A (3:21)

And explain that a little bit, because it's true, you know, the general. The timeline of judicial decisions is so much longer. And so these sorts of temporary, just for now kinds of decisions. First, because the court is often saying, here's who's likely to win. And then because a shadow docket decision can stay in place for so long, they can be in effect really almost as consequential as a full merits briefing, of course, without the merits and without oral argument and the like.

B (3:56)

Right. So the court likes to say, well, this is, you know, provisional and temporary, these rulings on the shadow docket. And so what's the fuss, essentially. But it is functionally setting a status quo that often cannot be undone or upended once in court.

A (4:12)

I can't think of a time when it has been undone.

B (4:13)

Seriously? Yeah, no, I mean, I think, look, and the reason I'm saying it's at least conceivable is because I cannot rule out the possibility that the court, and this is a very cynical take, I think more cynical than I'm usually inclined to be. But I think it's possible that the court hands Trump a lot of these temporary short term wins on the shadow docket slow walks, or sometimes these cases get resolved and never actually end up at the court for final merits resolution until there's a future president and that president is a Democrat. And then when the court actually has the opportunity to consider whether the president really possesses this power or not, turns out it sees things a little differently. So I think that is, again, a cynical but very possible kind of two step in which the court gives Trump these temporary victories, but actually issues considered rulings down the road when it's a different president who stands to benefit or potentially to lose from the court's rulings.

A (5:08)

And that goes to the heart really, of how you see the court. And we'll return to that. And I just wanted to add one other way, where the term this is an artificial break, because it's more and more the case that even though we're halfway through the term, the term is so backloaded and kind of everything issues in May and June. But let's start with the good news, which is Trump versus Illinois. So that was a case a lot of us, I think you and I discussed it, were really worried about because it presented an opportunity for the court to greenlight really expansive deferential powers, by which I mean, by deferring to the president, it could have. Okay. Powers that he could then use in many pernicious ways, especially with the election. They didn't. And I wonder your thoughts about that case. And then more generally, does it suggest to you, does it establish for you that the court, with, for all the victories it provides, Trump does have its eye on the ultimate, you know, Constitution at existential stakes and will police that ultimate boundary.

B (6:28)

So maybe to say a word about this Trump versus Illinois case. Right. So the case is about the president's, sort of narrowly about the president's federalization and deployment of the National Guard, ostensibly to support immigration enforcement. So it arose out of Illinois, but presented a similar issue as a case out of Los Angeles and one out of Portland where the president had sent members of the National Guard not to directly enforce the immigration laws, but to essentially be present around and support CBP and ICE and the other actual immigration enforcing entities.

A (6:57)

And if I can, based on a finding that he had made that there. Well, it could have been one of two, but one of them certainly was there's a rebellion in the land. Right, right.

B (7:07)

Or that, you know, these, that the federal officials were essentially unable to actually enforce the federal law. And whichever basis, and I think you're right, it wasn't totally clear what the statutory basis on which the president was relying was. Neither was remotely persuasive. The immigration enforcement was happening just fine. You know, there was no indication that either federal officials or state and local law enforcement were unable to actually preserve order. And so it seemed quite contrived the basis on which the president sought to, you know, use the National Guard. And so there was maybe going to be a hard question that the court was going to have to answer, which is how closely will it scrutinize if the president makes a representation that he believes either, you know, that there has been a rebellion or that the enforcement of the federal law requires the deployment of the National Guard? What kind of review is the court going to give to that kind of determination? That was the question in the case. But the court didn't have to answer it because it took an off ramp. And the off ramp was one essentially served up to mix metaphors to the court by law professor Marty Lederman, who basically said, before you even get to this question of whether these statutory requirements are satisfied and you know, whether the President has a real basis for making the findings that he's made, there needs to be. There's a question about whether the kind of regular forces, which is a term in the statute, applies to the National Guard at all, or that's just the military, like the traditional conventional military. And no one has identified that open question. And the answer likely is the President actually can't use this statute at all in the way he has because there has been no finding because the statutory term doesn't refer to the National Guard at all. And the court basically said, yeah, that's likely. Right. And so we're going to find that essentially the statute was not properly invoked. And so we're not going to get to these harder down the road questions. And I do think that had it addressed those questions, was the statute satisfied, did the President have a basis those would have had potential implications both for the President's future deployment of the National Guard under this particular statutory authority and maybe more broadly for judicial review of presidential action and presidential determinations. But I actually think it's given the way the Court resolved this case, I don't want to read too much into it in terms of the Court's broader posture as to the President and his powers.

