Jodi Kantor (4:06)

And over the past 10 years, this has really become a major part of the Court's business, including in some decisions over the past year or so that have awarded President Trump enormous leeway and power.

Michael Barbaro (4:23)

Increasingly, the Court has turned to this shadow docket. This is an exponential increase in the Supreme Court's use of the shadow docket more than anything we have ever seen before. They've used it 20 times so far

Jodi Kantor (4:36)

this year, and the year's not even over yet.

Michael Barbaro (4:38)

It's insane at the shadow docket.

Jodi Kantor (4:40)

And what critics have worried about is they've said the race to create fait

Sponsor/Announcer (4:45)

accompli is changing the speed and rhythm of all of these cases.

Jodi Kantor (4:51)

Why is the Supreme Court not moving at its usual careful, deliberate pace?

Michael Barbaro (4:56)

There's no problem in the abstract with

Adam Liptak (4:57)

the idea that the Supreme Court gets emergencies.

Michael Barbaro (4:59)

The problem we've seen in the last

Adam Liptak (5:01)

five or six years is the way the Justices are intervening.

Jodi Kantor (5:04)

And also you get this kind of back of the envelope reasoning from the

Adam Liptak (5:07)

justices two, three sentences.

Jodi Kantor (5:09)

Those decisions are not reasoned decisions. They don't tell us why. I mean, five paragraphs doesn't tell us why. Why is the Supreme Court not providing any reasoning for such major decisions? But the emergency docket or shadow docket is a dangerous thing. You run to the Court. You don't have full briefing, you don't have full argument. So critics have been concerned both about the quality of the rulings. Is it possible to issue a really solid ruling in such a shortened process? And also the lack of communication with the public.

Michael Barbaro (5:45)

Right, because these rapidly reached, barely explained rulings that emerge from the shadow docket raise a really important question. Is the country's highest court rushing to rule based on. Because we don't really know. Gut instinct, personal peak, partisan instinct, all the things that a slow, deliberate, judicious system is meant to avoid. We don't know.

Adam Liptak (6:14)

Well, defenders of the shadow docket, the emergency docket will say a couple things. One is that these kinds of orders have a long history. And that's true. The court has often interceded when it needs to move very fast, like in a death penalty case when someone's about to be put to death, or an election dispute where you need to know by Tuesday what the answer is. And also occasionally in discrete areas like abortion, the court has issued emergency orders, but it's not used the emergency docket to address major national policy initiatives. The second thing I'd say where the defenders of these orders would say is that they're temporary. They're not meant to conclusively resolve the case. They're just holding the status quo while the case moves through the lower courts, comes back to the Supreme Court. So they're nominally temporary, but as a practical matter, very often they're not only consequential, but conclusive. Finally resolving the matter. Because if the court says you can deport someone, or you can deport hundreds of thousands of people, or you can withhold aid money, or you can fire thousands of people, you're talking about shadow

Michael Barbaro (7:26)

docket cases at the Trump era.

Adam Liptak (7:28)

Yeah. These are not hypotheticals. These are actual cases. Those are very hard to undo. You can say it's temporary, but if they imagine it goes back to the court, and imagine the court says, you know what, actually the Trump administration was wrong, it's very hard to undo those rulings.

Michael Barbaro (7:44)

So even if they are temporary in nature, they are extremely meaningful in practice.

Jodi Kantor (7:52)

Yes. And so the question is, what is actually happening inside the Supreme Court with these cases? And Adam and I wanted to see if we could find out, and we did.

Michael Barbaro (8:08)

And what does that very tantalizing sentence actually mean? You did?

Jodi Kantor (8:12)

Well, the New York Times has obtained and has published 16 pages of confidential correspondence among the justices, meaning their private back and forth that reveal the origins of the shadow docket. Through these papers, we can eavesdrop on the Justices at the exact moment that they are abandoning time tested norms of judicial procedure and backing themselves into a new way of doing business.

Michael Barbaro (8:49)

That new way being the shadow docket.

Jodi Kantor (8:51)

Exactly.

Michael Barbaro (8:52)

So, Adam, give us the context for these documents that Jodi just mentioned.

