The Supreme Court’s Shadow Docket with Stephen Vladeck

Summary

Podcast Summary: "The Supreme Court’s Shadow Docket with Stephen Vladeck"

Podcast Information:

• Title: Here's Where It Gets Interesting
• Host: Sharon McMahon
• Guest: Stephen Vladeck, Georgetown Law Professor
• Episode Title: The Supreme Court’s Shadow Docket with Stephen Vladeck
• Release Date: July 21, 2025
• Description: Sharon McMahon delves into the lesser-known aspects of American history and contemporary issues, featuring conversations with influential thought leaders. In this episode, she explores the intricacies of the Supreme Court's shadow docket with legal expert Stephen Vladeck.

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Introduction to the Shadow Docket [01:22 – 03:33]

Sharon McMahon opens the discussion by highlighting the Supreme Court’s increasing reliance on what is termed the "shadow docket." She introduces Stephen Vladeck, a Georgetown Law Professor specializing in federal legal procedures and the Supreme Court's operational structure.

Steve Vladeck:
"My interest in the Supreme Court has always been sort of drawn to the more technical side of what the Court does... how it came to be that the Supreme Court plays such a dominant role in so many facets of our contemporary public policy debates."
[02:19]

Defining the Shadow Docket [03:33 – 07:09]

Vladeck explains that the shadow docket encompasses all Supreme Court actions outside the prominent, lengthy decisions heard during the "merits docket." This includes unsigned, unexplained orders and decisions that do not involve oral arguments or extensive briefing.

Steve Vladeck:
"The shadow docket is basically everything else... 99% of the Supreme Court's work comes through unsigned, unexplained orders."
[04:08]

He emphasizes that while many of these decisions are routine and unimpactful, some have significant repercussions, such as influencing public policy without the extensive scrutiny that merits cases receive.

Impact on Public Policy and Perception [07:41 – 10:51]

The conversation shifts to the implications of the shadow docket on public policy and the Court’s credibility. Vladeck uses the legalization of same-sex marriage as a case study, revealing that many states advanced this cause not solely through the landmark Obergefell v. Hodges decision but significantly through the Court’s denials to hear other related cases.

Steve Vladeck:
"Obergefell itself only legalized same-sex marriage in 13 states. By the time the court decided Obergefell, 19 states had legalized same-sex marriage on their own, and 18 had had same-sex marriage legalized by federal court rulings that the Supreme Court declined to review."
[07:09]

This example illustrates how the shadow docket can play a pivotal role in shaping national policy, often without the transparency and deliberation associated with major rulings.

Public Perception and Trust [16:05 – 22:32]

Vladeck discusses the declining public trust in the Supreme Court and how the shadow docket contributes to this erosion. He points out that the Court's increased involvement in divisive issues through the shadow docket has made its actions more visible and often contentious.

Steve Vladeck:
"The shadow docket injects the Court into more and more divisive contexts... It’s not because of who the current court is about what the justices are doing."
[21:00]

He argues that the problems with the shadow docket are institutional rather than ideological, suggesting that the Court’s structure and operations have become less accountable and more opaque.

Structural Issues and Potential Reforms [25:07 – 34:48]

Sharon and Vladeck delve into the structural challenges facing the Supreme Court, particularly the lack of accountability and the minimal influence the public and Congress can exert over its operations. Vladeck proposes that Congress has more tools at its disposal than commonly perceived, such as controlling the Court’s budget and setting parameters for its docket.

Steve Vladeck:
"Congress every year appropriates money to the Supreme Court for its budget. Congress could stop doing that. It's not going to. So the court is already dependent upon Congress and through Congress, voters just to operate."
[25:07]

He emphasizes the need for a bipartisan consensus to address these institutional issues, advocating for reforms that would reinstate a balance of power and enhance the Court's accountability.

Case Study: Jones v. Hendrix [35:35 – 40:47]

A critical portion of the discussion centers on the case of Jones v. Hendrix, which epitomizes the problematic nature of the shadow docket. Vladeck critiques the Court’s decision, highlighting how it prioritizes procedural correctness over substantive justice, leading to outcomes where legally innocent individuals remain imprisoned due to procedural shortcomings.

