SCOTUS’s Shadow Docket, Calibrated + Steven Vladeck

Summary

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The Gist – "SCOTUS’s Shadow Docket, Calibrated" with Stephen Vladeck

Date: October 11, 2025
Host: Mike Pesca, Peach Fish Productions
Guest: Stephen Vladeck, Professor of Law at University of Texas, author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic

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Episode Overview

This episode of The Gist unpacks the controversial and increasingly consequential practice by the U.S. Supreme Court known as the "shadow docket." Through a thoughtful balance of skepticism and alarm, host Mike Pesca interviews Professor Stephen Vladeck, a leading scholar on the subject. The conversation aims to clarify what the shadow docket is, explain why its recent use is alarming, and provide a nuanced perspective on the implications for American democracy. Pesca also addresses public anxiety around the shadow docket, striving to put widespread worry in context—neither dismissing nor catastrophizing developments at the Court.

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Key Discussion Points & Insights

What is the Shadow Docket?

• Definition: Decisions made by the Supreme Court outside its regular procedures—often urgent, unsigned, unexplained, and without full briefing or oral argument ([07:39]–[09:22]).
• Historical Use: Historically used for technical procedural matters or true emergencies, like last-minute stays of execution ([12:31]–[16:14]).
• Recent Shift: Since ~2017, the shadow docket has been used “almost routinely for decisions with massive impact,” often with significant political and social consequences ([09:22] Vladeck; [16:14]).

“It's now become almost routine for the Court to use these unsigned, unexplained orders in ways that have massive impacts on our lives.”
—Stephen Vladeck ([09:22])

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Why Should We Be Concerned?

• Lack of Transparency & Precedent: Shadow docket orders often come with no reasoning, making it impossible to know the principles behind decisions—undermining precedent and judicial legitimacy ([10:58]; [11:23]).
• Partisanship: Data and patterns show these shadow docket rulings tend to benefit one political side, notably Republican policy objectives, particularly during and after the Trump administration ([12:31]–[19:55]).
  • Example: Trump administration won 84% of its shadow docket requests, often on issues expanding executive power—raising concerns that these are not neutral legal judgments ([36:25]).
• Precedential Impact: Even without explanations, these rulings now shape future law and practice ([18:08]).
• Democracy at Stake: These decisions influence elections (e.g., Alabama redistricting), immigration policy, abortion access, and more.

“The quintessential definition of judicial power...is its ability to provide principled justifications for its decision making. Not because we're going to agree with the principles...but because we're going to agree that they are principles. Here...the Court is issuing these rulings with massive impacts and with no principles, or at least with no articulated principles, which sure looks a lot more like an exercise of political power than judicial power.”
—Stephen Vladeck ([09:22])

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Case Study: Alabama Redistricting

[13:18]–[16:14]

• After the 2020 census, Alabama created district maps challenged as violating the Voting Rights Act.
• Two lower courts (including Trump-appointed judges) blocked the maps.
• Supreme Court, in an unsigned shadow docket ruling, allowed the contested maps to stand for the 2022 election—a move that arguably influenced House control.
• Even Chief Justice Roberts dissented, saying “this is not the way to do it.”

“In an unsigned, unexplained order...the court said, sure, go ahead, use your illegal maps. Without telling us why.”
—Stephen Vladeck ([13:18])

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The Evolution and Abuse of the Shadow Docket

• Historically: Circuit justices would decide emergencies, often with explanation—even when ruling against their personal beliefs ([18:08]; [24:58]).
• Recent Practice: Full court decides most emergency applications, often without oral argument, creating the perception (and sometimes reality) that decisions are partisan ([19:38]).
• Irreparable Harm Standard: Emergency intervention is meant only for cases with irreparable harm, but this principle seems to be inconsistently applied ([21:46]; [22:56]).

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Is the Outrage Justified?

Pesca’s Moderated Take ([01:46]; [36:25])

• Acknowledges “much to worry about,” but cautions against maximum panic.
• Notes that while the pattern of shadow docket wins for Trump is striking, many losses from lower courts were never appealed—the numbers don’t always show the full context ([36:25]; [37:10]).
• Shadow docket decisions, though alarming, sometimes reflect longstanding debates over executive power—are not always acts of subversion.
• Calls for a longer-term, less panicky perspective but doesn't downplay genuine institutional risks.