A (9:30)

Fair enough. And it was an unusual offer. And first, as an aside, what a quixotic moment. And for Marty Lederman, a toilet. It was a single amicus for himself and it changed a really important case. But I also, yeah, I. We had seen a series of decisions and some of them just suggested, without really fleshing it out, deference is deference. And if he says rebellion and a couple people are jumping up and down, that counts. And I was buoyed by the opinion of Judge Immerget, a district court judge in Portland, who said, well, we defer, but not if it's untethered to the facts. And will the Court take some kind of line like that? Actually, since I mentioned a district court judge, a theme you've tracked in particular, and sort of surprised me, is the real kind of boorish disrespect the Supreme Court seems to have had for the lower court judges. You know, it's one judiciary, the Chief justice sits atop it, and you kind of think of them as the A little bit the home team, and you're looking out for the judges. Now, there have been a distinct pattern of less pro Trump decisions among the district court judges. But, man, the court, especially in the shadow docket, seems really to have slapped around district court judges repeatedly. Why isn't the court more protective of them? And what do you make of that?

B (11:00)

I agree that it has been a striking and deeply puzzling aspect of the court's work over the last year. So I think that that has taken two forms. One is there has just been a demonstrated disrespect for the lower courts in the way the court has resolved these emergency applications on the shadow docket. It is physically impossible for the court to have carefully reviewed the, you know, hearing and trial transcripts, in some instances, full briefing from below in the way these district courts have done in case after case in which they have largely found against the lawfulness of administration action.

A (11:34)

Not very comprehensive, thorough, meticulous opinions, some.

B (11:38)

Of them following, right. Hearing hearings and testimony. And so these careful, reasoned opinions get issued by district courts appointed by presidents of both parties, you know, both Bushes, President Reagan. Right. Like these, these are, these are many of them, kind of stalwart conservatives on the federal bench who have looked at the facts and the law and have concluded that the President's actions cannot stand. And in case after case, the Supreme Court, after what just has to be a cursory examination of what happened below, because just time is finite and they don't have the resources or the hours and minutes to do the kind of review that these district courts have. And yet they just essentially, honestly, without a word of explanation, sometimes with a couple of sentences or paragraphs, but sometimes not a single word of explanation, basically just say, no, this decision is stayed, right? We'll grant a stay.

A (12:33)

And usually, I hate to, under a legal standard that makes them have to really, because a stay has been entered, they're supposed to really find some kind of extreme error below. And so just the mere fact. You're right, but. And I think you were getting to.

B (12:48)

Another way that's on the substance, just the disrespect that is manifested by the way they are kind of cursorily just deciding not we disagree with these careful conclusions of lower courts. But then there's also the rhetorical disrespect, right, that I think we're seeing, which is not only are they kind of casually countermanding these careful decisions made by lower courts, but they are doing it often with this sort of contemptuous tone. They are chastising lower courts for having, you know, reached the wrong decisions or not sufficiently respected other shadow docket orders that the court has handed down. So this was one particularly striking case involving a district judge, very respected District Judge Young in the District of Massachusetts. And this is that wasn't a concurring opinion, but it was essentially the court saying, you have completely ignored your role in a system of vertical precedent by not understanding that a previously unreasoned shadow docket order also controlled this case. It was a different statute. It was a different agency. There was a lot of reason for the district court not to have understood itself to be bound by this prior order. And yet the court just took the district court to task for doing it. So I think that the disrespect, again, has been both substantive and rhetorical. And I have also been pretty shocked by it, in part because not always to the good, but there is this kind of clubby insider ness that federal judges, you know, will sometimes kind of give off that, well, we're all on the same team, we're all on the bench. And I think it is striking that the Supreme Court has seemed to be, you know, demonstrating some allegiance to something different from the judiciary. And sometimes it feels like a partisan allegiance to the Republican president whose party appointed a super majority of the justices. And again, I know that sounds cynical, but it's hard to read what we have seen seen in any other way.

A (14:44)

Yeah. And it's not as severe or you could say ignorant as is the party line that you hear from the administration. But it's a much it does seem to follow in that kind of overall trend. And you know, district court judges, they issue opinions, then they're out there, they can't really defend them in any way. And they look at a minimum, I think, I'm sure you know this from speaking to them for some kind of deferential. It's a hard job. The learned district court judge, and really they're sometimes almost humiliated by the court. It's really something.

B (15:20)

I agree.

