that, I. I, I do want to, uh, bring up Elena Kagan because she comes through, not surprisingly to me as a heroic figure in your book. She’s certainly the figure who seems to get the most, uh, positive attention in your book. Can you say a little bit about your, your, your perspective on her

[00:23:36] Stephen: role?

[00:23:37] Stephen: Sure. And, and I, I, I wish I had you with my publisher to argue for more chapters. Um, so the, I mean, I think what, what separates Justice Kagan from now the other? Five Democratic appointees with whom she has served. So, you know, Bryer Ginsburg, Sotomayor Jackson, uh, oh four i, I, I can’t count. Um, is, is that the, Her opinions have been the ones that have been most focused on the procedural abuse.

[00:24:09] Stephen: Um, so just take the SBA case as an example, right? That was the five four ruling in September, 2021, that let the six week abortion ban go into effect. Um, chief Justice Roberts writes a very institutionalist dissent that is not about the shadow docket specifically, but rather about SB eight. As an assault on the role of the courts.

[00:24:30] Stephen: Um, Sotomayor and Breyer both write very angry, you know, look what you’re doing to abortion dissents, and it’s Kagan. Who comes, who, who, who hits the procedural objection? It’s Kagan who, you know, for the first time, um, uses the shadow docket as a pejorative in criticizing him. The five Justices and the majority, and, and Jeremy, she comes back to that theme multiple times in the Alabama redistricting cases in February of 2022, um, in the Clean Water Act case in April of 2022.

[00:25:02] Stephen: And I, I think what that really gets at is that more than, um, Sotomayor more than more than Ginsburg, and at least to this point, more than Justice Jackson. I think she’s the institutionalist of the left. And so she’s the one who, you know, is sort of most offended by the procedural misas. Um, that is what’s going on in the shadow docket.

[00:25:26] Stephen: Um, and sort of most bothered by the notion that more than one conservative justice isn’t with her. And so that’s why I think she’s the one who stands out, not because, you know, if you look at voting patterns, the other justices are behaving. Inconsistently, but she’s the one who’s articulating on the problem, on the terms that I think could, ought to be articulated, which is why I think she, she does pretty well by the narrative.

[00:25:47] Stephen: And is, is

[00:25:48] Jeremi: there a possible way out of this mess building upon that, uh, and her role?

[00:25:54] Stephen: I, I think the answer is yes. And, and I mean, this is the, the one piece of good news. Um, you know, I actually think and, and time will test this thesis that we’re already actually seeing the court. Change at least some of its behavior and moderate, at least some of the worst excesses of the last six years.

[00:26:13] Stephen: Um, and I think actually folks are trying to know this. So there, there was this remarkable passage when Justice Alito publicly dissented. In April from the court’s stay of Judge Kaz Meek’s ruling in the Mytho Christone case. You know, he accused Kagan of hypocrisy, he accused soor of hypocrisy. He also accused Justice Barrett of hypocrisy.

[00:26:35] Stephen: Um, and, and I think what that’s reflecting is that if you look at the overall data set, again, this is why I think the book is, is a useful, you know, sort of resource if nothing else. Um, what you see is since October of 2021, justices Barrett and Kavanaugh have stopped voting with Thomas Alito and Gorsuch at least publicly, um, quite as often as they had been the previous year.

[00:26:57] Stephen: And you know, I, I think there are a couple of data points along the way that suggest that Barrett and Kavanaugh have softened. Their approach to emergency relief. Um, I, I think that’s reflected in a lot of the court’s behavior of this term. But Jeremy, what, what I take as the positive story there is like, that’s a reaction to one of two things.

[00:27:17] Stephen: It’s a reaction either to Justice Kagan, um, and her dissents in the SBA case and others, or it’s a reaction to some of the public pushback and the public criticism, um, suggesting that, you know, even if. You know, Alito and Thomas and Gorsuch are not gonna listen to any of the bad press. Um, maybe the median justices are and actually have some institutionalist sensibilities driving their behavior, at least in the less visible merits cases.

[00:27:46] Stephen: And, and I, I take that as a, a sort of a cautious and modest, you know, uh, uh, sign of potential optimism.