“We live in panicky times and not panicking is usually not just the best but the correct assessment. Also, we always think we live in exceptional times...I tend to take a longer view.”
—Mike Pesca ([38:57])

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The Legitimacy Question

• Court’s Reputation: Legitimacy depends on public perception that decisions are principled, not political ([27:11]–[29:16]).
• Shadow Docket’s Threat: The lack of rationale behind major rulings erodes trust, even if the principles might exist but remain unexplained.
• Justice Alito’s Dismissal: Alito reportedly mocks the term "shadow docket," but Vladeck insists the problem is not with the label but with the lack of transparency about significant rulings ([26:00]; [27:11]).
• Should Legitimacy Be Discussed?: Vladeck says yes—a healthy republic requires discussing challenges to institutional legitimacy.

“It's not the shadows that are the problem, it's what happens in the shadows... The Court's historical articulation of its legitimacy...has always centered around the existence of principle justifications for the Court's decision making.”
—Stephen Vladeck ([27:31])

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Notable Quotes & Memorable Moments

• On Judicial Power vs. Political Power:

  “It is so frustratingly inconsistent in ways where the best explanation for a lot of these rulings is not any coherent neutral legal principle, but just whether Republicans are winning or losing.”
  —Stephen Vladeck ([18:08])

• On Circuit Justice Tradition:

  “I will take a circuit justice behaving badly over a full court behaving badly. Because the implications are just totally different.”
  —Stephen Vladeck ([25:08])

• Caution on Accusatory Rhetoric:

  “Expert chatter about the conservative majority as partisans in robes... does not in these fraught times serve the wider public well.”
  —Mike Pesca, quoting Bob Bauer ([38:58])

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Timestamps for Key Segments

• Explanation of the Shadow Docket – [07:39]–[09:22]
• Why Its Use is Now Alarming – [09:22]–[10:58]
• Example: Alabama Redistricting Case – [13:18]–[16:14]
• Evolution of Shadow Docket Practices – [16:14]–[19:38]
• Is the Problem Just Partisanship? – [19:38]–[21:16]
• Emergency Standard & “Irreparable Harm” – [21:46]–[22:56]
• Legitimacy and Public Perception – [27:11]–[29:16]
• Pesca’s Perspective on Panic – [36:25]–[38:57]
• Discussion of Judicial Legitimacy – [27:11]–[29:16]
• Bob Bauer Quote & Final Thoughts – [38:57]

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Summary: Flow and Takeaways

• The Supreme Court’s “shadow docket” is no longer a niche, technical tool; it’s a frequent venue for major, high-stakes rulings, often with scant explanation.
• Stephen Vladeck’s analysis is that the real danger lies not in the frequency but in the inconsistency, lack of transparency, and visible partisanship—leaving the public guessing on legal principle and deepening distrust.
• Mike Pesca, while concerned, urges listeners to avoid panic or hyperbolic conclusions, noting historical patterns of overreaction as well as the complexity beneath the statistics and headlines.
• Both agree: legitimate courts require not just correct outcomes, but transparent, principled processes—something the shadow docket increasingly fails to deliver.
• The episode leaves listeners better equipped to understand both the real stakes of the shadow docket and the importance of keeping measured, vigilant perspective in interpreting its consequences.

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Transcript

[Mike Pesca]

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[Co-host or Producer]

Hi, it's Saturday. It's the Saturday show. We bring you one from the vault and one from the week. A best of.

[Mike Pesca]

I don't know if it was the best of the week when I previewed SCOTUS's that the Shadow docket is on the docket also called the emergency docket.

[Co-host or Producer]

And these are the series of rulings.

[Mike Pesca]

21 According to my spiel of this week where Trump won before the Supreme.

[Co-host or Producer]

Court and a lot of people who.

[Mike Pesca]

Know better than me in fact are saying this portends bad things for our democracy. The Roberts court rubber stamping Trump's agenda or listen my tone, right, listen to my tone. It's where you do the thing where you exaggerate the the potential harm and I do not want to do that and I did not want to do that in the spiel. So I try to explain these things every so often and what I'm going to do now is another crack at where I am in terms of concern. I am very concerned. You look at the shadow docket you look at the fact that the Trump administration has this big track record, you can't help but be concerned. Not just that the Trump administration is winning, but they're winning on issues that abrogate to them more power, and that could be concerning. On the other hand, there are reasons to be not at maximum panic. I am an under panicker.

[Co-host or Producer]

The classic way to present the refutation.

[Mike Pesca]

Of worries is to say there's nothing to worry about. That would be good in the audio form, where it's binary, where I could set up a bunch of Chicken Littles and then come along and say, no, don't worry, I am the calm, steady hand of the non Henny Penny crowd. And then I could come along and say, no, listen to me, I am not panicking and there is nothing to panic about. Weirdly, my stance is something like there may well be something to panic about. But since the panic over the shadow docket has been amply documented, I thought.