Adam Liptak (8:58)

So, these documents concern a case in 2016 arising from President Obama's Clean Power Plan. The Clean Power Plan, you may recall, was Obama's attempt late in his second term to do something about climate change. He'd failed to get legislation through Congress. He instructed the EPA to issue regulations, and these regulations would fundamentally shift the American power system away from coal and toward cleaner sources of energy. This, of course, drove industry crazy and Red states crazy. And they challenged it, and that's not surprising. And they go to the D.C. circuit and they ask for two things. One, their big ask is to please hold this Clean Power Plan unlawful, unauthorized by Congress. But second, they ask, in the meantime, please halt it. Don't let it go into place. You freeze it for the time being while the litigation goes forward. And the D.C. circuit says on the first point, we'll set it down for a quick argument and we'll get ourselves in position to give you an answer on whether the program is illegal or not. On the second thing, though, we're not going to pause it. We're going to let the program start. And then the challengers, the states and business groups do something unusual. They go to the Supreme Court and say before any lower court has considered the lawfulness of the Clean Power Plan, they say to the Supreme Court, please halt this, please freeze this for as long as it takes for this litigation to go through the DC Circuit back up to the Supreme Court. In the meantime, the Clean Power Plan should not be happening. And everybody involved in the case knew that this was an unprecedented request.

Michael Barbaro (10:55)

And Jodi, this unprecedented request by those who do not want the Clean Power Plan from the Obama administration to survive arrives at a Supreme Court, if memory serves, that's pretty evenly split at the moment.

Jodi Kantor (11:10)

Correct. It's a 5:4 court that leans towards Republican appointed justices, but people from that era say the Supreme Court was really different back then. It was alive with debate. Justice Anthony Kennedy was a Republican appointee, but he was also the swing vote. And somebody from that era called him a, quote, persuadable person. You never knew exactly which way he would come out. And just before this, he had said yes to gay marriage.

Michael Barbaro (11:40)

Right. Even though he was a Republican appointee, he ends up being the somewhat surprising decisive vote in that case. All to say, this is a unpredictable Supreme Court where a lot of things are possible.

Jodi Kantor (11:54)

Exactly.

Michael Barbaro (11:55)

So how does this very evenly split court react, Adam, to this emergency request?

Adam Liptak (12:01)

Well, it arrives in the chambers of Chief Justice John Roberts. He's the justice who oversees the D.C. circuit. So these things go to him in the first instance. And in the ordinary course, what the lawyers involved in the case expected would happen was that he would simply deny it, deny the application, or maybe send it to his colleagues and they would collectively deny it. But what he does instead is he starts writing a memo telling the other Justices that they should take this very seriously.

Jodi Kantor (12:36)

And that sets off a five day sprint in which the justices are going to revise centuries of Supreme Court practice.

Michael Barbaro (12:54)

We'll be right back.

Sponsor/Announcer (13:04)

This podcast is supported by Vanguard. To all the financial advisors out there whose job it is to help your clients keep more of what they earn, Vanguard is here to help you with that. Vanguard is slashing fees again, this time for more than 50 of its funds. That's on top of big fee cuts they gave last year to investors in 87 of their funds. In an increasingly high priced world, Vanguard is staying true to excellence without expense. Not only do your clients keep more of what they invest, they get sophisticated, active and indexed bond funds at industry leading low costs and a fixed income team obsessed with consistent outperformance. Low fees give Vanguard's skilled bond managers more freedom to maneuver as they pursue outperformance. And low fees help you deliver greater value as an advisor. Top performance shouldn't come at a higher cost. Go see the record for yourself@vanguard.com impact that's vanguard.com impact all investing is subject to risk. Vanguard Marketing Corporation Distributor this wildfire season, Smokey Bear has a reminder for all of us. Only you can prevent wildfires. For more than 80 years, he's taught us how to prevent unwanted wildfires through his tips, like using the Drown Stir Drown feel method for putting out campfires. Every responsible action makes a difference. Learn wildfire prevention tips@smokeybear.com brought to you by the USDA Forest Service, your state forester, and the Ad Council.

Michael Barbaro (14:35)

So Adam and Jodi, we're now in the phase of this story where the Justices are exchanging these memos that you have unearthed over these five days. And Adam, let's start with this opening salvo from the Chief Justice, John Roberts. Tell us about his first memo.

Adam Liptak (14:52)

So this is a three page single spaced memo on letterhead that says the chambers of the Chief Justice. And he explains to his colleagues why he thinks the Obama plan needs to be halted. He says it's going to impose enormous burdens on states and on the coal industry. He says there's no time to waste because they're going to have to start complying with the requirements of the Clean Power Plan right away. He says that the law the President relies on to authorize this move, the Clean air Act of 1970, does not clearly give him that power. And the Court likes to say that unless a president clearly has the power, it runs afoul of the major questions doctrine and is no good. And he says the EPA has kind of tricked us not long ago and we're not going to let him do that to us again.

Jodi Kantor (15:55)

Hmm.