Steve Vladeck:
"The way that it's written, you have tied our hands. You've tied our hands, Congress. You need to fix it."
[38:07]

He laments the Court's failure to acknowledge the injustice of such decisions and calls for a more proactive stance in addressing the system's failings, even if it means urging Congress to enact necessary reforms.

Conclusion and Final Thoughts [41:27 – 42:47]

Sharon and Vladeck wrap up the conversation by reiterating the importance of understanding the shadow docket and its broader implications for the judiciary and American democracy. Vladeck underscores that healthy institutions require more than ideological alignment; they demand structural integrity and accountability.

Steve Vladeck:
"If people take nothing else away from the book, or at least from our time together today, like that is the best summary of the bottom line."
[41:27]

He encourages continuous dialogue and legislative engagement to restore balance and trust in the Supreme Court’s functions.

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Key Takeaways:

• Shadow Docket Significance: The shadow docket represents the majority of the Supreme Court's activities, handling urgent and procedural matters without the transparency of the merits docket.

• Policy Influence: Decisions made through the shadow docket can have profound and wide-reaching effects on public policy, often bypassing extensive public and judicial scrutiny.

• Public Trust Issues: The opaque nature of the shadow docket contributes to declining public trust in the Supreme Court, exacerbated by its involvement in highly divisive issues.

• Structural Reforms Needed: There is a pressing need for institutional reforms to increase transparency, accountability, and congressional oversight of the Supreme Court's operations.

• Case Example - Jones v. Hendrix: Highlights the moral and procedural dilemmas posed by the shadow docket, where legally innocent individuals may suffer due to rigid adherence to procedures.

Notable Quotes:

• "99% of the Supreme Court's work comes through unsigned, unexplained orders." — Steve Vladeck [04:08]

• "The shadow docket injects the Court into more and more divisive contexts... It’s not because of who the current court is about what the justices are doing." — Steve Vladeck [21:00]

• "Congress every year appropriates money to the Supreme Court for its budget. Congress could stop doing that. It's not going to. So the court is already dependent upon Congress and through Congress, voters just to operate." — Steve Vladeck [25:07]

• "The way that it's written, you have tied our hands. You've tied our hands, Congress. You need to fix it." — Steve Vladeck [38:07]

• "If people take nothing else away from the book, or at least from our time together today, like that is the best summary of the bottom line." — Steve Vladeck [41:27]

---

Conclusion: This episode of "Here's Where It Gets Interesting" provides a comprehensive exploration of the Supreme Court's shadow docket, shedding light on its profound yet often overlooked impact on American law and society. Through insightful dialogue, Sharon McMahon and Stephen Vladeck uncover the complexities and challenges posed by the shadow docket, advocating for necessary reforms to ensure the judiciary remains a balanced and accountable pillar of the American democratic system.

Transcript

[Sharon McMahon]

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[Sharon McMahon]

Hey friends, welcome. Delighted to have you with me today. The Supreme Court term has ended and won't begin again until October, and that is why this is the perfect time to talk about something that the Court has been making increasing use of, known as the shadow docket. My guest is Georgetown Law Professor Steve Vladek, and I can't wait for you to hear this conversation, so let's dive in. I'm Sharon McMahon, and here's where it gets interesting.

[Steve Vladek]

Of course I love the Supreme Court and I read your book with interest, and it is a book about the Supreme Court's shadow docket. So much to talk about, so much to get into. I would love for you to start by giving people just a little bit of your professional background so they have a basis for understanding how you even came to write a book about the shadow docket. And then we'll get into it.

So I'm, as you say, a law professor at the University of Texas in Austin, Hookham. I've been teaching for 17 years and my real areas of expertise are nerdy questions of federal legal procedure and sort of the structure of the federal court system. And of course, the Supreme Court figures prominently in all of that. And I've been lucky. You know, as I've been teaching and writing about the Supreme Court, I've also had a couple of opportunities to practice before the Supreme Court. But, you know, Sharon, for me, my interest in the Supreme Court has always been sort of drawn to the more technical side of what the Court does, partly because I'm a proceduralist at heart. Like, I'm interested in how systems work and not just the bottom lines that they produce, and partly because I think there's actually a lot of stuff buried in the procedure that actually is really important. And it's really a big part of what impelled me to write this book was to try to actually bring to folks who care about the Supreme Court, who are interested in the Supreme Court, but maybe who are not the nerds about the Supreme Court that I am more understanding of, like, how it came to be that the Supreme Court plays such this dominant role in so many facets of our contemporary public policy debates.

