Lawfare Archive: The Shadow Docket

Summary

The Lawfare Podcast: Lawfare Archive – The Shadow Docket

Episode Details:

• Title: Lawfare Archive: The Shadow Docket
• Host: Jack Goldsmith, The Lawfare Institute
• Guest: Jonathan Fields, Author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
• Release Date: April 13, 2025

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1. Introduction to the Shadow Docket

The episode delves into the concept of the "Shadow Docket," a term coined to describe the Supreme Court's non-merits decisions that occur outside the formal, highly publicized merits docket. These decisions include emergency orders, summary reversals, and other procedural rulings that significantly impact national policy without the extensive deliberation typical of merit cases.

Notable Quote:

“The Shadow Docket consists of applications asking the court to block a lower court order while the appeals process plays out.”
— Jonathan Fields [01:28]

2. Historical Origins of the Shadow Docket

Jonathan Fields traces the origins of the Shadow Docket back to 1973, highlighting a pivotal case involving the bombing of Cambodia. In this instance, Justice William O. Douglas exercised emergency powers to grant a nationwide injunction, temporarily halting the bombing. This case exemplifies how individual justices could influence significant national policies outside the formal docket.

Notable Quote:

“The only example in American history of a federal injunction against an ongoing military operation.”
— Jonathan Fields [09:31]

3. Expansion and Prominence in Recent Years

Fields discusses the growth of the Shadow Docket, especially from the 1980s onward, correlating it with the resurgence of the death penalty and the ensuing flood of emergency applications. By the early 1980s, the Supreme Court began handling a surge of these cases, leading to a more permanent shift in how emergency applications were processed.

Notable Quote:

“The full court could not act on Holtzman's application, and rather all she could do was seek out a second circuit justice.”
— Jonathan Fields [12:29]

4. The Role of Certiorari and Docket Control

A significant focus is placed on the Supreme Court's transformation from mandatory to discretionary jurisdiction through the expansion of certiorari powers, particularly with the Judiciary Act of 1925. This shift granted the Court plenary control over its docket, allowing justices to selectively choose which cases and issues to address, thereby amplifying the Court's influence over national legal principles.

Notable Quote:

“The Court can say accurately and honestly, this is how we've always done emergency applications going back to the 1980s.”
— Jonathan Fields [20:16]

5. Criticisms and Challenges of the Shadow Docket

Fields articulates several criticisms of the Shadow Docket:

• Lack of Transparency: Decisions are often rendered without detailed explanations, making it difficult to assess the Court’s reasoning or consistency.
• Strategic Denials of Certiorari: Denials can have significant impacts without establishing precedents, as seen in the legalization of same-sex marriage where strategic denials allowed lower court injunctions to stand.
• Inconsistent Applications: The Court's interventions appear inconsistent, favoring certain administrations or policies over others without clear rationale.

Notable Quote:

“A cert denial can have a massive impact on the ground.”
— Jonathan Fields [34:29]

6. Impact on Recent Supreme Court Decisions

The episode highlights how the Shadow Docket has influenced recent high-profile cases, including immigration policies like the Migrant Protection Protocols (MPP) and COVID-19 restrictions. Fields points out that these emergency applications often align with partisan lines, undermining the perceived neutrality and principled decision-making of the Court.

Notable Quote:

“The pattern looks bad when what should have been predictors for neutral application of principles across cases with different partisan valences turn out not to be accurate.”
— Jonathan Fields [61:49]

7. Reforms and Future Directions

While acknowledging the inherent challenges in reforming the Shadow Docket, Fields proposes that increased public awareness and discourse are essential first steps. He suggests that mechanisms to expedite merit reviews and reduce reliance on emergency applications could alleviate some of the Court's docket pressures. Additionally, he emphasizes the need for greater transparency in the Court's emergency rulings to enhance accountability.