Michael Barbaro (15:55)

Tricked? How what does he say?

Adam Liptak (15:57)

Just a few months before all of this, the court had ruled against the EPA in a case involving mercury emissions. That case had been litigated over three years, three and a half years, the

Michael Barbaro (16:09)

normal Supreme Court process, in the normal

Adam Liptak (16:11)

Supreme Court process, and nobody had granted the challengers a stay, so they were starting to comply with the regulation. As the litigation goes forward, the Supreme Court rules against the epa. And the next day, the EPA official puts up a blog post and essentially says, very nicely ruled against this Supreme Court. But in the meantime, the rule has essentially gone into effect and your ruling doesn't mean very much. And that seems to drive the Chief justice crazy. He concludes at the end of the memo, the absence of a stay in that mercury case allowed the agency to effectively implement an important program we held to be contrary to law. And you have the sense that he's peeved, he's irked, and he's not going to let it happen again.

Michael Barbaro (17:01)

Roberts is telling his fellow justices in this memo, I don't like what I am seeing from the Obama administration when it comes to its efforts to. To regulate climate change. I think they're being sneaky and the traditional slow legal process is letting them be kind of sneaky when it comes to these regulations.

Adam Liptak (17:26)

Yes. And the Chief justice may be right that in retrospect, they should have paused the Mercury plan, which was pretty fast moving. But when you think about the Clean Power Plan, it. It's less clear that the court needs to act fast. And Justice Breyer says as much. In a memo he writes responding to Roberts that same day, he lays out the chronology of the Clean Power Plan, which doesn't require industry to do anything for six years and doesn't require total compliance until 2030.

Michael Barbaro (18:04)

Right. It's 2016, so that's quite some time.

Adam Liptak (18:06)

Right. So he's taking a completely different attitude than Roberts. He's thinking there's plenty of time to do this in the usual course. And he doesn't know why the court should be doing what he says is quite unusual. He says it's unusual for the court to issue a state of an agency's order during the time that the Court of Appeals is considering its lawfulness.

Michael Barbaro (18:29)

Right. As you mentioned earlier, the D.C. court, the circuit Court is looking at this.

Adam Liptak (18:35)

Right. So he's saying, let it play out. He doesn't understand what the rush is, and he would issue an order that basically says, D.C. circuit, get on with your business. Everybody else, if you run into problems, come back to us.

Jodi Kantor (18:50)

What's so interesting is the Chief Justice's reaction. He writes right back the next day. And his tone changes a little bit. He seems to be getting more irritated. He's very insistent that the Court needs to go ahead and block this. And I wanna read you one quote of his in particular, please. He says, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regulation ever imposed on the power sector. So let's translate that. He, in that first phrase, is just dismissing his colleagues procedural concern. Justice Breyer is saying, hey, this is

Michael Barbaro (19:38)

not how we work.

Jodi Kantor (19:38)

Really unusual, like there's something irregular about this. And the Chief justice is saying, essentially, I know, I know, I know. But it doesn't matter because this regulation is so expensive for states and the coal industry that we have to do something.

Adam Liptak (20:00)

So the sense of impatience that runs through this memo is really animated by the fact that the Chief justice is ready to rule now. He thinks the Court is going to grant review. He thinks the Court is going to strike down this clean power plan. And he doesn't understand why you need to let the process run out, because he knows what the answer is today. He even writes that he believes if the Court were to ultimately, at some future date, hear the case on the merits for real, the law would be, quote, highly unlikely to survive.

Michael Barbaro (20:38)

In other words, the Chief justice is saying, without going through any of the normal process of how the Supreme Court reviews a case deliberates, he's made up his mind and this Court is gonna find against this regulation.

Jodi Kantor (20:55)

Yes. And what's also revealing about this memo is that he mentions the EPA again. This memo makes it clear that he is truly in a power struggle with the Obama administration. He feels this agency has tried to sideline the Court, and he does not want it to happen again.

Adam Liptak (21:15)

Yeah. And he says that in so many words. He says, I am of the mind that a rule designed to transform a substantial swath of the nation's economy should be tested by this Court before it is presented as a fait accompli.

Jodi Kantor (21:28)

You know, in public, we're used to seeing the Chief justice strike a very even handed magisterial tone. Here he's acting as a bulldozer. He's saying to his colleagues, we should do something we have never done before and we should do it fast.

Michael Barbaro (21:45)

Mm.