Well, you know what we call people like you, Steve, people in this community, we call ourselves governors. So you can take that and run with it, Steve. I, of course, am very interested in the Supreme Court's influence on public life. But as you mentioned, in order to understand the scope of their impact, you have to understand the shadow docket. So, first of all, what is the shadow docket? For somebody who hasn't read the book yet, what actually is it?

So the term is this really descriptive shorthand that Chicago law professor named Will bode coined in 2015, really, to encompass everything that the Supreme Court does, all the rulings the Supreme Court hands down, other than the 60 or so big, long decisions we get every May and June in cases that have received the sort of the full nine yards of process, in cases in which there was oral argument, multiple rounds of briefing. That's the merits docket. And the shadow docket is basically everything else. And Will's insight back in 2015 is that there's actually a lot of pretty important stuff that happens in the shadows where we don't talk about it as much, you know, where because of the sort of the nature of how the Court deals with those matters, there's just not nearly as much access to them. There's not nearly as much public discussion of them. The most important thing I hope folks take away, at least from our conversation, even if they don't pick up the book, is that actually most of what the Supreme Court does is over there in the shadows, not in front of us on the merits docket by volume, it's 99% of the Supreme Court's work comes through unsigned, unexplained orders. And a lot of those orders are unimportant. And we don't care much about them, but not all of them. Right. And so the basic gist of the book is, hey, here's a big part of what the Supreme Court does that we don't know a lot about, that we don't talk a lot about, and that I think folks who are not the sort of uber legal nerds may not even be fully aware exists.

When you say that 99% of their work comes in the shadows, does that also include their denials? They're like, we're not hearing your case. You get nothing. Nothing for you, goodbye. Does that include that?

It does. And so one of the things I think some folks may already know about the Supreme Court, but I think a lot of folks may not fully appreciate is today and really, since 1988, almost all of the Supreme Court's merits docket, right? Almost all of the cases in which the justices have multiple rounds of briefing and oral argument are cases that the justices have chosen to hear. So just for example, I mean, this most recent term, the court decided 58 cases on its merit Stocket. All but one of those were cases the justices chose to decide. There is one, what we call mandatory appeal. And what that means, Sharon, is that a lot of what the court does by volume, by sort of impact, and just by math, is deciding which cases to hear and which cases not to hear. The justices get somewhere between 4 and 6,000 petitions for review, what we call certiorari every year. And so just the biggest chunk of data in Supreme Court decision making is when the court says, hey, we're not going to hear your case, and we're going to let the last ruling by a lower court, whether it's a federal appeals court or a state supreme court, be the last word.

People are always curious about when the Supreme Court does not agree to take a case, to what extent does that represent agreement with the lower court versus just a topic they're not interested in, versus something where, like, listen, we've already heard 22 cases about this topic. We're not taking another one. Do you have a sense of the ratio of how that works? No, because they don't tell you. They don't tell you, right?

I mean, shart. It is such an illustrative question because that would be so helpful to know. And yet the court not only doesn't give us any indication of why it's not taking up a case, but it has told us over and over again that people like you and me should not read anything into we are not allowed to draw any inferences. And that's not, of course, the same thing as when the court hands down a massive, lengthy opinion, say, on affirmative action or religion or abortion. But as the book tries to explain, it actually is in some respects a critical part of how we get to those decisions. And even when the court says you can't read anything into our denials, the denials often still have massive practical effects. One of the stories the book tells is when it came to the legalization of same sex marriage. You know, I think a lot of folks just assume that the critical moment was the Supreme Court's 2015 to solution in a case called Oberg vs Hodges on the merits docket. It actually turns out that if you really pull apart the cases, Obergefell itself only legalized same sex marriage in 13 states. By the time the court decided Obergefell, 19 states had legalized same sex marriage on their own, and 18 had had same sex marriage legalized by federal court rulings that the Supreme Court declined to review. And so there's a very, I think, hopefully accessible example where in 18 states, same sex marriage became legal because of denials of certiorari. In only 13 did it become legal because of a marriage rule. Like that's an unusually visible example of the broader phenomenon of just how much power the Court actually exercises, Even when it is declining to take a case.