[00:27:54] Jeremi: Uh, that is the part of your book I like the most, and that is my bias as a historian, right? Which is, uh, to think that a lot of the jurisdiction arguments that are made or bullocks their rationalizations after the fact, and that in what, what often really happens is that the court.

[00:28:09] Jeremi: Is navigating political waters that involve a set of political commitments the justices have, but also a public perception and a recognition that their power more than any other branch is about public perception. And, and that at some level, and I see your book, Steve, is part of this, right? Uh, public opinion, public uh, activism will shape and force members of the court.

[00:28:32] Jeremi: To react. I mean, I think you’ve seen that already with different, uh, justices including a Texas justice right. Reacting to your, your criticisms in other contexts.

[00:28:40] Stephen: Correct. Yeah. I mean, I think that’s right. And so to me the, the moral there, um, is that we should not be, uh, You know, totally fatalistic about the court’s amenability to change, um, even in a context in which congress is not gonna pull the many, many levers that I think a candidate should.

[00:29:00] Stephen: Um, but Jeremy, I think, I think another part of that story, which is also I think pretty significant is we, and by this I actually mean you and me specifically, and our fellow academics, um, should be doing more to sort of. Educate not just our students, but the public at large, about the, the more technical sides of our institutions.

[00:29:23] Stephen: Um, because I think, you know what part of I wrote the book because I think that the more people understand what happens behind the curtain, the more they’re not gonna like it. Um, and I think that the more we are taking it upon ourselves to, you know, help folks understand whether they’re gonna agree with us or not.

[00:29:42] Stephen: Sort of the power dynamics and the behavioral dynamics that are shaping our contemporary institutions, maybe the more opportunities there are for consensus, or at least for some kind of, you know, across the aisle agreement about institutional health, if not about particular, you know, short-term policy goals.

[00:30:00] Stephen: And, and that’s where I really hope the, the books ticks the conversation about the court.

[00:30:05] Jeremi: So, so that’s my final question to you, and it’s a question that we, we pose every week, of course. Right? How does this, uh, deep analysis help us to think about future directions for our democracy? You, you’re very modest in the book, Steve.

[00:30:18] Jeremi: You mentioned the, uh, reform panel that was put together that you were a part of, I know. Um, and, um, There is obviously movement toward thinking about reforms, uh, through Congress and through other mechanisms. What, what are the, what are the top things you would push if you did write that extra chapter? If, if our mutual publisher lets you write that extra chapter, what are the, what are the few things you would emphasize?

[00:30:42] Stephen: Um, I, I, I actually think the extra chapter. Jeremy would be about ethics. Um, not, not as such, but as a microcosm of the broader problem where, you know, the sort of, the problem with the Justice Thomas stories that we keep seeing in the press is the absence of any arbiter of their, you know, accuracy of the validity of the charges, of the wrongfulness, of the conduct.

[00:31:08] Stephen: You know, we are never gonna get anywhere. As a country, if the only place to litigate whether the court and the justices is behaving correctly is the court of public opinion, because that’s just gonna be a feedback loop where everyone retreats to their camps. And so to me, the moral of the story and the place to really try to forge consensus and to think about the future horizon of reforms is a world in which we spend less time thinking about how to change who is on the court.

[00:31:40] Stephen: And for how long they’re on the court and more time focused on how to ensure that whoever’s on the court by dint of happenstance and quirkiness and actuarial tables being what they are, um, is looking over their shoulder. And is understanding that they’re just one of three branches and that the other branches have levers they can pull if they, if the court gets too far outta line.

[00:32:02] Stephen: I, I think the, the, the, the, the short version of why the Supreme Court today has gotten so far out of kilter is because the justices have no reason to look over their shoulder. And you know, having those reasons I think would actually not necessarily change the bottom lines that the justices are reaching in these cases, but impel much better behavior both on the court and off of it, you know, by these nine life tenured, unelected, um, jurors.