[Co-host or Producer]

It might be a public service to at least probe areas where the shadow docket worry adds up to a little less than the worry you may have.

[Mike Pesca]

Been hearing in most of your typical coverage of the Supreme Court's term and the shadow docket. Even though I said this, I know I'm going to get emails saying, Mike, you weren't worried. You said you weren't worried. But look at Letitia James has just been indicted. I know, I know. I didn't say any, nothing was gonna go wrong. I said that there is much to worry about. And I'm sure that much of those worries and much of the things to worry about beyond the things to worry about will be worried about. I think maybe I can provide some sort of service not to try to convince you that there's nothing to worry about, but to put some of those worries in a little bit of perspective. And what I draw on is and is my one from the vault portion.

[Co-host or Producer]

I had Stephen Vladek on the show. He's the law professor who talks a.

[Mike Pesca]

Lot about the shadow docket.

[Co-host or Producer]

In fact, In March of 23 he was on to talk about his book the Shadow Docket.

[Mike Pesca]

And he didn't invent the term, but if we use the term, it is.

[Co-host or Producer]

Very much a professor Stephen Vladik, recent coinage.

[Mike Pesca]

So enjoy my thoughts from this week.

[Co-host or Producer]

Enjoy to the extent you can.

[Mike Pesca]

Vladik's interview from a couple of years ago and panic as facts present themselves.

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[Mike Pesca]

When the Supreme Court first convened in 1791, it decided four cases that year, the next three years, three, two and one big bounce back year in 95 with six cases. Do you know in 1882 the Supreme Court handled zero cases. But then as the courts got more robust and as the Supreme Court was asked to intervene more, they did so. During the 1960s, the court was ruling on hundreds of cases. Now, if you look at the docket, the Court rules rules on a few dozen cases a year. I think it was 77 cases last year. And that seems inadequate to the task of the federal judiciary. But there is another way that it's a Supreme Court rules on cases and that is something called the shadow docket. It makes a decree. Lower courts and us all have to follow the decree. They give you a vote, but they don't tell you why and, and they don't tell you how they reach their reasoning. And this isn't just some weird bureaucratic curiosity. This could be seen as quite dangerous. It's quite a development. It is the subject of the new book the Shadow Docket how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Stephen Vladik is its author. Welcome to the gist.

[Stephen Vladeck]

Thanks for having me, Mike. Great to be with you.

[Mike Pesca]

The COVID is shadowy. The subtitle has the word undermine. There's so much, not just subterfuge, but danger contained within. Make your case. I know that when the phrase first originated, it was not meant to evoke such spookiness, but it has taken on that sheen. Why is it something for us to be afraid of?

[Stephen Vladeck]

Well, I think the reason to be afraid of it is not its existence, but how it's been used and in my view, abused by the Justices in the last six or seven years. I mean, you started in 1791. I think that's right. Like the, the Suprem Court has always had a need to resolve matters procedurally, to deal with questions on its docket, to hand down orders that may be technical and procedural in their impact. What has changed, Mike, and the reason why we should be alarmed is it's now become almost routine for the Court to use these unsigned, unexplained orders in ways that have massive impacts on our lives. Whether it's allowing a six week abortion ban to go into effect in Texas. Right. Nine months before the Court overrules Roe, whether it's blocking the Biden administration's vaccination or testing mandate for Covid for large employers, whether it's preserving nationwide access to mifepristone, when a federal judge in Texas was trying to block it we're going to all have different views about whether these are good decisions or bad decisions. No one can deny that these are massively important decisions, Mike, that the Court's not explaining. And the quintessential definition of judicial power, the Supreme Court's own explanation of its authority, is its ability to provide principled justifications for its decision making. Not because we're going to agree with the principles the justices espouse, but because we're going to agree that they are principles. Here, in contrast, the Court is issuing these rulings with massive impacts and with no principles, or at least with no articulated principles, which sure looks a lot more like an exercise of political power than judicial power.

[Mike Pesca]

Right. That's. The articulation of principles is so important. It helps. In fact, it dictates how future laws are drafted. It tells enforcement, which the Court doesn't have, how they need to do their job. I mean, basically, all the Court can do, yes, it makes their rulings, but what it really can do is establish precedent. And precedent isn't a number or a fiat decision. It's an explanation.