Out of personal curiosity, even though they say, like, listen, don't read into it, it doesn't mean anything. But do you personally now look back with the hindsight being 20 20, and trace a connection between those more than a dozen denials to their future decision? What is your personal inference from the example that you just gave?

So the first thing to say is that we ought to remember that the Supreme Court is a they, not an it. Right? And so different justices might have been voting to deny certiorari for different reasons. I think the best I can say, and the book says this, you know, in print, is that I think, at least for the justice who was probably the critical swing vote, Chief Justice Roberts, I think the consideration that probably drove it was he was willing to let same sex marriage be legalized without the Supreme Court's imprimatur. But he was not willing to have the Supreme Court bless it. And so when it was simply a matter of staying out of the issue, right. He was comfortable keeping the court out of that fight. But once the court's hand was forced, once one of the lower courts ruled the other way and created what we call a circuit split, that's when the court had to intervene and Chief Judge Roberts ends up dissenting on the merits.

Can you explain for somebody who's not familiar what the concept of a circuit split is and why that might force the Supreme Court's hand?

So before 1891, the Supreme Court had no control over its docket. Basically, if Congress said, hey, Supreme Court, you can hear this case, then the court had to hear the case before the Civil War. That was not a big deal. The courts hear them 50, 60 cases a year. By 1880, there were 1800 cases on the court's docket. They were three and a half years behind. That was not going to work. So with the power to sort of have discretion over which cases the court's going to hear, which we see the first sort of step toward an 1891, the big step is 1925, Sharon, comes the question of what are going to be the cases that the court does take? Right. What are going to be the cases where the court really does feel impelled to exercise its discretion? So one set of cases is what we just call the sort of the uber important questions of federal law. Right. Where it's just a massively important question. We don't care what the lower court said. We need to decide this. So, you know, affirmative action, abortion, like the big hot button stuff. But then there's also the problem of the court of appeals in California says the law means one thing. The Court of Appeals in Texas says it means something else. We don't actually think this is a big deal, but the law should be uniform. And so we're going to take this case not because it's super important, but because we can't abide at having the law be different in two different places. So those are the two most common types of cases the Supreme Court takes today, where the two different lower courts have disagreed on a question of federal law, or where there's no disagreement. But the justices are of the view that resolving the question at the Supreme Court level is just too important to not take the case now.

[Sharon McMahon]

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[Brian]

Hey there cats and kittens. It's Brian from the commercial break. The mediocre comedy podcast where my best friend Chrissy and I attempt to make sense of the world. We talk about the absurd, the the ridiculous, and the stuff no one asked for, like Internet weirdos, pickup artists, and why everyone is obsessed with crystals and colonics. It's all gotta stop. The show is free, it's frequent, and it's probably not for everyone. You can go to tcbpodcast.com, [e-mail] thecommercialbreak or check out the show wherever you listen to podcasts. We'll see you on the next commercial break.

[Steve Vladek]

And best to you this episode of.

[Sharon McMahon]

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[Steve Vladek]

I'm sure you know that approval of the Supreme Court is at a very, very low point in history. Probably we pay more attention to the Supreme Court now than people did a hundred years ago. I don't know that you can make an argument that my grandmother even knew one Supreme Court case. Maybe she knew Brown v. Board because that was the era she was raising her children in, and it had a transformative effect on America. But I don't know that the average American was like, well, what is the court up to in the 1940s, aside from some of these really, really transformative cases? So there is, in my estimation, the information is more readily accessible because it's easy to find online. More people are commenting on it and sharing the information online, et cetera. And it seems as though the American public does not approve of this system. It doesn't approve of some of the justices, which that's a separate topic. I think the concept of a shadow docket, first of all, is poorly understood. The name the shadow docket makes it seem nefarious in intent. And the idea that they're out there, just like constantly making calculated moves also gives this feeling. Even if the calculated moves are completely benevolent, the fact that it's calculated gives some people pause and makes them feel as though there is some kind of, like, grandmaster plan. And I don't like the way this is going. I don't like the direction it's heading. Or maybe the opposite. Maybe they love it. So what are your feelings about the overall public perception of the workings of the court? Does the shadow docket damage the court's credibility?

