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The Law Dork Q&A with The Shadow Docket author Steve Vladeck
Why a book on the shadow docket? "Because there hasn't been one before." Why the SCOTUS shadow docket matters, and when everything changed.
Over recent years, if you follow the decisions of the U.S. Supreme Court at all, you’ve been hearing about the shadow docket. From the late-night orders allowing the Trump administration to carry out federal executions to the wait for news about Texas’s S.B. 8 vigilante abortion restrictions to last month’s mifepristone order, the shadow docket has been unavoidable.
These shadow docket orders are reached without full briefing or oral argument and often issued with no explanation or public vote count. This has led to criticism of many of the orders and, more broadly, on the process underlying them. As criticism of the shadow docket has increased, some of the justices on the right — most notably, Justice Sam Alito — have decried the criticism.
If you’ve followed these developments on Twitter, you’ve probably seen me tweeting with Steve Vladeck, a professor at University of Texas at Austin School of Law, about the filings and orders over time.
Well, as I’ve been starting up Law Dork, Steve wrote a book.
Vladeck’s book, The Shadow Docket, is coming out on Tuesday. And though University of Chicago Law School professor Will Baude came up with the term, it’s Vladeck who’s hoping to bring the story of the shadow docket to a mainstream audience. It’s an important book for people who care about the Supreme Court to read to understand both what the court is doing today, how it got there, and when everything changed.
I talked with Steve recently about the book — particularly about how understanding what has happened at court regarding marriage equality and in implementing the modern death penalty is necessary to understanding the shadow docket.
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LAW DORK: Obviously, this is a topic that you and I have been engaged in on Twitter for, it feels like nearly a decade now. I guess just to start, why are we getting a book on the shadow docket?
STEVE VLADECK: Because there hasn't been one before.
LAW DORK: Okay, next question.
VLADECK: That's not for nothing. I think there's a story that is not unique to the shadow docket, which is that there's a whole lot of stuff about the Supreme Court that, at least traditionally, has not been central to how the court is discussed in public, to how the court is covered by the press, to how the court is taught in law schools. And part of why I wanted to write this book is because it seemed like this was an area where there was a gap to fill, when it came to sort of translating for a more general audience why some of the more technical stuff that the court does can be just as important as the more visible, fancy, lengthy decisions we get in argued cases.
And so, first and foremost, my goal is just to sort of put this on folks radar that we ought to pay attention to this part of what the court does. And then, once we start paying attention, look what we find.
LAW DORK: I really appreciated the historical context that you give. I've got several notes in here about things that I'm going to have to follow up with and look at for myself. For many folks, the shadow docket discussion today sort of feels like it’s something new that's come out of nowhere. And I feel like you do a good job in the book of explaining how this has been developing. And, while it's taken on a far more central role in terms of either dispositive decisions or at least substantive decisions, there have been substantive effects of these decisions for decades. What did going through the history that led us to this point teach you or change your views about how we got here?
VLADECK: First, from a sort of storytelling perspective, it seemed really important to me to put recent events into their proper context. The folks who are defending the court, even Justice Alito, have insisted that there's nothing new under the sun. And I think the reality is, there's a lot that's new under the sun, but it's a little complicated to explain how. So, to that end, the book deliberately starts with the history of the court’s docket — and the history of certiorari [when the court takes up cases for review] specifically — to make the point that the court has been in the practice of using unsigned, unexplained orders to shape its docket and to basically consolidate its power for just about a century now. And that there's a direct relationship between that consolidation of power and the emergence of the court as this dominant institution in American public policy. I think it's pretty clearly not just a correlation in when those two things happen.
It's not at all how the court behaved for its first 100 years of existence. And [I] try and sort of set up the idea that this was a policy choice and not an inevitability.
The Marriage Cases
LAW DORK: Speaking of of policy choices and inevitability, how does the experience that we went through — now starting almost a decade ago — with the marriage cases, how did that fit into this examination of what the shadow docket has become?
VLADECK: It's a real question, and you actually figure in the answer. One of the one of the things I try in the book is to use hopefully accessible stories about either individual cases or series of cases to illustrate the broader themes. And the marriage cases, I think, are such a powerful and just accessible example of how cert denials can have such a massive impact in the real world, even in contexts in which everyone agrees that they're not formally precedential. And it's not just telling the chronology, which I was inspired to do from you; I also was looking for an example of cert denials that had real world impacts [and] that were clearly strategic. Where I wouldn't have to persuade skeptical readers that the justices were behaving in strategic ways, because of the difference in effects of a cert denial versus a plenary affirmance. And, the marriage cases drive that home so brilliantly, because it is so clear that the denials back in October of 2014 were purely strategic and were an effort by at least some of the conservative justices to keep the marriage issue away from the court at the cost of allowing a whole bunch of state marriage bans to fall.
[Editor’s Note: Vladeck is referencing work that I did describing the 2014 handling of cert denials in the marriage cases.]