[Stephen Vladeck]

The theory of precedent. I mean, obviously, we've seen the Supreme Court overrule some precedents in recent years, but the theory of precedent is that, all things being equal, courts follow them, and that's what separates them from the political branches. That there is this abstraction called law, and the law is supposed to bind. And the problem is that when you actually look at the whole body of these unsigned, unexplained orders, Mike, starting in 2017, one of the things that opinions usually do is they insulate the court against charges that they're playing political fav. But if you look at what's happened since 2017, there's this remarkable trend where the Court is regularly intervening to allow the Trump administration to carry out its immigration policies. It's freezing lower court rulings against those policies. But lo and behold, when the Biden administration comes to office and makes the same arguments about why it should be allowed to carry out its immigration policies, those arguments somehow fail to resonate, and the Court comes out differently. If there were principal justifications for that seemingly partisan differential and treatment, it would look a lot better than how it actually looks when you look at the whole body of cases.

[Mike Pesca]

So the shadow docket existed prior to 2017. The phrase was originated by a legal commentator before 2017. But your point is, in 2017, it took on this different sheen, which is the shadow docket was. This is kind of a cliche, overused word, but a bit weaponized. You know, used in ways that weren't just in non controversial bureaucratic okay. Of, Of. Of lower court rulings that no one would really find issue with in 2017. It kind of became a partizan tool. But before we even get there, and I do, we're definitely going to get there. Take maybe the most egregious or the case that best exemplifies how the shadow docket works and articulate how that case should have been decided if this new method of the shadow docket hadn't taken hold.

[Stephen Vladeck]

Right. So let's think about this Alabama redistricting case from 2022. So after the 2020 census, the 44 states that have more than one district in the U.S. house all redraw their district maps based on the new census data. And Alabama redraws their maps. They have seven seats in the House, and Alabama redraws their maps so that only one of the seven seats is what's called a majority minority district, which is what's required by a federal law known as the Voting Rights Act. Those maps are challenged immediately on the ground that because Alabama has a population that is 27% black, because that population is geographically concentrated, Alabama had to actually have two majority minority districts. Mike, I think it's safe to say a second majority minority district would probably have been a safe Democratic district in Alabama. Two different federal district courts, including one staffed by Trump appointees, blocks the maps and says, hey, Alabama, you got to try again. These maps violate the Voting Rights Act. Alabama appeals those decisions to the Supreme Court. That's the norm, right? That's how this is supposed to happen. Says, hey, Supreme Court, we think this is wrong. And insofar as it's right, we want you to change the law. We want you to revisit the 1986 precedent on which these lower court decisions are based. But, Mike, Alabama also asked the Supreme Court for emergency relief while that case was pending. Basically a stay of the lower court injunctions so that Alabama could use the unlawful maps. And in an unsigned, unexplained order handed down around 5pm on Monday, February 7, 2022, the court said, sure, go ahead, use your illegal maps. Without telling us why, without explaining what was wrong with the lower court rulings that faithfully applied the old precedent. And this provokes four dissents, including not just the three remaining Democratic appointees, Breyer, Sotomayor, and Kagan, but also Chief Justice John Roberts, no fan of the Voting Rights Act. And Roberts says, like, listen, I might be willing to revisit this 1986 precedent. But this is not the way to do it. Right. We're supposed that's what the merits docket is for. The shadow docket's for emergencies. This is not an emergency. And to drive home. I mean, that's sort of emblematic of the decision making, Mic. But the effects because of that ruling, not only was Alabama able to use its unlawful maps, which probably meant that there was an extra Republican seat in the Alabama House delegation, but multiple other states followed suit. And so it is actually possible that Republican control of the House of Representatives in the current Congress can be directly traced to these unsigned, unexplained rulings from the supreme court.

[Mike Pesca]

And what, 20, 30 years ago, this wouldn't have happened. There would have been a signed decision and we would have gotten all the votes of all the justices and the explanations for and against and the country could read it and understand.

[Stephen Vladeck]

And indeed, I mean, I think that the normal appeal would have been what we saw 20 to 30 years ago. There wouldn't have been this effort to treat every single ruling that goes against a state as a judicial emergency justifying this kind of intervention. So there were emergencies 20 and 30 years ago, Mike. But one, almost all of them involved capital punishment and sort of last minute challenges to executions. And two, maybe once a term there would be a broader application and it would usually be denied because the justices just didn't think that that kind of emergency intervention was appropriate. Fast forward to the last five or six years where we're seeing it all the time, where upwards of 20 to 25 times a term we're seeing the justices hand down these kinds of rulings.