Notable Quote:

“The big proposal is that we just need to talk about this.”
— Jonathan Fields [69:27]

8. Conclusion and Key Takeaways

The episode underscores the critical importance of understanding the Shadow Docket as an integral part of the Supreme Court's functioning. Fields argues that neglecting this aspect provides an incomplete and often misleading portrayal of the Court's role in shaping national policy. By shedding light on the Shadow Docket, the discussion calls for a more holistic approach to evaluating the Court's influence and decision-making processes.

Notable Quote:

“The Shadow Docket is in many ways as important if not more so than the merits docket.”
— Jonathan Fields [72:23]

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Final Thoughts: Jonathan Fields' insights reveal a facet of the Supreme Court's operations that operates largely beneath the public radar yet wields substantial power over national policies. The Shadow Docket presents both opportunities for swift judicial intervention and challenges related to transparency and consistency. As the Court continues to evolve, ongoing analysis and dialogue are essential to ensure its decisions uphold the principles of justice and republican governance.

Transcript

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[Jack Goldsmith]

I'm Jack Goldsmith and this is The Lawfare Podcast May 16, 2023 in recent years, the Supreme Court's non merits shadow docket has become a topic of contestation and controversy, especially the Court's emergency orders rulings on issues ranging from immigration to abortion to COVID 19 restrictions. To discuss these issues, I sat down with Stephen Vladik, the Charles Allen Wright Chair in Federal Courts at the University of Texas Law School, who is the author of a new book entitled the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republican. Vladek and I discussed the origins of the contemporary shadow docket in some 1973 emergency orders related to the bombing of Cambodia. Why the Court shadow docket has grown in prominence in recent years. What's Wrong with the shadow Docket and How to Fix it? It's The Lawfare Podcast May 16 the Shadow Docket Steve, you're the leading commentator and critic of the shadow docket. It was a term coined by Will Bode with respect to the Supreme Court, but you've really made it your issue and now you've written a book about it. So what is the shadow docket?

[Jonathan Fields]

Yeah, so the, the basic idea, and it really was Will's, was to use this evocative shorthand as an umbrella term, as a, you know, just descriptive of everything that the Supreme Court decides other than the, you know, 60ish fancy merits decisions we get each term in cases that were argued. So, you know, when the Supreme Court decides whether or not to grant certiorari and take up a particular case, that's on the shadow docket. When the Supreme Court, you know, does something totally anodyne, like giving a party more time for a brief or dividing argument, that's on the shadow docket. When the Supreme Court grants or denies an application for emergency relief, either to freeze a lower court ruling or unfreeze it, that's on the shadow docket. And, you know, I think Will would agree that he did not mean the term as a pejorative, but rather just as a catch all to suggest here's a pretty significant body of stuff that the Supreme Court does that we ought to pay attention to, because sometimes some important decisions are made with significant consequences in that part of the Court's docket in a part that's really by tradition, much less visible or accessible or noted. And I think, you know, I think that was Will's insight, which I've rather shamelessly appropriated.

[Jack Goldsmith]

Well, you weren't shameless about it. You always give him full credit. But let's just talk about, you know, why it's a different. So give us, you know, the merits docket of the Supreme Court is what most people pay attention to most of the time. It's certainly what law students pay attention to most of the time. It's what journalists, at least until recently, paid attention to most of the time. It's highly formalized. Just give us a brief description of what happens on the merits docket as a kind of baseline for understanding the shadow docket, which will break apart after you talk about the merits docket.

[Jonathan Fields]

Yeah, sure. So a typical case on the merit stocket, and there are exceptions, but a typical case comes to the Supreme Court as a petition for certiorari to review a decision by either a federal circuit court of appeals or the highest court of estate. Jack, as you know, after usually years of litigation in the lower courts. Right. The norm is that a case comes to the Supreme Court really at the end of the litigation, or at least at the end of the resolution of that particular issue. And the Justices will take a couple of months to decide whether or not to grant certiorari. That decision is made without explanation by tradition. And then if and when the Court does grant certiorari, then you'll have what's called the merits briefing, where the parties will switch from arguing over whether the Court should even hear the case to arguing over how the Court should rule. The merits briefing, as you say, is highly formalized. There's a lot of opportunity for participation by amici, by friends of the Court. Once that briefing is complete, the Justices will hold oral argument. Oral argument, of course, is itself highly ritualized. And then sometime after the oral argument, the Justices will hand down the Court's decision, which in almost every merits case means some lengthy opinion for the Court, or at least opinion on behalf of a plurality of the Justices, combined with maybe a series of concurring opinions and dissents. And so that's sort of the full monty of the merits docket, where what you're getting is basically every single piece of process that the Supreme Court is able to provide.