VLADECK: I [also] want readers to understand, first of all, that not every example of relevant shadow docket decisions is conservatives behaving badly. I want to build the case that there are specific ways in which the current court is misbehaving, but that there's plenty to go around. But also Chris, I think it's also such a good illustration of the different ways that we talk about the court. Everyone walks around saying Obergefell legalized same-sex marriage, and I think Obergefell constitutionalized same-sex marriage. But the reality is that by the time Obergefell was decided, same-sex marriage was legal in 37 states, and half of those had come directly or indirectly from cert denials.
LAW DORK: Had literally come in between that October cert denial and the decision. … In that chapter, there was, when you moved on from the marriage cases, a discussion that I thought would be really interesting, outside of marriage, for people. You talk about the role of the appeals courts and how — while they don't get to file cert petitions or oppose cert, you talk about how they attempt to do that in their opinions, and how that's become more common.
VLADECK: There are a couple of ways that this happens. Sometimes, if there's a judge on the panel who dissents and thinks the majority opinion ought to go up — you'll see dissenting opinions, especially these days, that really scream out for public attention, whether through the rhetoric or their analysis or both.
But the real practice that I think surprises a lot of non-lawyers is the upsurge of what some folks called dissentals, where a judge who is not on the [three-judge] panel will call for rehearing en banc [by the full appeals court], knowing usually that they won't get it, and then will write a dissenting opinion when the full court denies rehearing en banc, that serves much the same purpose [as a dissent had they been on the panel]. And there have been a lot more of those in the last 10 or 15 years than we had seen previously.
I think it's part of a larger story about how lower court judges themselves are behaving in ways that are strategic vis-a-vis the discretion that's baked into certiorari. But also, I think it's a good illustration of how lower court judges are in conversation with the Supreme Court.
LAW DORK: And then there was also the mirror of that with cert-proofing.
VLADECK: Yes, it's a two-way street. The same lower court judges who might want one case to go the Supreme Court might want to keep another one away from the Supreme Court. And so there are ways to write the decision that might make it less attractive to the justices — for example, having a series of alternative holdings.
It came as a surprise to my editor, just how transparently [the lower court judges can be] advertising issues that they either want to or fear will get the justices’ attention.
The Death Penalty
LAW DORK: On the death penalty, I've spent a lot of time on the death penalty — waiting up due to the Trump administration executions and the late-night orders
VLADECK: Yeah, July 2020 was rough.
LAW DORK: Some of the history in this section was really instructive about how both the death penalty and shadow docket developed. You talked about the lower courts working in either symphony or discord with the court on cases. With the death penalty, it's been a little bit of that and also a bit of that with Congress, as changes have been made.
VLADECK: The death penalty chapter was, in some respects, the most important to me in the book, because it really was the bridge from the past to the present. You talk to anyone who clerked on the court between 1980 and the mid-2010s, and you ask them about the shadow docket, and all they'll say is, ‘Oh, yeah, the death docket.’ Because that was the vast majority of out-of-regular-order disputes that the court would hear, or at least that the court would be confronted with.
The real sort of ‘Eureka!’ moment that I had writing in the book was figuring out exactly why the court had shifted all of its procedures in the early 1980s. It was sort of staring me in the face, but [it was] the flood of last-minute emergency applications in capital cases — and how that led the court to really start embracing some of the problematic behaviors that have become more commonplace recently outside of the capital context.
And so I thought it was really important to tell that story in a way that was — not trying to cast the court as the villain, but that the court was sort of faced with a problem, to some degree of its own creation, because of how it brought back the death penalty in 1976. And instead of trying to sort of think through, strategically, a way to balance the competing interests with all of these new emergency applications [which, Vladeck details in his book, was in large part the result of a combination of the court’s decisions and congressional decisions, not the decision of criminal defense lawyers to bring last-minute claims], they just sort of dug themselves deeper and deeper into a hole. And for 30 years, the only saving grace of the hole was that it was only in the death penalty context.
Then, in the mid-2010s, we see the court starting to use some of the same behaviors more regularly in non-capital cases. The contexts are new, but the pathologies are not. Which is probably why it didn't feel that unusual to some of the justices to behave the way they started behaving in the mid-2010s, even though the context was totally different.
LAW DORK: Obviously the death cases, both on the merits docket and on the shadow docket, have led to some of the more, not even intemperate, but more stark dissents over time. In terms of the impact on the shadow docket, in terms of people's interest in the shadow docket, can you talk a little bit about how fitting those late-night dissents from justices in the Trump administration executions into this book really worked for you. Do you see that period as sort of an exception that happened — “death is different”? Or was it a part of where the court was going more broadly?
VLADECK: It's a great question. I think it was a confluence of a couple of different things. When the court is hit with this series of federal prisoner death penalty cases, starting in early 2020, these are coming alongside what we might think of as the later Trump administration challenges — and, as 2020 goes on, the COVID cases. And so, you have all these things intersecting in the court at the same time, where some of the groundwork has already been laid. The book talks about the 2019 disputes over the religious officiant in the execution chamber cases. And just how angry Justice Kagan, for example, gets at that majority in the Alabama case.1
I think we could have taken the same, "That's the death penalty in those cases are over there" approach, except that it was so clear, by the time the federal execution cases come up in the summer of 2020, that this was part of a broader problem and that the court’s behavior in the federal death penalty cases actually had a heck of a lot in common with its behavior in the Trump administration cases and in at least some of the emerging COVID cases.