I'm going to be a bit long winded in my answer. I'm sorry in advance. But let me start by saying I think part of the shift that you described in your question from, you know, our parents and our grandparents generation to our generation, yes, it's a function of media. But, Sharon, part of it is also a function of the shadow docket, by which I mean, like The Supreme Court 50, 75, a hundred years ago was not deciding as a percentage of its decisions nearly as many socially divisive cases that, yes, there were cases like Brown versus Board of Education, but those were maybe three or four a year in a court that's deciding 150 to 200 cases. Right. Those were like 1 or 2% even of the merits decisions the Court is handing down versus today, when the court, because it now has, since 1988, almost complete control. We talked before about how only one of the court's 58 decisions this term was a case the Court had to hear. That now it's not just that it feels like the Court is more invested in these big divisive topics. I think that data shows that it is more invested because the justices are, with all of this power to set their agenda, choosing an agenda that is injecting them into more and more divisive contexts. The student loan program. Right. Like that's controversial as a policy matter. There are lots of ways the Court could have not taken that case. The affirmative action cases. Right. The way the Court took them, it actually jumped over the federal appeals court. So I actually think there's a connection here that we should articulate before even getting to the meteor question, to the meat of your question. I don't think the shadow docket is inherently nefarious, just like I don't think the term is inherently nefarious. Shadows are not per se nefarious. They're just the natural consequence of having light sources obscured by objects. Right. The problem is that I think there's a lot of distrust among lots of folks in the public and in the media, partly because the stories about the Supreme Court that we hear so often are so focused on the merits docket, where in the biggest, most visible cases, the Justices are most often dividing along the conventional, partisan, or ideological lines. And one of the things that I really hope the book does is it suggests that, yes, there are problems with the shadow docket, but they're not actually the same problems, that the problems on the shadow docket are institutional, not ideological, that it's not six conservatives versus three liberals. It's a court that for most of its history was much more accountable to the political branches, that now as an institution, both is less accountable and acts as if it's less accountable. And so I guess I'm trying to sort of suggest that there are a lot of reasons to be critical of the current Supreme Court that don't sound in, that aren't limited to, that don't reduce to six conservative justices appointed by Republican presidents versus three liberal justices appointed by Democratic presidents. Like I'm trying to sort of suggest, yes, the way the current Court uses the shadow doctrine is a problem, but not because of who the current court.

Is, that it's a broader issue and it's not about the current makeup of y'.

[Sharon McMahon]

All.

[Steve Vladek]

It is like a bigger issue than that.

And just as importantly. And it's not about the bottom lines. Right. Like, I mean, we are so accustomed to thinking about the Court as a function of whether we like or dislike the bottom lines. Right. Like, so whether we're pro abortion or anti abortion informs our assessment of how the Court handled Roe. Right. Whether we're pro affirmative action or anti affirmative action colors our assessment of what the Court should have done in the affirmative action cases. And I think that that's both woefully incomplete because we're not looking at the Court in institutional terms. And I actually think, Sharon, it perpetuates a really dangerous way of looking at the Court if we think that everything it does is guided by ideology and partisanship, as opposed to, if we look at the Court as an institution where we might think even if we like the bottom lines, there are problems with its relationship with the other branches, or we might think if we don't like the bottom line, we actually still think it ought to have all this at its core. Part of the story the book is trying to tell is that recent behavior by the Court, even though it's typified by the conservative justice, because they have the votes, is really a reflection not on anything about the conservative legal movement or conservative legal philosophy, and is really much more about the sort of the dangers of a court that has become increasingly unchecked, dangers that I think we would see just as much if the politics were flipped and we had, you know, a 6 to 3 liberal majority of justices.

Yeah. So what you're saying is the issues are with the structure and. And not with the decisions themselves. And you can agree or disagree with the decisions themselves, and there is still an issue with the structure and the function of the way the Court is currently operating.