[Jack Goldsmith]

And it comes down, as you emphasize, we know when merit stocking cases are going to be decided. We don't know which cases are going to be decided when, but it comes out at 10 o'clock in the morning on specified dates. And it's just all very regularized.

[Jonathan Fields]

Yes. And the Court announces in advance which days it's going to hand down opinions. The opinions are handed down in reverse order of seniority. So as you're sitting There frantically hitting refresh on your web browser. You know that if this opinion is from Justice Kavanaugh, the next one's not going to be from Justice Jackson. I mean, there's just. There's a lot of, you know, sort of ritual and form and formality to everything the Court does on the merits docket, so much so that it's actually become something of a sort of a side gig for folks to get into predictions. Right. Who's writing which case based upon how other cases were decided and assigned. What do we expect on a particular day in May or June? It's really. It's become quite a sort of a rigmarole.

[Jack Goldsmith]

Okay. So that's, you know, I think it's fair to say that that's the baseline of normalcy, or at least that's the baseline of normalcy for important opinions and important decisions of the Court, I should say. So. Now, let's talk about. I want to get into talking about the shadow docket, which, as you said at the beginning, subsumes lots of different things. I want to get into it by asking you to recount this wonderful story that's Lawfare appropriate, since it involves the war power about Justice Douglas versus Justice Marshall with regard to an injunction in Cambodia in the 1970s. It's a great story, and it actually has a lot of important consequences for today.

[Jonathan Fields]

Yeah. And I think it's a really good sort of extended microcosm of a lot of what I try to talk about in the book. So the book opens with this dispute from the summer of 1973. And you know, Jack, as you know as well as anyone, Congress and President Nixon are locked in a bitter struggle over basically the future of hostilities in and around Vietnam. Right. U.S. troops are pulled out of Vietnam in early 1973, but President Nixon, with some amount of controversy, continues to bomb communist strongholds in neighboring Cambodia and elsewhere. And eventually Congress passes a funding cutoff that basically says as of August 15, no more funds will be available for any military operations in or over, you know, that part of the world. And this dispute arises as to whether the funding cutoff actually authorizes the bombing up until that point. So Congresswoman Elizabeth Holtzman and a bunch of Air Force officers go into federal court in Brooklyn and convince Judge Oren Judd to issue an injunction blocking the bombing of Cambodia. Jack. Still to this day, the only example in American history of a federal injunction against an ongoing military operation. The injunction never goes into effect, or at least at that point, never went into effect. Judge Judd stayed the injunction for two Days to give the federal government time to get a stay from the second Circuit. This the federal government promptly gets. At which point the plaintiffs, Congresswoman Holtzman, and the other Air Force officers go to Thurgood Marshall in his capacity as circuit justice as the the one of the nine justices assigned to handle emergency applications from the 2nd Circuit and ask Marshall to lift the state or vacate the stay. This is where things start getting a little bit wacky. So Marshall follows what at that particular time was the standard procedure for these kinds of high profile emergency applications. He holds several hours of oral argument in his chambers at the supreme court in Washington, D.C. and he files this lengthy opinion explaining why he was not going to lift the stay, why he was going to deny the application to vacate. Sort of the. The thrust of it being, you know, even if I might be sympathetic to the district court's ruling, Marshall says my job as circuit justice is to rule as I think the full court would. And so because of that, he denies the application. Matters might otherwise have ended there, but the lawyers for Congresswoman Holtzman and these Air Force officers decided to invoke this even more obscure part of the Supreme Court's rules, which allow you to go to a second justice when the first justice has denied relief. Usually if the court is in session, that automatically kicks it to the full court. But at least back then, before 1980, the court did not stay in session over the summer.