Jodi Kantor (21:45)

And then Justice Elena Kagan, also a Democratic appointee, sounds an alarm. She files a memo opposing the Chief's stance that is even more direct. She says, the unique nature of the relief sought in these applications gives me Real pause. She uses the word unprecedented to describe what the Chief wants to do. And she also says, we need more time on this case. This is complicated. She writes on the merits. This is a difficult case involving a complex statutory and regulatory regime. So in other words, she's saying, this is weird. Are we sure we want to do this?

Michael Barbaro (22:30)

The gravity of this all is based on these memos starting to dawn on everybody involved.

Adam Liptak (22:38)

Right. And remember, Michael, how fast this is moving. We are now only three days into this discussion of this hugely consequential case, and the next person to speak up is Justice Samuel Alito, a Republican appointee. And he says that if the Court fails to act, it'll do damage to its own legitimacy, which is quite a big thing to say. He says a failure to stay this rule threatens to render our ability to provide meaningful judicial review, and, by extension, our institutional legitimacy, a nullity. So not only is it dawning on them that there's a real clash in the Court, not only is it dawning on them that they're moving in a different direction, they're also portraying this thing, or at least Justice Alito is, as an almost existential threat to the Court itself.

Jodi Kantor (23:38)

So you can see there that Justice Alito is echoing the Chief Justice's sense of insult. The Chief justice feels played by the Obama administration, the epa, and Justice Alito is saying, look, the Obama administration is trying to sideline us, to render us irrelevant.

Michael Barbaro (23:59)

Adam, I'm struck by the fact that both the Chief justice and Justice Alito are describing factors that are not really about the law.

Adam Liptak (24:10)

Right.

Michael Barbaro (24:11)

They're not about the Constitution. They seem to be rather focused on their grievances with the Obama administration, their fears about the place of a Supreme Court, questions of legitimacy. And those are not factors that I think of as, legally speaking, animating a decision.

Adam Liptak (24:32)

That's what's so extraordinary about these papers. They open a window on how the justices talk to each other, how frank they are really about their actual agendas. And so they're quite different in kind from their ordinary decisions, which are a kind of mask that portray the Court as confining itself to the facts, the relevant legal materials, and suggesting that they produce an inevitable legal result. Whereas the justices are human beings and they live in the world, and they take account of a lot of stuff. They don't say it in public, but it turns out they say it in private.

Michael Barbaro (25:19)

Okay, and what happens next?

Jodi Kantor (25:22)

So the whole thing, as predicted, comes down to Justice Anthony Kennedy, the swing vote. And on February 9, the fifth day of the debate. He sends a very short note. It doesn't say much at all. It's three sentences. He says he's voting with the chief, and that's it. It's over. The Supreme Court rules five to four, and within hours, the Supreme Court issues its order. In contrast to all this private debate that we've just told you about, it's just one paragraph. It's legal boilerplate. There is no explanation. All the court says is that they are blocking President Obama's signature environmental initiative.

Michael Barbaro (26:12)

So this is really a question to both of you. Now that you have been able to pry open this previously locked box of the birth of the shadow docket, now that you've gotten inside the first real case of this new era, what do you ultimately conclude from what you've seen?

Adam Liptak (26:36)

Critics of the shadow docket have always feared that the court can't do its best work under this kind of time pressure without good briefing and arguments and deliberation. And these memos vindicate that criticism. This is not the court doing a work. This is the court throwing ideas around, seeming to be motivated by grievances against a president that some of the conservatives view as activist, getting snippy with each other, and just in general not doing the kind of work we associate with the nation's highest court. So people think the shadow docket is problematic because the court is moving too fast on not enough information. And these memos support that criticism.

Jodi Kantor (27:40)

And to continue Adam's thought, they're not only deciding a very important case, what they're deciding on is a whole new way of doing business. They are disregarding time tested procedures that have kept courts upright for a very long time, and they don't seem to be considering the implications. It's true that Justice Kagan calls what the court is doing unprecedented, but nobody goes further and asks the question, well, if we do this, where is it going to lead?

Adam Liptak (28:23)

And where it leads is what we've seen over the first year plus of the Trump administration, where the court is deluged by emergency applications and is spending seemingly half its time on them and is often in very short periods of time ruling for the Trump administration on major questions like immigration, like agency power, like government spending, like transgender troops. And in contrast to the Obama experience, where the court shut down a major presidential initiative, these days, on the shadow docket, the court is mostly and indeed overwhelmingly allowing President Trump's initiatives to go forward.

Michael Barbaro (29:21)

So should we consider the shadow docket as encouraging the justices most partisan instincts?