LAW DORK: You go into some detail about — I felt as I was reading it, that you almost struggled with your law professor empathy for trying to come up with some legal reasoning for something here — how the justices handled that last execution.
VLADECK: I'm often asked, is there a single case that stands out as like the worst of the worst when it comes to how the court has used and abused the shadow docket? And folks actually expect me to say the [Texas] S.B. 8 case. I think Higgs is just so obviously worse.
Dustin Higgs is the last of the 13 federal prisoners who's executed during the final six months of the Trump administration, and the legal question that gummed up his execution is really one that, if it weren't so serious, would make for a great law school exam question. He's convicted in federal court in Maryland, at a time when Maryland had the death penalty. And so, at the time of his conviction, Federal law says that the execution should be carried out pursuant to the procedures of the state in which you're convicted. Between his conviction and his scheduled execution, Maryland abolishes the death penalty, meaning there are no lawful procedures by which Maryland can carry out an execution.
This raises a question no one had answered before, which is, “What do we then?” And the district court, in I think a very thoughtful opinion, had concluded that it just wasn't clear that it had the unilateral authority to say, “We'll just follow Indiana,’ which is what the Trump administration had asked [because the federal death chamber is in Indiana]. And the Fourth Circuit had agreed to hear the appeal on a very expedited basis, and it had scheduled oral argument for January 22, 2021.
And the Trump administration goes to the Supreme Court and says that's not good enough. And they asked the court not only to un-stay Higgs’s execution, but to take what was really an extraordinary procedural step, which was to grant certiorari before judgment — to jump over the Fourth Circuit — and to just decide that the district could designate Indiana as the appropriate state. And then, in this unsigned, unexplained order on, I think it was January 15, the court acquiesces.
And Chris, what's so exasperating about the Higgs ruling is that there's just no plausible explanation for why the court would move that quickly, other than the fact that President Biden was about to be inaugurated and that it was entirely possible that if Higgs was still on death row when Biden was inaugurated that Biden would have commuted his sentence. And that might be something to which some of the justices had policy objections, but how would that justify jumping over the court of appeals, granting emergency relief, and deciding summarily a question that the lower courts had twisted themselves into a pretzel over? It's just really hard to contemplate. And the only explanation that I've ever heard that remotely defends the court’s behavior in Higgs is that the justices believed that the Fourth Circuit was messing with them —
LAW DORK: By setting argument on the 22nd?
VLADECK: Exactly. So, the only possible defense is that maybe the Fourth Circuit was acting in bad faith. But, first of all, no one says that publicly. And, second, the Fourth Circuit still moved pretty quickly. If anything, the fact that this stuff was coming up so close to the end of the administration was on the White House — not on the courts.
There are individual decisions along the way here that I think could be defended and have been defended. But then there are outliers like Higgs. And when you look at the overall pattern of decision-making by the court, in 2020 and 2021, you see more Higgses than you do cases that have more obvious defenses.
LAW DORK: There was a line toward the end of the book that really stuck with me. And it was, “The merits docket exists in the shadows of the shadow docket, not the other way around.” What do you mean by that? And why is that so important?
VLADECK: The book starts from the premise that we don’t pay enough attention to the shadow docket because we’re spending so much time focusing on the merits docket. And I think it’s not obvious to folks who don’t spend a lot of time, as you and I do, following the court, practicing in the court, whatever, that everything the court does on the merits docket is an outgrowth of the shadow docket. The cases the justices choose to hear, they’re choosing to hear through unsigned, unexplained orders. The issues the justices are choosing to resolve within the cases, they are choosing to hear — sometimes without the help of the parties — on the shadow docket. I think that it's counterintuitive — maybe until you read the book.
When the court, in Dobbs, decides to overrule Roe, that wasn't a question that Mississippi had presented in its cert petition. The question the court decides in Bruen is actually a question the justices wrote themselves, rather than granting the questions that the challengers to the New York law had presented.
I think we ought to get out of the mindset that the shadow docket is the exception and the merits docket is the rule. It really is the other way around. Most of what the court is doing, it's doing in the context of unsigned, unexplained orders — many of which are anodyne, many of which we really don't care about. But even what the justices end up deciding to decide on the merits docket is an outgrowth of the power that Congress has given the court and the court has claimed for itself to set its own agenda.
LAW DORK: We just saw an example last week with the decision to cut question one of the Chevron case, Loper Bright Enterprises v. Raimondo.
VLADECK: Absolutely. And I think we have become inured to this because we grew up with the modern court, we cover the modern court. But for folks who aren't as familiar with the court, or at least for folks who aren't as familiar with the court’s history, I think it's worth stressing that this authority, this ability, and this discretion gives the justices an enormous amount of power.
We can debate whether that power is a good thing or a bad thing — but we ought to at least be able to agree that it's power that they don't have to have, constitutionally, and it’s power that, at least in some circumstances, can be abused.
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