[Jack Goldsmith]

Steve, before you go further, explain what being in session means.

[Jonathan Fields]

Yeah, so, you know, we take it for granted today, Jack, that the court is always in session, meaning that even when the justices are not physically in Washington or physically on the bench, they're able to act as a full court. So they can hand down a ruling of the full court, a grant or a denial of an emergency application. Jack, at any time. This wasn't true before 1980. Before 1980, the court would formally adjourn when the justices rose for their summer recess, meaning that the court itself was not constituted in a way that could act over the summer. This is why, for example, in 1942, in the Nazi saboteurs case, Ex parte Kieran, a case near and dear to both of our hearts, the court has to come back for what's called a special term because it wasn't otherwise able to act over the summer. And in 1973, this meant that the full court could not act on Holtzman's application, and rather all she could do was seek out a second circuit justice. So her lawyers fly across the country to track down Justice William O. Douglas, who spends the summers at that point in his career in his. Basically his shack in the woods outside of Yakima, Washington, in a part of the Washington state called Goose Prairie. And they show up at Douglass's door early in the morning. Douglass greets them unshaven in a bathrobe, says, come back in a couple hours. And when they come back, Douglass says, I want to hold a hearing. So the next day, I think now we're up to Friday, August 3, 1973, Douglass convenes a hearing at the nearby federal courthouse in Yakima, Washington, where he hears from both sides. He hears from the lawyers for Congresswoman Holtzman, he hears from the local U.S. attorney on behalf of the Justice Department. And Douglas then spends his sort of rest of the day driving back up to his house in the woods that doesn't have a telephone and relaying through a series of roadside payphones his decision to grant the application to vacate the state, basically to put the injunction into effect and stop the bombing. And that order comes down formally from the Supreme Court Saturday morning around 9:30 Eastern Time. The Justice Department then promptly goes back to Justice Marshall and says, all right, Douglas has vacated the stay. The injunction is now in effect. Hey, Justice Marshall, you by yourself can issue your own stay of the injunction so you can put it back on hold. And Marshall acquiesces. So about six hours later, Marshall issues his own stay of Judge Judd's injunction and therefore sort of ends the dispute there. And you know, Jack, as you know, there's this remarkable moment at the end of the second opinion, Marshall writes, where he says, you know, I have been in touch with the other seven justices and they all agree with this disposition basically that, like, you know, hey, Douglas, it's eight against one, even though the full court wasn't actually in session. And what I find so striking, Jack, about that example is sort of two things. The first is that was how the court used to handle emergency applications. Like one justice acting by himself, which had the virtue that no one would ever confuse what the individual justice had done with a ruling of the full court. No one would ever think that, like, this was the full court speaking. And the other piece of it is, and a single justice acting by himself was actually able to provide more process, right? Briefing, oral argument, writing an opinion than was the norm and is the norm today when the full court is acting on one of these applications. So part of why I like starting with that story is I think it's an interesting story unto itself. I think the debate between Marshall And Douglass, you know, two pretty sort of liberal justices, but who were at loggerheads in this dispute, is a pretty fascinating story about whether your job as a Supreme Court justice is fidelity to what you think the law is or fidelity to the institution. And I also think that Douglass, in his second opinion, when he's criticizing Marshall's denouement, when he's dissenting, lays out a lot of what have become objections about the shadow docket in general, which is how difficult it is for the Court to act carefully and to Douglass's view properly when it's acting quickly without the normal deliberative process, without conference, where the justices all get together to talk about cases. It's ironic to me, Jack, that the process that Marshall sort of informally invokes to end that dispute becomes de rigueur, really, in the next 10 years or so, and that Douglass's objections to that process actually, I think, get lost to history. It's. It's a big part of why I think the story is well begun there.

[Jack Goldsmith]

Yeah, it's an excellent story. And also, wasn't this the event that led the Court to end adjournment and stay in session all year long?