[Mike Pesca]

Are these rulings almost always done, the shadow docket rulings, where there is a time component, where there are some exigencies or at least it can plausibly be argued because the ones you mention mentioned are, you know, an election that's coming up or a Covid ban where the background is changing, or not even a death penalty case, something where you got to rule on it now. So the problem with the sick. Yeah, the six week abortion ban, which was, you know, temporary and going to change when the bigger ruling came out.

[Stephen Vladeck]

So some of them are, but some of them are not. I mean, the Alabama case, you know, Mike, they ruled on February 7th about the 2022 midterms, which were in November, you know, that February to November is a long time in the, in the life of the law. Right. You know. Yes, so, so this is a common.

[Mike Pesca]

Fair, not a long time in terms of if you're a candidate knowing what District you have not if you're going to run, but what even the districts are to run for.

[Stephen Vladeck]

That's right. But I guess the flip side of that is then, you know, let the district court decision stand and deal with it when it comes.

[Mike Pesca]

Like we have no law or just a question mark, we have the lower court decision. And you're saying in the history of the court, that's what would happen. That's right, yeah.

[Stephen Vladeck]

And you know, and the court would say, if we can't get to in time and it's a real genuine emergency, you know, we'll use this procedure. But Mike, even then, I mean, in the old days, the procedure was very different. In the old days, the typical emergency application would not go to the full court. It would go to the so called circuit justice, the one justice with geographic responsibility for the relevant part of the country. They would often actually hold oral argument by themselves, what's called an in chambers argument. They would write an opinion and that had the benefit of giving the parties their due, but also of a decision that no one would mistake for a ruling of the full court. It's really only in the 1980s, with the explosion of last minute death penalty cases, that the court drifts toward what's become the norm now, which is the full court resolves most divisive emergency applications. The norm is that there's no oral argument. The norm is that there's no opinion. And yet because it's the full court, there's this increasing tendency for these rulings to be precedential and treated as such. That's the problem, is that no one's disputing that the Supreme Court gets emergencies. And the Supreme Court needs a mechanism to resolve emergencies. But if you look at how they've been doing it in the last five or six years, it is so frustratingly inconsistent in ways where the best explanation for a lot of these rulings is not any coherent neutral legal principle, but just whether Republicans are winning or losing.

[Mike Pesca]

Right. And you do make the compelling case that the problem isn't that it's unprecedented, slap, dash, confusing. It's essentially that it's partizan. If you want to guess how the court's going to rule in these unsigned, unexplained, possibly inexplicable decisions. Just know if Republicans benefit and you're, you're almost always going to be right.

[Stephen Vladeck]

I mean, it's just so almost always might be a smidge strong, but it is, it is a better predictor when these disputes are divisive when, when, when it's not just an obvious, like clearly frivolous or clearly meritorious case. It is a better predictor.

[Mike Pesca]

And the ones that matter and people should know, most Supreme Court cases aren't five, four even close decisions. Most of them, the law is so obvious that, you know, the Supreme Court, even when they engage in it and do a full decision, it's not surprising to anyone. And that's probably true with the cases that come on the shadow docket. So if you just look at the cases that might, might plausibly be in dispute in that case, in those cases, we could say that it's close to almost always wherever the Republicans benefit, they get the shadow docket ruling to their liking.

[Stephen Vladeck]

And that I would think that's a perception that I think the court can ill afford to perpetuate.

[Mike Pesca]

Yeah.

[Stephen Vladeck]

But also it's a perception that it might. In the typical sort of merits context, the existence of a lengthy signed opinion with a full throated rationale insulates against where the court can say, no, no, no, we're not partisans. We just, the five or six of us conservatives in the majority espouse a different constitutional methodology than you do. And that's what leads us to this result. That's such a different vibe than, you know, just, oh, you win, you lose, and we're not telling you why.

[Mike Pesca]

So to steel man the argument here or to, you know, press you as hard as I can. If most of these shadow docket cases came to the full court, the Republicans would still win. Since the, I should say the Republican appointed justices have the majority, large majority on the court. And in fact, some of these five, four cases probably would be six, three cases if they were argued in terms of the way normal cases are normally argued.

[Co-host or Producer]

No, probably.

