Podcast Summary: Talking Feds

Episode: Will the Supreme Court Betray the Constitution?
Host: Harry Litman
Guest: Prof. Kate Shaw (University of Pennsylvania, Princeton, former Obama White House Counsel’s Office, ex-clerk Justice John Paul Stevens, co-host of Strict Scrutiny)
Date: February 12, 2026
Duration: ~32 minutes

Episode Overview

This episode examines the Supreme Court’s performance and direction at the midpoint of the 2025-2026 term — one year into the second Trump administration. Harry Litman and constitutional law scholar Kate Shaw analyze key themes: the rise and effect of the shadow docket, the Court’s posture toward Trump and presidential power, the treatment of lower courts, fault lines among the justices, and intensifying calls to rethink or even rebuild the institution itself.

Key Discussion Points & Insights

1. The Supreme Court’s Evolving Role and the "Shadow Docket"

[01:21–05:08]

• Traditional vs. “Shadow Docket”: Shaw highlights that public and academic attention has shifted from only the Court's formal docket (cases with full arguments and opinions) to also include the "shadow docket"—emergency orders with huge practical impact.
  • Quote [01:45] – Kate Shaw:
    “The shadow docket is as important, if not more important right now, than the kind of conventional docket of argued and decided cases.”
• Practical Impact: Shadow docket decisions set provisional rules that often persist for a long time and shape policy—even without formal merits review.
  • Quote [04:12] – Harry Litman:
    “I can’t think of a time when it has been undone.”
• Possible “Two-Step” for Trump: Shaw raises concern that the Court may grant Trump temporary shadow docket wins, only to later rule differently on the same issues once a Democrat is in the White House.
  • Quote [04:13] – Kate Shaw:
    “It’s possible the Court hands Trump a lot of these temporary short-term wins on the shadow docket… and then when the Court actually has the opportunity… when it’s a different president, it sees things a little differently.”

2. Backlog and Strategic Timing of Major Cases

[05:08–06:28]

• The Court’s term is increasingly “backloaded,” with the biggest cases’ arguments and decisions come late in the session, leaving public understanding in suspense.

3. Case Study: Trump v. Illinois and the National Guard

[06:28–09:30]

• Case Summary: Trump’s use of the National Guard to aid immigration enforcement in Illinois rested on a claimed statutory authority for deploying “regular forces” during rebellion or to enforce federal law.
• Court's Response: Instead of resolving tough constitutional questions (whether to defer to the President’s claim of necessity), the Court sidestepped by adopting law professor Marty Lederman’s amicus argument that the statute may not even apply to the National Guard.
  • Quote [07:07] – Kate Shaw:
    “It wasn’t totally clear what the statutory basis… Neither was remotely persuasive… It seemed quite contrived…”
  • Quote [09:30] – Harry Litman:
    “…what a quixotic moment. And for Marty Lederman, a toilet. It was a single amicus for himself and it changed a really important case.”
• Implication: Shaw cautions against reading this as a sign the Court will meaningfully check Trump, since the Court avoided tough issues.

4. Supreme Court’s Disrespect Toward Lower Courts

[10:19–14:44]

• Patterns Identified: Shaw argues the Supreme Court is showing substantive and rhetorical disrespect to district courts, especially in its shadow docket proceedings.
  • Substantive: Rushing past well-developed lower-court opinions (often against Trump) with little review.
  • Rhetorical: Publicly chastising lower courts for ignoring precedents or misinterpreting unclear Supreme Court emergency rulings.
  • Quote [11:00] – Kate Shaw:
    “It is physically impossible for the Court to have carefully reviewed the… trial transcripts… And yet they just basically say, no, this decision is stayed.”
  • Quote [12:48] – Kate Shaw:
    “There’s also the rhetorical disrespect… they are doing it often with this sort of contemptuous tone. They are chastising lower courts…”
• Underlying Partisanship? Shaw links this pattern to the current Court’s partisan composition, suggesting it feels more loyal to the appointer (Trump) than to the judicial system as a whole.