[Jonathan Fields]

So it's part of it. I mean, you know, it's interesting. The historical record's a bit unclear as what the exact provocation was, but there were two different things going on at the same time. The first is this episode, which really, I think, left a lot of folks inside the Court with a pretty bad taste in their mouths. And the second, and this is actually a big part of the story that the book tries to tell, is, you know, the explosion of the death penalty after 1976. So shortly thereafter, you know, when the Supreme Court brings back the death penalty, it brings back a death penalty with a whole bunch of new constitutional issues, many of which only arise at the end stage of litigation, which in turn provokes a flood of emergency applications from death row prisoners, from states seeking to unfreeze executions. And so, Jack, I think it's those two developments together that really pushed the Court in the early 1980s to start dealing with all of these emergency applications, or at least the ones that are remotely divisive, the way that Marshall had sort of done indirectly, have the full court stay in session, have the full court resolve them. But, Jack, do it without oral argument, and almost always without any explanation.

[Jack Goldsmith]

Right, so that's a nice tie up, because that's the point that the Court basically institutionalized deciding emergency requests as a court, and they did so by ending adjournment being in session all the time. And that, you know, was not obviously the right step. That may have been a fraught step.

[Jonathan Fields]

I think that's right. I mean, you know, listen, I think, Jack, folks can debate and folks ought to debate what is the normatively ideal way for the Court to act in this context? I think what's really important, and this is perhaps the, the most unique, I think, contribution the book tries to make to the historical understanding is that the Court was, you know, motivated, slash impelled to make these changes in response to the flood of capital cases and last minute applications and capital cases. So that I think what was, Jack, for the better part of 35 years, a death penalty specific series of practices didn't get a lot of attention as such because everyone assumed they were only about the death penalty. And so when in the mid 2010s we start to see the Court using these same procedures and following these same norms in cases that are about immigration policies or elections or Covid mitigation measures, the. The Court can say accurately and honestly, this is how we've always done emergency applications going back to the 1980s. And folks could say in response, but those were all in death cases. And this is different.

[Jack Goldsmith]

Right. Okay, good. So that's an excellent introduction. I want to come back to the emergency docket, but I want to deal with two topics that I think are absolutely fundamental that go to the shadow docket more broadly that you deal with. Well, in the book, the first one is, and I think this is absolutely of crucial importance to understanding the modern Court's power, to understanding modern constitutional law, and to understanding modern federal courts doctrine. And that is how the Court went from having at the outset in 1789, basically a fully mandatory jurisdiction with no control over its docket, to today, where it's practically the opposite, where the Court has plenary control over its docket, that is deciding which cases to hear, in what posture, when, how, et cetera, including merits cases. It can decide what merits cases it wants. Just talk to us, and you have a great chapter on this. Talk to us about that transition and its significance.

[Jonathan Fields]

Yeah, I mean, this is my favorite chapter to write in the book. It's chapter one. As you know, I assign it now in my federal courts classes. Sorry, federal Court students. So this is, you know, the history of certiorari, which we talked about a bit already, is actually, I think, a really powerful way of telling the history of the Court. So, you know, for its first hundred some odd years as an institution, the Court has to decide every case it has jurisdiction to decide. And what that means is very little, right, until the Civil War, because the court only has 55, 60, maybe 65 cases that it gets every year. Actually, until the Civil War, most of what the justices are doing is riding circuit, is acting as circuit judges in the. In the intermediate courts. What changes after the Civil War is a series of developments that just explode the court's docket. You have the Reconstruction Amendments, obviously, which raise a ton of messy and important questions for the courts. You have Congress radically expanding federal jurisdiction to run to lots of disputes the courts would never hear before the general federal question jurisdiction. The idea that federal courts can hear all cases arising under federal law doesn't come to be until 1875. And you know, Jack, as you know, there's this fundamental shift in the federal government itself, where the federal government is regulating far more aspects of everyday life, right. Starting in and shortly after the Civil War. So that by 1890, the court has somewhere north of 1800 cases on its docket. It's three years behind. It's totally overwhelmed. And really all it's doing is acting as a Supreme Court of Appeals, just, you know, brief, quick opinions, resolving each case quickly as they come before them.