[Stephen Vladeck]

But I think there are two big caveats. The first is we have a couple of examples where that hasn't been true. So there's a case from last term, a technical immigration case about an asylum policy from the Trump administration known informally as remain in Mexico, basically the Migrant Protection Protocol. President Biden wanted to rescind that policy and his attempt to rescind that policy was blocked by a district judge in Texas. And the administration goes to the court and says, please, we want to rescind the policy. Please unfreeze this injunction. And the court says no, even though it had granted that request from the Trump administration over and over again. And then, Mike, on the merits, at the end of the term, the court ruled for Biden and the court actually upheld the rescission of the remainder Mexico policy. So problem number one, is it actually turns out that no, sometimes on the merits, the cases don't come out the same way. But problem number two is emergency interventions are supposed to be not just because the party seeking relief is going to win, otherwise every case would be an emergency. They're supposed to be because some irreparable harm is going to befall the party if they have to wait for the ordinary appellate process, if we have to make them go through the motions before the victory ultimately comes. And you know, the more that the court just sort of turns irreparable harm onto its head, the more it's basically rewriting the structure of the federal legal system with no input, with no sort of, you know, guidance from Congress which created that structure. So there's both a sort of factual problem and a legal problem.

[Mike Pesca]

In terms of partisan outcomes, though, I think there's something going on here strategically, which is as you articulated, there is a so if the problem is all nine justices can't get to every case, there is a solution. And that solution is that circuit justices, different justices signed to different circuits, handle specific cases. So there might be an emergency basis. This is a case that Justice Kagan is going to hear or this is a case that and that ruling will be the ruling. This is a case that Chief Justice Roberts is going to hear. Am I saying that right so far? That's how now here's the as you know but the attraction of the shadow docket is that if you have a 6 to 3 majority and I don't want to I'll acknowledge, you know, the justices aren't robots and they're not pre programmed by the party of the president that appointed them. But I think we understand what the Republican appointed justices mean. If you have a 6:3 majority and everything's a majority vote, the majority of six will always win. But if you have a 6:3 breakdown of the court and individually evenly distributed, the cases are to all the justices a third of the time, the Democrats will win. And the Republican justices don't like that. So that's why they do their shadow dog.

[Stephen Vladeck]

So I mean I take the point all say is that at least in the pre1980 universe, which where this was the norm. Right. Where this practice was the norm, the job of the circuit justice was not to rule the way he wanted to. The job of the circuit justice was to act as a proxy for the.

[Co-host or Producer]

You have a great example of Thurgood.

[Mike Pesca]

Marshall on a really important case saying essentially this is how the court, not me, the court would rule. So he rules in a case where he would be in the dissent if everyone were ruling.

[Stephen Vladeck]

And Mike and I think there's a fair amount of reasons to believe that. So let's imagine a world where I get my way and we go back to circuit justices. If all of a sudden Justice Sotomayor starts going wild in emergency applications in the Second Circuit, she can be overruled by the full court, and she would be overruled by the full court. And that's how it worked. I mean, the book starts with the story of Marshall vs Douglas in the Cambodia bombing dispute in 1973. Spoiler alert, Marshall wins. But that sort of. The notion that the circuit justices would run amok, I think is belied by what was true pre1980. But in any event, I mean, I think the point there is, even if you had a circuit justice behaving badly, I will take a circuit justice behaving badly over a full court behaving badly. Yeah, right. Because. Because the implications are just totally different.

[Mike Pesca]

So Justice Alito, in his genteel justice way, has been tangling with you a little bit, and his tactics are along the lines of, ooh, shadow docket. I'm perhaps misstating.

[Stephen Vladeck]

Or.

[Co-host or Producer]

Or.

[Mike Pesca]

Or for dramatic and comedic effect, mischaracterizing exactly what he said. Ooh, shadow, dark docket. Ooh, you should worry about it so much. Whereas your. And you could articulate what your rebuttal is. Something like, well, okay, sure, it's a scary term, but guess what? It's a scary term to illustrate a scary development. And you think, and I guess he's rebutting or wants to rebut the idea that legitimacy of the court should ever even be discussed. But you are saying that. But things like the shadow docket and the way justices are appointed and some other developments do lead to legitimate questions about the legitimacy of the court. And, you know, it's actually maybe helpful to the court or to the republic. There it is. From your subtitle. To articulate those problems. Like, we should talk about legitimacy. And I want to ask you about that, but, you know, what else would you say about why this leads to questions about the court's legitimacy?

[Stephen Vladeck]

Yeah, I mean, let me say one more about the title. I mean, right. So can we just say, I mean, shadows are not inherently pernicious. Right. Like, if, you know, like, you know, the sun casts shadows, that doesn't mean bad things automatically happen in the shadows. Right.

[Mike Pesca]

Are you going to talk about the shadows of the penumbra?

[Co-host or Producer]

Are we going back to that Supreme Court articulation?