A (15:22)

Okay, so let's look ahead to the second half of this term. What are the two or three opinions or even arguments? Because as you mentioned, at least one big case hasn't been argued that you're, excuse me, most focused on.

B (15:35)

Well, from, you know, these are all presidential power cases. There's one I'll mention that isn't. But that I think is the kind of most important term of the theme in terms of argued cases and also the theme in terms of the shadow docket, that is the kind of defining question of this moment is are there real constraints on the President? And there, you know, many of the constraints that have traditionally functioned are not functioning well or at all one year in. So we'll see how much of a constraint the court is. There is the case about the lawfulness of the President's sweeping worldwide tariffs. I think that a lot of people, myself included, thought coming out of the oral argument that that was pretty rough sledding for the administration and there was a real chance that the court was going to invalidate some or all of the tariffs. That raises difficult implementation questions about potential refunds. But the court, I think, could find a way to finesse that aspect of the case. And I also think the way that the President seemed to be kind of truthing through his feelings after the oral argument suggested to me that he believed, and his advisors believed that he was, you know, likely to lose that case. So I think that there's a good chance of that. I think that will be symbolically, really important. The President cares a tremendous amount about tariffs, but functionally, I think that his people have been hard at work figuring out how to reinstitute many of the same kinds of tariffs, even if not identical tariffs, even if they lose the Supreme Court case. So I think it may not amount to an enormous amount, although it will matter a lot what they say about presidential power, presidential determinations under statutes, there are the two cases about how much power the President has to fire senior officials, including in what were once known as independent agencies, but maybe no more when these cases are decided, at least for the most part. So the President has summarily fired a lot of officials who have statutory protection against being fired, except for some cause. And one of those officials, former Federal Trade Commission Commissioner Rebecca Slaughter, filed a lawsuit. She won below and how her case was argued in December. And the big question there is, does the President have the power to fire her and other independent agency heads? And will the court overrule the 1935 Humphreys executor decision, which said the President did not have complete power to fire heads of independent agencies? If Congress passed statutes giving some protections to these agency heads, if Trump wins, then the court will almost certainly overrule this 90 year old super precedent that has sort of structured a lot of the way that government has operated for nearly a century.

A (18:04)

And then really for law professors, this is like revolutionary. It is Humphreys executor, just Chevron rip.

B (18:09)

It out, which was a huge deal for those of us who toil in constitutional law and administrative law. And Humphreys executor is a close second. And then we have the related case of his effort to fire Lisa Cook. But that is one case where on the shadow docket, the court has ruled, at least temporarily, against the president. He allowed. The court did. Allowed. Sorry, let me back up. Trump purported to fire Cook. The court ruled against his attempts to fire her immediately and said essentially she could stay in her position, as the lower courts had found she was entitled to while the litigation proceeded. And so that argument was held last month about whether the president has the power to fire a member of the Fed. And it's a little bit of a different argument because he's not saying he has the power absolutely to remove her for any reason or no reason. He says that there has been some cause, which in, you know, his telling is that she committed this alleged mortgage fraud that official Bill Pulte and his administration has unearthed before she was appointed, well before she was appointed, and conveniently, a very similar allegation as he has levied against a number of other officials that he clearly wishes to either remove or antagonize. So I'd say that pair of cases, the tariff cases, the birthright citizenship.

A (19:19)

That'S coming up, and a lot of people are focused on it. Can you kind of set that up for us?

B (19:23)

Sure. Well, one of the very first acts the president took upon, you know, taking office for the second time, was to issue an executive order that purported to end birthright citizenship. Right. This notion that if you were born on American soil, regardless of the status of your parents, you are an American, full stop, that many people believe hasn't really seriously been ever questioned that that is a direct. It flows directly from the first sentence of the of the first sentence of the first provision of the 14th Amendment, which says all persons born or naturalized in the United States, subject to the jurisdiction thereof, are citizens of the United States and the state they're in. And again, pretty uncontroversial since 1868. And there are Supreme Court opinions and statutes passed by Congress and lots of executive action, all built on this notion of birthright citizenship. This executive order purports to override all of that and to end birthright citizenship. And, of course, that was challenged immediately. And last spring, the court actually heard an argument about an aspect of that executive order, not about its underlying constitutionality, but about the power of district courts to issue what are called nationwide injunctions blocking the application of an order like this. As to anyone, not just the, you know, parties to the suit or some, you know, certified class of people in that case, the court really limited the ability of district courts to issue this nationwide relief, but didn't say anything about the substantive constitutionality of this order. That's what's now before the court. And so in April, we'll have arguments about that. Does the president have the power to end birthright citizenship? And that'll be an enormous that will likely be decided by the end of the term there, too. I think there's a very good chance the president loses, but I wouldn't rule anything out, in part because I now have some humility when it comes to this court. I didn't think the president had much of a chance of succeeding in his extravagant immunity arguments in Trump versus United States, and he won there. So I don't think we can rule anything out safely. That said, I think it's likely the president loses. The birthright citizenship case.