5. Looking Ahead: The Biggest Cases Yet to be Decided

[15:20–21:12]

• Tariffs Case: Concerns the lawfulness of Trump’s sweeping new tariffs; likely to be significant symbolically. Shaw predicts Trump may lose but can find workarounds.
  • Quote [15:35] – Kate Shaw:
    “A lot of people… thought… there was a real chance that the court was going to invalidate some or all of the tariffs…”
• Removal of Agency Officials: Includes cases on whether a president can fire officials at independent agencies at will (FTC, Fed). Shaw expects at least part of a longstanding precedent (Humphrey’s Executor) could fall, ending much agency independence.
  • Quote [18:09] – Kate Shaw:
    “If Trump wins, then the Court will almost certainly overrule this 90-year-old super precedent…”
• Birthright Citizenship Case: Trump’s executive order ending birthright citizenship—long accepted as a constitutional guarantee—is now before the Court. Shaw predicts probably a loss for Trump but warns not to be complacent given recent surprises.
  • Quote [19:23] – Kate Shaw:
    “…if you were born on American soil, regardless of the status of your parents, you are an American, full stop… This executive order purports to override all of that…”

6. Can a Conservative Supermajority Sometimes Surprise? Court Fault Lines

[21:12–27:39]

• 6-3 or 3-3-3? The Court is still largely a 6-3 conservative majority, but internal divisions matter, especially for close or precedent-defying questions.
  • Notable distinctions: Barrett, Kavanaugh, and Roberts vs. Gorsuch, Alito, Thomas.
  • The Democratic appointees (Kagan, Sotomayor, Jackson) have different approaches: Kagan tries for consensus, while Jackson now speaks largely to the public.
    • Quote [23:50] – Kate Shaw:
      “Justice Jackson… seems… as though she has almost given up on trying to persuade her conservative colleagues and is speaking directly… to the public.”
  • On the conservative side, Roberts has shifted to be a “predictable pro-presidency vote… so far” despite earlier willingness to check Trump’s excesses.
    • Quote [25:41] – Kate Shaw:
      “…what has been most surprising… is what a predictable pro presidency vote John Roberts has seemed to be so far.”
  • Gorsuch sometimes diverges, especially on rights and LGBT issues.
    • Quote [26:38] – Kate Shaw:
      “He had this kind of maverick independent reputation… that’s still true on some issues, obviously, like Native American law questions, maybe on sexual orientation and gender identity…”

7. Debating the Legitimacy and Future of the Court

[27:39–31:55]

• Extreme Critiques: Reaction to a provocative piece (Sam Moyn & Ryan Doerfler) calling for the Court’s rejection and replacement due to lost legitimacy.
• Shaw’s Take: Acknowledges “lawless” conduct and forfeited “presumption of good faith” at the Court—but cautions against plunging into institutional “void” without any check on presidential power.
  • Quote [29:15] – Kate Shaw:
    “…sympathetic to the argument that… this institution has forfeited any presumption of goodwill and good faith that we should afford to government institutions…”
  • Quote [31:31] – Kate Shaw:
    “I think that along parallel tracks… we need to be focused on reforming this institution… and also to think quite seriously about… structural reforms: term limits, jurisdiction stripping, adding justices. All of those things should very much be on the table…”

Notable Quotes & Memorable Moments

• Shadow docket’s influence:
  “The shadow docket is as important, if not more important right now, than the kind of conventional docket of argued and decided cases.” – Kate Shaw [01:45]
• Disrespect for lower courts:
  “There’s also the rhetorical disrespect… they are doing it often with this sort of contemptuous tone. They are chastising lower courts…” – Kate Shaw [12:48]
• Concerns about Presidential Power:
  “The defining question of this moment is: are there real constraints on the President?” – Kate Shaw [15:35]
• Court legitimacy debate:
  “…sympathetic to the argument that… this institution has forfeited any presumption of goodwill and good faith… but… we need to be focused on reforming this institution…” – Kate Shaw [29:15, 31:31]

Significant Timestamps

• Shadow Docket and its Consequences — [01:45–05:08]
• Trump v. Illinois & National Guard — [06:28–09:30]
• Supreme Court’s Treatment of Lower Courts — [10:19–14:44]
• Upcoming Landmark Cases — [15:20–21:12]
• Court Internal Divisions — [23:27–27:39]
• Debate Over the Court’s Legitimacy — [27:39–31:55]

Conclusion

The Supreme Court’s current term is marked by uncertainty, enormous stakes, and a profound test of the institution’s willingness—or inability—to constrain presidential power. The rise of the shadow docket, disregard for lower-court process, and possible unraveling of longstanding precedents signal a period of instability and partisanship. Despite some expected limits, the Court’s overall pattern favors presidential power and lacks traditional judicial collegiality. As academics and the public debate the Court’s legitimacy and future, hosts and guests agree: serious reform is needed, and nothing should be taken for granted in this era of constitutional stress.