Amicus With Dahlia Lithwick | Parsing the Shadow Docket

Date: February 16, 2019
Host: Dahlia Lithwick
Guests: Risa Goluboff (Dean, UVA Law), Leslie Kendrick (Vice Dean, UVA Law)

Episode Overview

In this episode, host Dahlia Lithwick welcomes legal scholars Risa Goluboff and Leslie Kendrick for a wide-ranging discussion focused on recent hot-button legal controversies and the ways American law and Supreme Court practice are evolving. Threaded throughout are themes of gender and leadership in legal academia, racism and historical reckoning, the #MeToo movement, and major recent Supreme Court decisions delivered on the so-called "shadow docket"—particularly in cases touching on abortion, religious freedom, and the First Amendment. The episode culminates in a preview of an upcoming Establishment Clause case about a government-maintained Christian cross.

Key Discussion Points & Insights

1. Gender in Legal Academia: Shifting the Leadership Paradigm

Opening Topic: The increasing presence of women in top law school leadership roles.

• [03:44] Risa Goluboff recounts the gradual progress of women in the legal academy:

  "We've had female law students coming to law schools in almost if not exactly equal numbers as men for the last several decades and entering into the legal academy... There are clearly more and more women moving up the ranks."

• The shift is characterized as a product of long-term groundwork and a new critical mass of women in leadership, paralleling shifts in Fortune 500 companies and government.
• [05:29] Leslie Kendrick reflects on "benefit[ing] from the groundwork that other people have laid," and:

  "I'm so glad that I've never had to be the first first."

• The discussion underscores how increased diversity brings fresh conversations about leadership, retention, and shaping institutional priorities.
• [07:48] Risa: "Now there's kind of a breakthrough generation, which is similar to what you're seeing, I think, in the political sphere."

2. Racism and Reckoning in Virginia

Trigger Event: Recent scandals involving blackface in old Virginia yearbooks, high-level state officials implicated.

• [09:21] Risa Goluboff on grappling with institutional and historical racism:

  "We suppress... at various times and in various ways... We say we're done, we finished. And then all of these pieces that still exist, these continuing... they're actually much more deeply embedded than [vestiges]..."

• [12:25] Leslie Kendrick emphasizes the necessity of confronting difficult truths for progress:

  "Truth is central to any type of reckoning and any ability to move forward... If you zoom out, think about how, as a country, can we ever make progress? It can't be by running from our past. It has to be by confronting it."

• The discussion acknowledges the pain and exhaustion of "being clobbered by these reminders" and the disappointment when such issues surface at the leadership level.

3. The Role of Journalism vs. Law in #MeToo Moments

• [13:47] Dahlia Lithwick contrasts the #MeToo movement's "callout" culture in media with traditional legal processes:

  "Whatever MeToo is, MeToo as performed in journalism, it's not a process... it just feels as though it's antithetical to the way we were trained to think as attorneys."

• [16:01] Risa Goluboff contextualizes MeToo as a response to legal system failures:

  "Law professors sometimes talk about bargaining in the shadow of law and what law does to norms... a lot of what's going on now is a feeling of... betrayal... that the justice system hasn't worked for them. And this then becomes the media and social media and public forum..."

• The guests explore the tension between the speed/democratization of social media responses and the more deliberate, safeguarded procedures of legal processes.

• [19:04] Dahlia expresses concern:

  "...the currency in which we trade, once we're doing this right, the coin of the realm is shaming."

• The consensus: balance between legal norms, media exposure, and the social function of shame and accountability is difficult to strike, and recalibration is an ongoing challenge.

4. Supreme Court Shadow Docket: Abortion and Religious Claims

4a. June Medical Services—Abortion Access Stay

[21:14] Discussion of the Supreme Court’s emergency stay regarding Louisiana's admitting privileges law.

• [22:26] Risa debunks the notion that Chief Justice Roberts has become a moderate on abortion:

  "[The Fifth Circuit was] truly thumbing its nose at the Court and a case that the court just decided [Whole Woman's Health]. And I think that's not something you can countenance as the Chief Justice of the United States."

• Roberts' decision is seen as defending Court precedence and institutional legitimacy, not necessarily abortion rights per se.

4b. Dunn v. Ray—Religious Rights in Execution Chambers

[25:04] A 5-4 decision let Alabama execute a Muslim inmate without his preferred spiritual advisor (imam), because the request was "too late."

• [27:08] Leslie explains the procedural reasoning used by the majority and Justice Kagan's sharp dissent citing Establishment Clause violations:

  "This looks like a textbook Establishment Clause violation." — Justice Kagan (as paraphrased by Leslie)

• [31:17] Risa underscores the gravity of denying redress when finality (execution) is at stake:

  "If the court thought there was the possibility of an Establishment Clause violation here ... you hold up ... the smooth functioning of the state's ability to execute ... against the finality of the death without being able to have his spiritual adviser there. And it feels very, very final."