[Stephen Vladeck]

No, all I'm doing is I'm pointing out that it's not the shadows that are the problems, what happens in the shadows. But that aside, Justice Alito really hates the term. I don't need or expect folks to agree with me on what makes the Supreme Court legitimate. Let's just focus on what the Court says makes it legitimate. And the Court's historical articulation of its legitimacy, when the justices have paused to try to do it, has always centered around the existence of principle justifications for the Court's decision making. That's true in the joint opinion in Casey. Justice Barrett gave a speech at the Ronald Reagan Presidential Library last April where she really leaned into this view that people are going to be pissed off about controversial rulings. But if you read the opinion, you'll have faith that we're acting as judges and not her words, not mine, as partisan acts. And so, Mike, I think part of what really falls flat with the Alito response is the dismissiveness of the idea that it's important for the Court to explain itself. Because it's not that necessarily the explanations are persuasive or even that they're accessible to the layperson. It's that the explanations are evidence of judicial actors acting judicially in ways that we are deprived of on the shadow docket. We don't care in the vast majority of unsigned, unexplained orders that we have no explanation. No one is losing sleep over the non explanation of why a party got 30 more days to file a brief. But when instead of an order that says you get 30 more days to file a brief, the order says no more abortion in Texas, right? Like now we care. And that's the shift that I think Justice Alito's responses radically underplay and undercount.

[Mike Pesca]

Stephen Vladek holds the Charles Allen, right, Chair in Federal Courts at the University of Texas Law School. He is host of the National Security Law Podcast and the author of the Shadow Docket how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Thanks so much, Steve.

[Stephen Vladeck]

Thanks, Mike.

[Mike Pesca]

And for Pesca plus subscribers, more vladic than you could even hope for. But man does Vladeck deliver. To subscribe to bonus episodes and to get all these podcasts ad free, go to subscribe Mike Pesky.

[Co-host or Producer]

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[Mike Pesca]

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[Mike Pesca]

The Gist is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. And now the spiel. The Supreme Court's October session starts today. On the docket, some interesting cases. Colorado's ban on conversion therapy, transgender athlete cases out of Idaho and West Virginia, a Louisiana Voting Rights act case, and a Rastafarian whose head was shaved in prison. No Rasta, no cry. But mostly I and I think most court watchers or authoritarian fretters are watching the shadow docket. This is the not at all nefarious sounding term for temporary rulings before courts can get to the real thing. Here's an L A Times headline. Trump's executive powers face test second sentence. Chief Justice John Roberts and his conservative colleagues have given no sign so far. They will check President Trump's one man governance by executive order. Well, you know, he is the president, so that's, that's the only man or person who could try to attempt that governance. But also they have given some signs. For instance, he hasn't won on everything. For another, they don't always explain their rulings but in public. And sometimes they do. And the explanations which are sometimes also embedded in past rulings have, if not a logic then a through line to them. And the through line isn't necessarily we want to let Trump win, though others, including Catanja Brown Jackson says no, what you're doing is you want to let Trump win. The question I have, and I am among those who probably is on the non Freddie side of the authoritarianism is upon us continuum, but certainly open to the best arguments thereof. So the question I have is what to think about the shadow docket? Is the grand worry about it justified? And will the Trump wins usher in some version of authoritarianism in which there is no clawing back the society we once knew? Or will it be more the case that it's bad news for an FCC commissioner here, a former Department of Education worker? There's a I have some answers. So Trump did win 84% of the shadow docket cases, but keep in mind they drop the dogs. The drop the dog strategy means they take the cases to the Supreme Court that they think they could win. And so far, that is 21 victories, 19 in a row by a lot of counts. They did have about 80 losses from lower courts that they didn't even attempt to get the Supreme Court to overturn. So 21 temporary victories today on the gist list. I linked to a very good Reuters article which I'm going to talk about and add to if you're interested in subscribing to the Just List free today. Text Mike to 33777 so very commercial. Anyway, what the Just List Reuters article does is it lists some of the reasons why the Supreme Court ruled the way it did. And before I even get to that, I did find another case where it was a Trump win at the Supreme Court. But it wasn't even the case that the dissenters were all the liberal justices or even only liberal justices. Justice Sotomayor in one of the cases, which was Trump v. American Federation of Government Employees, this was about the executive firing government employees. She said, I think pretty sound. Logically, the plans, the firing plans themselves are not before the court at this stage, and thus we have no occasion to consider whether they can and will be carried out consistent with the constraints of law. So that lower court ruling was overturned. I mean, she's pointing to a sloppy judge ruling. That seems something even a liberal justice should do. The Reuters article said that the court identified specific errors by federal judges in four cases. All right. That twice issued opinions that lawsuits challenging a Trump policy were brought in the wrong lower court. They twice predicted Trump would eventually win. Wait a minute, you're allowed to do that? Yeah, that's a standard test. Or winning on the emergency or shadow docket is not the only test, but they can look ahead to the future and say, well, when this all plays out, we think the President's going to win. It's obvious that the person who asked for the stay is going to win. So we're going to put the stay in place now. Otherwise the eventual winner will be harmed because he won't have or we won't have, as the people who elected him, the benefits of his policy. And by the way, is the Supreme Court right to predict they're going to win? Yeah, probably. They are the sixth in the six three Katanji Brown. Jackson even complains about this. In one dissent that I came across, she was making a Calvin Ball analogy, you know, that Calvin and Hobbes thing. And she said there seemed to be only two rules, and one is that there are no rules, and the other is that the administration always wins. So what I'm saying, to go back to my original premise, when the Supreme Court issues a stay and says, yeah, we think the administration is going to win, they're probably right. But let's continue. Reuters found that there were a couple of cases that involved Trump's firing of Democratic officials from federal agencies that it will potentially overturn. This is the Humphreys executor case. You know, any time I could talk Humphreys executor, I'm going to talk Humphreys executor. This my pledge to you. So you add it all up. A bunch of these shadow docket cases.