And I think, I mean, what's interesting to me is, like, we are used to having that conversation in the context of the political branches. Right. So we've had for decades debates about executive power that have transcended whether the current president is a Democrat or Republican. You know, should the president have the power to unilaterally engage in drone strikes? That's a debate that we've had across multiple presidencies. You know, George Bush, Barack Obama, Donald Trump. I mean, like, that debate has not focused on who the president is. We're used to having the institutional conversation when we talk about the other branches. And I think one of the things that the book is really trying to push, you know, both lawyers and non lawyers, I'm trying to speak to everybody, is that this is a conversation that we used to have about the Court and that we've stopped having. And I think that that actually is a real problem, both because it is obscuring a lot of problems that Sharon, we might all agree are problems, and because it means that the conversation we are having is pitched in the most partisan and ideological terms it could possibly be because it's focused on the most overtly ideological feature of the Court's work.

I think one of the issues, Steve, is that even if people agree, like, yeah, we should be having these conversations, just like we debate the filibuster in the Senate, just like we are talking about these other structural issues, like to what extent should a president be able to use the executive order to create government programs or student loan forgiveness or whatever? Even if we are willing to engage in those conversations, which I think, you know, a lot of people in good faith are, the issue with the Court is that people feel completely powerless to do anything. We might be able to be like, listen, that guy is a bad guy and I'm not voting for him in Congress next time. I don't like him. He's not good for America. We might be able to make those kinds of changes. That is not true with the Court. And so it really, really irks people. And it feels like there's absolutely no power of the citizenry, that it's not we the people, it's the nine, it's not us. And I bet this is not the first. I'm not the first person to express this feeling to you, but I think some people wonder, like, to what end should we be having this conversation when it feels like there's absolutely nothing we can do?

That's exactly why we should be having this conversation, because there's a lot we can do. My favorite example of this. I think we can probably all agree that the Supreme Court would have a heck of a time operating without a budget. It's. It had no money. I mean, the Constitution requires Congress to pay the justices their salaries, but nothing else. And so if the Supreme Court's budget were just the nine salaries of the justices, Congress would be fulfilling its constitutional obligation.

Have fun with no clerks. Have fun with no building. Did you want air conditioning?

Do you want computers? I mean. Right. But the reason why I start with the budget is because this is not something Congress takes away. This is something Congress gives, right? Congress every year appropriates money to the Supreme Court for its budget. Congress could stop doing that. It's not going to. So the court is already dependent upon Congress and through Congress, voters just to operate. And if we go past that, the court is dependent upon Congress for its docket. Congress has the power to say which case of the court can and can't hear. The court is dependent upon Congress for having a building, as you say, right until 1935, the court sat in the Capitol in case anyone needed reminding of who was in charge. And so, you know, I think we feel powerless, Sharon, because we have forgotten all of this and we have forgotten that the way the Constitution is set up. And this is not a matter of debate among liberals and conservatives. This is just an objective fact. Congress has the big stick when it comes to not the substance of what the Supreme Court does, but basically the sort of the institutional features of its work. And there have been times in our history where Congress has used that stick. Congress basically prevented the court from even sitting in 1802 because it was mad at the Federalists in 1869. Congress prevents the Court from deciding a massively important case about Reconstruction because Congress was worried the court would decide it wrong. Congress in 1964 gave every federal judge a significant pay raise except the Supreme Court justices because Congress was mad at the justices. And so I think part of the problem, Sharon, is that we don't think about that anymore. We, we don't ask our representatives, hey, are you going to fund the Supreme Court? And so I guess we're so fixated on are we voting for a Democrat or we're voting for a Republican that we've stopped voting for institutionalists. There was a time not that long ago where there were members of Congress who were institutionalists. First you had liberal Republicans, you had conservative Democrats. And now that we have sort of everyone in such neat, tidy camps, it's the institutional part of that story that's fallen by the boards. That doesn't mean it can't be resuscitated and revived, but we've got to be the ones to do it by having conversations like this.

[Sharon McMahon]

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[Steve Vladek]

If that sounds helpful to you, go.

[Sharon McMahon]

To Ground News Sharon to follow along on that story. Ground news showed 186 total articles clearly Major news. Seeing both views side by side changes how you read the news. Plus the blind spot report shows if a story was covered way more by the left or right leaning sources. And that imbalance actually matters, especially if you want a full picture. So go to Ground News, Sharon, to get 40% off the ground News Vantage plan which will unlock access to all of their news analysis features. Ground News is doing such important work. I hope you'll check them out. That's Ground News, Sharon.