Adam Liptak (29:30)

Political scientists will tell you that there's more partisan voting on the shadow docket than on the merits docket, that you're much more likely to see Republican appointees voting in favor of a Republican president and against a Democratic president than on the Court's usual docket than on its merits docket. And one example of why this is so and why people, when they're acting fast, might rely on their partisan impulses is in the Biden years, the court voted against Biden on three different emergency applications, which then eventually returned to the court. And the Court, when it had a chance to do the full three thing, to actually give it consideration and deliberation, voted for Biden in those three merits cases. So in short, the more time the Court has to consider cases, the more its partisan impulses are dampened.

Jodi Kantor (30:35)

Deliberation also produces trust in the court. And that's the second part, public trust. Correct. The elected branches get legitimacy because of elections. Right? We choose our leaders, but we don't choose our Supreme Court justices. And they stay in power for a very long time, their entire lives. And so the act of writing an opinion for a judge is the act of saying, here's why you should trust me, even if you disagree with this outcome, I'm gonna show you my work. I'm going to show you how I got to my answer. And so when the Supreme Court changes its way of operating and does that so much less, there is truly a risk to the legitimacy of the institution.

Adam Liptak (31:26)

And recall that the Supreme Court's public approval ratings, the public's trust in the court is testing all time lows. And its increasing reliance on the shadow docket to make major decisions is only going to make that problem worse.

Michael Barbaro (31:50)

Well, Adam and Jody, thank you very much.

Jodi Kantor (31:53)

Thank you, Michael.

Adam Liptak (31:55)

Thanks, Michael.

Michael Barbaro (32:03)

We'll be right back.

Sponsor/Announcer (32:08)

This podcast is supported by Vanguard. To all the financial advisors out there whose job it is to help your clients keep more of what they earn, Vanguard is here to help you with that. Vanguard is slashing fees again, this time for more than 50 of its funds. That's on top of big fee cuts they gave last year to investors in 87 of their funds. In an increasingly high priced world, Vanguard is staying true to excellence without expense. Not only do your clients keep more of what they invest, they get sophisticated active and indexed bond funds at industry leading low costs and a fixed income team obsessed with consistent outperformance. Low fees give Vanguard's skilled bond managers more freedom to maneuver as they pursue outperformance. And low fees help you deliver greater value as an advisor. Top performance shouldn't come at a higher cost. Go see the record for yourself@vanguard.com impact that's vanguard.com impact all investing is subject to risk. Vanguard Marketing Corporation Distributor this wildfire season, Smokey Bear has a reminder for all of us. Only you can prevent wildfires. For more than 80 years, he's taught us how to prevent unwanted wildfires through his tips, like using the Drown Stir Drown feel method for putting out campfires. Every responsible action makes a difference. Learn wildfire prevention tips@smokeybear.com brought to you by the USDA Forest Service, your state forester and the Ad Council.

Michael Barbaro (33:39)

Here's what else you need to know today. On Sunday, President Trump and Iran could not even agree on whether a new round of peace talks would occur this week. Trump claimed that high level U.S. officials would return to Pakistan for negotiations starting starting this evening. But a few hours later, Iran said it had not agreed to those talks. The back and forth encapsulated a weekend of dizzying developments. After Israel said it had reached a ceasefire with Hezbollah, Iran said that it would reopen the Strait of Hormuz. But it then tightened its grip over the waterway in retaliation, it said, for open week old US Naval blockade. Meanwhile, on Sunday night, a US Navy destroyer attacked an Iranian cargo ship that had allegedly defied that blockade.

Adam Liptak (34:37)

And this is a tragic situation. Maybe the worst tragic situation we've ever had.

Michael Barbaro (34:45)

In one of America's deadliest mass shootings in years, a gunman in Louisiana killed eight children in what police there are calling a case of domestic violence. The children ranged in age from 1 to 14 and were shot in multiple locations. The gunman was fatally shot by police during a chase. Today's episode was produced by Rob Zipko, Mary Wilson, Asta Chaturvedi and Michael Simon Johnson. It was edited by Devin Taylor. Contains music by Diane Wong, Marion Lozano and Alicia Ba? Itu. Our theme music is by Wonderly. This episode was engineered by Chris Wood. That's it for the Daily. I'm Michael Barbaro. See you tomorrow.

Sponsor/Announcer (35:56)

This wildfire season, Smokey Bear has a reminder for all of us. Only you can prevent wildfires. For more than 80 years, he's taught us how to prevent unwanted wildfires through his tips, like using the Drown Stir Drown feel method for putting out campfires. Every responsible action makes a difference. Learn wildfire prevention tips@smokeybear.com brought to you by the USDA Forest Service, your state forester and the Ad Council.