[Co-host or Producer]

Seemed decently or reasonably reasoned.

[Mike Pesca]

And I found that one, I mean, I found that it was quite publicly listed where Sotomayor and Jackson disagreed with each other. But there are a whole bunch of cases, including some of the ones I mentioned, that might represent giving the President too much authority, even if this is in line with age old debates that have always been had between conservatives and liberals on the court and has nothing to do with Judge Roberts seeking to overturn our democracy or Justice Alito being corrupt or anyone being in the pocket of MAGA or the administration. When you have enough conservatives on the court, they're going to enact conservative jurisprudence. And the Trump administration might take advantage of such conservative jurisprudence. By the way, there are many things that Biden tried to do which was in line with, say, the expanded powers of the judiciary. Now, when everyone hears this, I don't know, I have people I talk to who tsk, tsk, and say that I'm essentially under panicking. I'm a classic under panicker. Yeah, that's probably true. The fact that I've always been right. And no one asked me if Osama bin Laden had plans to attack the United States before 9 11. So we can't review the game film and see if I would have gotten that one wrong. But the fact that we live in panicky times and not panicking is usually not just the best but the correct assessment. Also the fact that we always think we live in exceptional times and it's all going to seed or pot or hell based on this, the crossroads or the pivot point we're right at, I don't know. I tend to take a longer view. It might be an under panicky view.

[Co-host or Producer]

But let me leave you with a.

[Mike Pesca]

Good quote I came across from Bob Bower. He was writing about the emergency docket. He's former White House counsel to Brock. Barack Obama also collaborates with a smart guy, smart lawyer, very smart lawyer named Jack Goldsmith, who very critical of Donald Trump, very worried about Donald Trump seizing too many powers, but also at the same time does look at the shadow docket and say, yeah, I don't know if this is the authoritarian keystone we've been looking for. So here's the Bauer quote. Accusatory rhetoric raising questions about the political or personal motives of justices, whether in the majority or the dissent, connects only with two publics, the segment that intensely dislikes particular decisions and welcomes these kinds of attacks and another that will be confirmed in its belief that the democracy debate is a sham warped by political agendas. Expert chatter about the conservative majority as partisans in robes who lie down for the president or the dismissal of the dissenters is motivated by an anti Trump agenda does not in these fraught times serve the wider public well. I am not a lawyer. I'm not a legal expert. I am someone who interviews lawyers. But I speak for the wider public when I say the analysis of the shadow docket as a vector. To rush to the pronouncement that the Supreme Court is illegitimate has great costs. And I'm willing to say that the costs were worth bearing, but I'm further willing to say that the costs might be worth bearing should the court prove itself, quote, unquote illegitimate. But we are a long way from there. And that's it for today's show. Cory War is the producer of the Gist. Ashley Khan does our coordination of production, which is one way to say it. Jeff Craig runs a our socials. Kathleen Sykes helps me with the GIST list. Michelle Pesca helps more than helps, really orchestrates it all from above, pulling the strings, sort of a Svengali in robes when she wears a robe, a bathrobe. Sometimes it's white, it's not black. Oom Peru.

[Co-host or Producer]

G Peru.

[Mike Pesca]

Du Peru. And thanks for listening.

[Jeff Bridges]

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