A (21:12)

Yeah, and I concur. And the same thing probably with the Fed, but just in general. The tariffs case, for example, some of these have been pushed so hard and are coming up from such extreme opinions below. And there'll be some commentators who say, see, the common conception that the court is a super majority in Trump's pocket isn't really the case. But you really have to think about the tariffs case, for instance. Such a good example to me because it's it totally encompasses congressional power and they've permitted him to run riot over it and then a very extravagant claim on his part. I'm Michael Waldman, host of the Briefing podcast. I'm a former White House speechwriter, a lawyer and a constitutional scholar. And I'm president of the Brennan center for Justice. We work to repair and strengthen American democracy, from gerrymandering to abuse of presidential power, from Supreme Court reform to congressional corruption and more. What fun. You're going to hear new ideas in this podcast and you're going to hear about the strategies and the legal and political fights that will shape the next phase of American politics. If you care about our democracy, the briefing is a podcast for you. I want to talk briefly about where you think the court is now in its fault lines at the end of last term. A lot of focus on Justice Barrett. Is she easing away from the center? I think a less told story, but a true story, is Justice Gorsuch kind of listing right. Obviously, there's a big divide you have on your shirt. There is, of course, a dissent and that likely comes from one of the three progressive members of the court. And there's a big divide between them. And as you say, a super majority but do you see a smaller but real practically important divide between Kavanaugh, Roberts and Barrett on the one hand and Gorsuch, Thomas and Alito on the other? Do you see it essentially as a 3, 3, 3 court, a 6, 3 court. What are the fault lines now?

B (23:27)

Yeah, I mean, it is more of a 6, 3 court than anything else. But there are divides both on the right and the left of the court. Right. So I do think that it's that, you know, Jodi Cantor had a really interesting piece in the Times maybe a month or so ago about some of the divisions just among the three Democratic appointees. They seem to be taking pretty different tacks as to their conservative colleagues. Justice Kagan, real consensus builder, Justice Jackson.

A (23:50)

Seems, and a real pro government type, it seems to me.

B (23:53)

Yes, absolutely. And Justice Jackson, I think, seems it sort of feels in some of her writings and her interventions at oral argument as though she has almost given up on trying to persuade her conservative colleagues and is speaking directly and quite powerfully a lot of the time to the public. And, you know, and I think it sounds again from Kantor's reporting, like that is alienating some of her more conservative colleagues. So that's a difference that I, you know, I say to my podcast hosts all the time, I am glad I don't have to be, you know, I think they have an incredibly difficult job, the Democratic appointees, and they are making, I think, principled and defensible different decisions about how to do this work of trying to hold the line and preserve constitutional democracy in a very, very difficult circumstance. So that is the sort of left kind of wing of the court. But you're right, there are sort of fissures on the right. I think that in some ways, the thing that has been most surprising to me about the court in the age of Trump 2.0 is what, what a predictable pro presidency vote John Roberts has seemed to be so far. Again, we don't have the big decisions yet, but we have some. But yeah, but we have what we've seen on the shadow docket. And he was occasionally and importantly willing to rule against Trump in the first Trump administration Census, citizenship, rescission of Deferred Action for Childhood Arrivals. I mean, those were big moments. And, you know, I think that on the eve of inauguration last year, he and Barrett joined the liberals in voting against Trump's effort to block himself from even being sentenced. Remember, in the state, criminal convictions and then a couple of other votes that he has cast against the president. But at least the tenor of oral arguments and what we've seen so far has suggested to me that somehow seeing this year of kind of, you know, unbridled assertions of presidential power has made John Roberts more rather than less likely to side with Donald Trump. And I cannot for the life of me explain or understand why that is. But I don't think he's ungettable always. Like, I think he will probably rule against Trump in some of the cases we've been talking about. And I think that Barrett in some ways is even more likely to. I mean, I think she had an interesting distinct writing in the Trump immunity case that staked out a far more measured position than her conservative colleagues. She voted in an important administrative law case with her Democratic colleagues last term two terms ago. Rather kind of under the radar, but really important and also kind of respectful of government in the same way that you were just talking about Justice Kagan being Justice Barrett seemed to be, and I think you're right that Gorsuch has drifted.