• The hosts note the role of the shadow docket—cases resolved via brief procedural orders rather than merits decisions.

4c. The "Shadow Docket" Practice

[33:09] Dahlia and guests discuss growing concern over critical constitutional questions getting sidelined in procedural rulings.

• Quoting Leah Litman:

  "If you let me write the procedure and I let you write the substance, I'll screw you every time." ([33:09])

• Risa stresses the substantial effects such orders can have, despite the absence of full opinions:

  "So much of what the court does and so much of how it affects the development of law is not in the cases it takes and argues on the merits, but in the cases it doesn't take and in the orders it issues." ([34:35])

• [35:49] Leslie draws a historical parallel to Palmer v. Thompson (closing swimming pools to avoid desegregation):

  "If nobody gets their chaplain, then everybody's worse off." ([37:04])

5. Establishment Clause & Government Symbols: The "Bladensburg Cross" Case

Preview of American Legion v. American Humanist Association

[37:32] The Court will soon weigh whether a 40-foot WWI memorial cross on public land violates the Establishment Clause.

• [38:38] Leslie summarizes the plaintiffs’ argument:

  "This is a publicly maintained monument that is a cross. It's taking a position on religion in a way that violates the Establishment clause."

• District and appellate courts are split; context and tradition play central roles.
• [40:41] Risa questions how tradition and original societal understandings of symbols shape constitutional analysis, and when it's appropriate to repudiate past practices (“ongoing dynamic social, political, and legal process”).

The Lemon Test & The Impossible Task

[43:17] Leslie explains the Lemon v. Kurtzman test for Establishment Clause cases: > "One is, does this thing have a significant secular purpose? The second question is, does it lack the primary effect of advancing or inhibiting religion? And the third question is, does it not foster excessive entanglement between government and religion?"

• [44:28] Dahlia illustrates the challenge: two similar Ten Commandments cases were decided differently based on context; symbolic meaning is inescapably contingent and often culturally contested.
• Notable Cross/Religion Symbolism Anecdote:

  "Justice Scalia was still alive, and there he was shouting at the ACLU lawyer... that a cross is as much to honor Jewish war dead as Christian war dead. And the poor lawyer was like, dude, I've been in a lot of Jewish cemeteries. There are never crosses honoring people there." ([45:30])

• [48:50] Risa notes that some Christians also object to secularizing the cross:

  "...there are many Christians who would say, no, the cross is not secular, it's actually the sign of the resurrection."

Notable Quotes & Memorable Moments

• On being the “first” female dean:

  "I've never been the first woman to do anything that I've done, and I love that."
  — Leslie Kendrick ([05:29])

• On reckoning with racist pasts:

  "We are constantly retelling stories that let us off the hook, and we have to tell the stories that make us grapple with what happened and how it continues to live."
  — Risa Goluboff ([09:21])

• On the "coin of the realm is shaming":

  "...what worries me is that the currency in which we trade, once we're doing this right, the coin of the realm is shaming."
  — Dahlia Lithwick ([19:04])

• On the procedural shadow docket:

  "So much of what the court does and so much of how it affects the development of law is ... in the orders it issues."
  — Risa Goluboff ([34:35])

• On outcomes of shutting down rights for all:

  "If nobody gets their chaplain, then everybody's worse off."
  — Leslie Kendrick ([37:04])

Timestamps for Key Segments

• Gender & Law School Leadership: 03:10–08:19
• Race, Reckoning & Virginia Politics: 08:19–13:47
• #MeToo, Journalism vs. Legal Process: 13:47–21:14
• Supreme Court: Shadow Docket/Abortion Stay: 21:14–25:04
• Religious Rights in Execution (Dunn v. Ray): 25:04–33:09
• Procedure vs. Substance – Leah Litman’s critique: 33:09–35:49
• Palmer v. Thompson, Universal Denial of Rights: 35:49–37:32
• Bladensburg Cross Establishment Clause Preview: 37:32–52:02
• Common Law Podcast Announcement: 50:41–52:02

Conclusion

This episode of Amicus offers a thoughtful exploration of contemporary legal dilemmas at the intersection of gender, race, religion, and process. Dahlia Lithwick, with her UVA Law guests, illuminates how procedural rulings (“the shadow docket”) are becoming central to Supreme Court jurisprudence, often with deep—if underacknowledged—substantive impact, especially on issues with profound constitutional importance. The conversation, replete with historical context, personal insight, and lively wit, underscores the law’s enduring and sometimes uneasy role in shaping the terms of American public and private life.