[Steve Vladek]

Let's say we have this conversation and we all agree that the shadow docket is like, yeah, that this is not how this Court should be optimally functioning. And we agree, like, yeah, okay, well, we can pressure Congress to not fund them until they make changes, until they fix it. Whose responsibility is it to fix it? Is it Congress passing a law to say, here is how you need to work? Is it forcing the Court to enact its own rules about things like ethics and merits cases? And whose responsibility is it to fix the structural issues within the Court?

So I mean, this is going to be a cop out of an answer, but both of them, and what I mean is that they have both overlapping and independent responsibilities. So no matter what, I think Congress really ought to reassert a modicum of institutional control over the Court. It can be really, really low hanging fruit, like just giving the Court a few more categories of cases it has to hear if can be slightly higher hanging fruit, like telling the Court when it can and can't grant so called emergency applications. You know, when a party's trying to get a state to block or unblock a lower court decision, that I think has to come from Congress. But I think the Justices can go a long way toward both facilitating those kinds of reforms and also mooting the need for more aggressive reforms if they show a bit more responsiveness. And something the book talks about toward the end is actually, at least on the shadow docket side of things, the Court has been a little responsive to critiques. I mean, we have seen a bit of a shift. There's a real uptick in what the book is very critical of vis a vis the Court's behavior and especially in emergency applications in 2020 and 2021. And we've seen the Court walk back from that brink, especially Justices Kavanaugh and Barrett, at least at the same time as there was a massive public pushback right. Against the Court's behavior. So I guess to me, the way that we have changed is first we show the Court that there is bipartisan consensus that some of these structural Behaviors are problematic, that there's a bipartisan consensus that the Court should be part of a coordinate federal system, not aloof from it, but also having Congress remind the court directly that, that the court is not his own keeper and that, you know, our separation of powers works best if I can be a real nerd and quote Madison for a second. When ambition is made to counteract ambition, when each branch is pushing at the limits of its power against the other branches. We have plenty of ambition on the Supreme Court right now. We've got plenty of ambition in the executive branch across different presidencies of different parties. There's so little institutional ambition in Congress right now that even though the court could do a lot of this itself, I think the long term solution is for Congress to reassert more of the control than it exercised for most of the first 200 years.

One of the cases that I was just talking about with some people is about this concept of legal innocence and how being legally innocent is not enough to get you another hearing anymore. You know, like if people, if you're a court watcher, the case is Jones v. Hendrix, that legal innocence isn't good enough. That's just like one example. Aside from those highly, highly divisive issues, most Americans, I would argue that 80 plus percent of Americans think it's really, really wrong to imprison people who are innocent. Right? Like we should all does not matter which name you checked in the voting booth. We should all want a justice system that imprisons the guilty and does not imprison the innocent. That seems really foundational. Right.

[Sharon McMahon]

Sometimes we get it wrong.

[Steve Vladek]

Yes, it's an inevitability in a system run by humans, but we should work to correct our wrongs, right? I think most people would agree with that, that we should work to correct our wrongs. And it seems like that the court is saying no. What's most important is the procedures were not followed. The procedures were not followed. You used up all of your chances, you used up all of your tries, and I'm sorry, you will now have to remain in prison even though you are legally innocent. And of course I'm over exaggerating it, not by much by paraphrasing, but that's the gist, right? That's the gist of Jones v. Hendrix is like you used up all your chances. Doesn't matter if you're legally innocent.

Jones is such a great example. Sharon, you know, I have a weekly newsletter about the Supreme Court. One first that's on Substack and I wrote about Jones. And the title of my piece about Jones is the Unnecessary cruelty of Jones vs Hendricks. What I find striking about Jones, without getting too far into the very dense technical weeds, is that even if you believe that the relevant statutes bar Mr. Jones from getting out of prison even though he was legally innocent, it seems to me that it would have been easy enough for those same six justices to devote the last couple paragraphs of their opinion to an invitation to Congress to fix this. Like, our job as judges is to apply the law. You've written the law. You know, we think the law is bad. The law is bad. Hey, Congress fix the law. And we have examples. I mean, you know, Justice Ginsburg's dissent in the Leadbetter case, right. Led to the Lilly Ledbetter Fair Pay act to fix a discrepancy in pay equity at the federal statutory level. And instead of a couple of paragraphs that say, we don't like this result, but we're not policymakers, and it seems to me that, like, that's the mentality. We shouldn't even reflect on whether this is unfair and suggest Congress should fix it. That's a symptom of this disease of the court being just insulated from even basic human decency, where the court could, with perfectly clean hands, say, hey, we don't like this interpretation of the statute within Congress should fix it. But that's Congress's job, and there's none of that in Jones. And that, to me, was the most indefensible part. I have problems with the statutory analysis, too. But let's assume that they've got the statutes right. Why not admit that the statutes, as they've read them, are grotesquely unfair?