A (26:38)

Right.

B (26:38)

In certain ways. He had this kind of maverick independent reputation when he joined the Court. I think that's still true on some issues, obviously, like Native American law questions, maybe on sexual orientation and gender identity. And we haven't really talked about those kind of more culture and individual rights cases as opposed to structural and power cases. But on those, he of course, authored the Bostock decision finding sexual orientation and gender identity discrimination are illegal sex discrimination under federal anti discrimination law. So it's, I think he seems a little more open minded than the others in the argument about trans student athletes that was argued last month. So I think he is maybe more open minded in a different category of cases. But I think that individual issue areas might see one or more of the conservative justices being open to joining the Democratic appointees. But it is still, I think, like we need to be kind of clear eyed about the fact that this is still a very conservative 6:3 majority in most of the most important cases that the court will hear. Yeah.

A (27:39)

And you know, for Roberts, it's a really different conversation. I hope we can have it someday. But there does sometimes seem to be two John Roberts. And when there are cases, the stakes seem high. For the Republican Party, it's sometimes different. Justice and I just wanted to say about Barrett that she came into sort of age in a different path from the other conservative, not the sort of same kind of Federalist society sort of silo. So much more to talk about another time. I want to end, though, by giving you a chance to discuss the Court and this critique we've adverted to, but from the other side. Because I think in the days in which we live, I feel that sometimes you, Professor Vladek, others are taken. So often you're in a critical mode and just saying the truth, which is it is a super conservative majority. But I wanted to serve up to you this recent article in the Guardian by a Harvard law professor, Yale law professor, that basically says it's time to accept the U.S. supreme Court is illegitimate and must be replaced. Kind of making noise within the academy a little. I wonder what your thought is about that story. Sort of very radical critique and where you stand and what you think is the right way to think about the court, even with some very rough decisions over the last several years as a political institution in the democratic rule.

B (29:15)

Yeah. So I mean, and that's a piece by Sam Moyn and Ryan Doerfler, and you know, the headline and the body of the piece is quite provocative and quite deliberately. And I do think that there is a bit of a divide among court critics, which is, you know, kind of reform versus rebuild from the ground up like that the institution, and that's obviously the latter is what this piece channels. This is an institution that has shown itself to be utterly beyond redemption. And it is maybe affirmatively to collude with sort of destructive forces, to even consider questions of reform as opposed to destruction and kind of reconstruction or rebuild. I think that those are both important, important viewpoints. Honestly, I think that I am, I am very sympathetic to the argument that there is that this institution has forfeited any presumption of goodwill and good faith that we should afford to government institutions and that they have acted in ways that are profoundly lawless. And we should be candid about that assessment. So I do agree with that as a descriptive claim, not in every instance, but in many, many moments over the course of the last year, two years in particular, although I think that the critique goes back further, but I also think that it is a critique that threatens to plunge us into a void that I think could be a very dangerous place if in the period before some kind of rebirth or reconstruction, we are without anything that calls itself and looks like a court to act as a check on powerful political forces like the president. And so I think that it is an academic argument that packs a real punch and has a lot of force. But I think that, you know, I'm an academic, so I'm not using academic or like as a pejorative, but I think that we have the court, we have at the moment, and I think that along parallel tracks actually we need to be focused on reforming this institution on the view that it will continue to serve as a court. Like this is the Court, and also to think quite seriously about the kinds of structural reforms that are the sort of practical version of that kind of existential critique, which is what would a Democratic majority, Congress and Democratic President need to do and do quickly in order to actually bring about the kinds of structural reforms? Term limits, jurisdiction stripping, adding justices. All of those things I think should very much be on the table because I think it's a court that is badly in need of reform. So I'm sorry to a little bit refuse the question, but I guess I think it's not an either or. But those are two really important critiques and two important tracks that actually can be pursued in tandem.

A (31:55)

Kate Shaw, Great as always to be with you and talking about the Court and even broader issues. Thanks so much.

B (32:01)

Thank you so much for having me.

A (32:05)

Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to I on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube, where we are posting full episodes and daily updates on top legal stories. Check us out on substack harrylitman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Fez has joined forces with the contrarian. I'm a founding contributor to this new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie, Dawn Griffin, David Lieberman, Hansam Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants. By Akshaj Turbailu Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Dio llc. I'm Harry Littman. Talk to you later.