[00:32:31] Jeremi: It, it’s stunning that they could lose sight of some very basic ethic and ethical and integrity principles. But, but I, I think it makes sense what you say. I’m sure it’s, I’m sure it’s accurate. Zachary, you’ve been listening to this and, um, you also. Read and follow Steve’s work. Um, what do, uh, people of your generation, those who are watching these issues, what do you think of the court and do you see a future where the court plays a constructive role in your larger hopes as a generation for democratic reform and change?

[00:33:04] Jeremi: I, I think

[00:33:05] Zachary: we, we, we talked earlier about, uh, the reverence that many Americans feel for the court, uh, earned or not. And I think, uh, that this court in particular and this generation, the, the young generation, uh, that I include myself in, um, as, as Generation Z, uh, that. There’s a long way to go. Uh, the court has lost a lot of its legitimacy, and honestly, in the course of one decision, really, uh, the, the dec, the Dobbs decision to, to overturn Roe v.

[00:33:35] Zachary: Wade, and I think that, that, that the court has put itself in a position, uh, in which it, it, it needs to make the case. To the next generation of political leaders and the next generation of voters. Why what it does matters and, and why its work, uh, has an integral place in our democracy. Um, and if, if, if they’re not able to accomplish that, I think that these issues of, of legitimacy and, and public perception of the court are only gonna continue to.

[00:34:03] Jeremi: To get worse. And, and how do you think, Zachary, they should make their case? Clearly what Steve’s describing is not the way to do it. Issuing issuing opinions without explanation. The shadow docket is clearly not the way to do this. Steve has proven that. I think so. What do you think is the way they should do this?

[00:34:19] Zachary: I think it’s exactly what, what Professor Vladek was talking about. It’s, it’s thinking and, and speaking in institutional terms. Uh, Enough, enough about, uh, individual justice’s, uh, legal philosophies or, or honestly what seemed like contrived explanations for particular decisions, but instead in a broader argument about the role of the institution, uh, and the place of the institution in the lives of Americans and, and in our

[00:34:43] Jeremi: political discourse.

[00:34:44] Jeremi: Steve, last question. Are you optimistic that what Zachary’s describing is possible? Um,

[00:34:51] Stephen: I am hopeful that what Zachary’s describing is possible. Um, you know, a lot of it’s gonna depend Jeremy more on Zachary’s generation than yours and mine. Um, but, but, but I, but I think it starts with conversations like this one.

[00:35:06] Stephen: I mean, it starts with trying to get us all out of the mindset that, you know, the decisions are good or bad based upon who wins and who loses. And the court’s behavior is laudable or. Worthy of critique, depending upon who wins and who loses. Um, that I think we’ve, we’ve trapped ourselves into that discourse for way too long, and getting out of that trap, I think can only have.

[00:35:29] Stephen: Positive salutary consequences for lots of things, starting with all the things Zachary says. And, and

[00:35:36] Jeremi: I want to say, Steve, that, that your book is, uh, a, a wonderful and very effective, um, moment and avenue for taking us out of these unproductive. Of conversations. It’s not a partisan book at all. And it’s a book that’s descriptive and rich in its analysis and suggestive in important ways that do cross our, our normal battle lines.

[00:35:57] Jeremi: And, and I found it, uh, really inspiring in that way. And I hope that all of our listeners who I hope are all interested in the Supreme Court, uh, will read this book. Uh, congratulations Steve and, and thank you for joining us this week.

[00:36:10] Stephen: Oh, thank you so much for having me, Jeremy. It means, I mean, you, you are, you are the, the veteran expert when it comes to books that have an impact.

[00:36:17] Stephen: So if this, if I can follow your model, it’s a good day for me.

[00:36:22] Jeremi: That’s very kind of you, Steve Zachary, thank you for your, uh, inspiring poem as always. And thank you, most of all, to our loyal listeners for joining us for this week’s discussion of the Shadow Docket. Steve, uh, Steve Latics new book and the Supreme Court in general.

[00:36:40] Jeremi: Thank you for joining us.

[00:36:49] Outro: This podcast is produced by the Liberal Arts Its 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 Kini. Stay tuned for a new episode every week. You can find this is Democracy on Apple Podcasts. Spotify and Stitcher.

[00:37:08] Outro: See you next time.