This idea that, like, it's fine, there's nothing wrong with this decision. That attitude of we don't care about the effect of our orders, like, it doesn't matter if it affects you perversely, it does not matter to us. That's the overall tone and spirit that some, not all that some of these decisions are written with it. To your point, like, and they could have easily thrown in two or three sentences or a paragraph at the end of, like, listen, this is a bad law. They could have said, people who are legally innocent should not be imprisoned. But the way that it's written, you have tied our hands. You've tied our hands, Congress. You need to fix it.

Right? She reminded you, Congress.

Yeah, that's right. And then there could have been public pressure on Congress to fix it, but instead, the public does not know that that is a problem. That is Congress's to fix.

And this goes back to the sort of the broader theme that I think we've been touching on throughout this conversation, which is in a world in which the Court understood itself and viewed itself as being in this ongoing inner branch dialogue with Congress about its docket, about the law, about the structure of our government, I think that kind of denouement to the opinion would have been much more likely. One other really sort of trite example of this. So, you know, every December 31st, the Chief justice gives this year end report on the state of the federal judiciary. That usually gets no attention from anyone other than the Supreme Court press corps. The practice was inaugurated by Warren berger in the mid-1970s in sort of typical Berger fashion, because Berger wanted to have his own State of the Union. And so he wanted to like, elevate the visibility of the Chief Justice. But it had a very specific substantive point, which was, it was Berger's wish list to Congress, like, hey, Congress, here's what we need for next year. And that practice continued for the rest of Berger's tenure. It continues for all of Rehnquist's tenure as Chief Justice. And it's only in 2009 that John Roberts stops asking for stuff. And that's just another sort of illustration of the phenomenon that the book is trying to put into context, that there is a direct correlation between a Court that has removed itself from the inner branch conversation and a Court that has come to play such an outsized role in so many features and facets of our public lives, and that whether, you know, we might like the bottom lines that the current Court is reaching, we might hate them. The point is that there ought to be at least some consensus that institutionally this is not the healthiest thing for our system.

I'm picking up what you're putting down, Steve, and I think the average American absolutely does too. And I think they can understand this need for a broader conversation. Because even if you're like, yes, I'm super pro life, love that decision. I'm against race based affirmative action, love their decision. Even, even if those are all of your opinions, it is still important to have healthy institutions in the United States. And we cannot have them if we are just basing all of our conversations on ideology. You can ideologically agree on something. And the institution can be unhealthy. They're not mutually exclusive.

And if people take nothing else away from the book, or at least from our time together today, like that is the best summary of the bottom line.

Thank you so much for being here today.

[Sharon McMahon]

I could.

[Steve Vladek]

We could probably keep talking for like four or five hours. I could be like, what about pork? Producers v. Ross? Steve, I have so many things I want to talk about, but we will not subject the listener to our many hours long conversation about this.

Just means you have to have me back sometime.

[Sharon McMahon]

I will.

[Steve Vladek]

I we shall. This will not be the last time we meet. Steve, thank you so much for being here.

Thank you for having me, Sharon. This was a lot of fun.

You can buy Steve Laudick's book, the Shadow Docket wherever you like to buy books. Gotta get my plug in there for bookshop.org and you can also subscribe to his free newsletter called One First. It's just like Steve Vladek got substack.com he sends out a weekly newsletter about the Supreme Court. If this topic was interesting to you today, I bet you would love to subscribe. I'll see you soon.

[Sharon McMahon]

Thank you so much for listening to here's where it gets interesting. If you enjoyed today's episode, would you consider sharing or subscribing to this show that helps podcasters out so much? I'm your host and executive producer, Sharon McMahon. Our supervising producer is Melanie Buck Parks and our audio producer is Craig Thompson. We'll see you soon.

[Steve Vladek]

Mama Papa.