[Jack Goldsmith]

It's a dispute.

[Jonathan Fields]

Right?

[Jack Goldsmith]

It's a dispute resolution court at that point.

[Jonathan Fields]

Exactly. So, right. The Supreme Court's job, I mean, you know, we still read, we teach the canonical constitutional law cases of that era, but those are almost accidents compared to what the courts do on a daily basis. There's a. There's a. There's a small attempt to reduce some of the docket pressure in 1891 by giving the court discretion over four categories of cases that no one really cared about. But that doesn't stem the tide. So that by the early 1900s, the court is just totally overworked. And one of the people who notices this and who makes the biggest public stink about this is William Howard Taft, who, you know, at this point in time had been a circuit judge. He had been the Solicitor General of the United States, and now I think he is President Roosevelt's commissioner for the Philippines. And when Taft runs For President in 1908, one of the things he talks about is reforming the court because from his perspective, right. The court needs to be above the fray. The court should be jacked to take that. The language, right. The more of a law declaration court as opposed to a dispute resolution court, the court should be functioning more as a constitutional court than as a Supreme Court of appeals. And so it's actually Taft, among others, but Taft, first and foremost, who really leads the charge for the expansion of certiorari. And when he becomes Chief justice in 1921, something he worked very, very hard to engineer, he really picks back up the mantle and is instrumental in leading Congress to eventually adopt what's formally the Judiciary act of 1925, informally known as the Judges Bill, because the Court wrote it. And the Judges Bill gave the Court total discretion over just about every case coming up through the federal courts, state courts. The Supreme Court still had to hear the appeals, but lower federal courts, the Supreme Court could pick and choose which cases it was going to hear no matter what the issue was, no matter what the lower courts had ruled. You know, this was a huge part of Taft's mission to give the Court autonomy and more independence.

[Jack Goldsmith]

And why? Explain why. What was his theory of the Court's role?

[Jonathan Fields]

So, you know, Taft, I mean, Taft was first and foremost a judicial supremacist, right. He thought that, you know, the Court's job was to be the supreme expositor of the Constitution and everything else was secondary. And so he thought that for the Court to play that role, it needed to not be bothered with small technical disputes of little impact. Right? With sort of one off cases that weren't going to stand for any broader legal principles. And so his thesis was that discretion brings with it power because the Justices could then pick and choose not just which cases to hear, but they could pick cases that would allow them to prioritize fashioning nationwide legal principles. Right. Interpreting the Constitution on a nationwide basis. And one of the things he does shortly after the 1925 act is he goes one step further and he says, not only can we pick and choose which cases we're going to hear, but we can pick and choose which issues we're going to decide within those cases. So it's Taft who inaugurates what's now known as limited grants of certiorari. The idea that petitions for review to the Supreme Court should ask the Justices to review not the entire case, but specific questions. And the Justices can then pick and choose which questions they actually want to resolve. And this was all from Taft's perspective, about the same thing that led him to push for the Court to have its own building, which is that a court with control of its docket and a court with its own building was a court that was at least the equality of the political branches and a court that would be able to assert the full amount of constitutional authority that it was granted.

[Jack Goldsmith]

Okay? And so 1925, the judge's bill was a big move in this direction of giving the court control. The court asserted control as you discuss, even on its mandatory appellate docket and its original jurisdiction docket. It basically read in discretion of sorts there as well. Finally, in 1988, Congress basically gives the court full plenary discretionary certiorari control over its docket.

[Jonathan Fields]

Yeah, I mean the only remaining category of mandatory appellate jurisdiction is for appeals from what are known as three judge district courts. So these are sort of the weird little federal courts that Congress uses to combine the functions of the district court and the court of appeals. And, and Jack, as you know, the only categories today where three judge district courts are used are certain campaign finance cases. So like Ted Cruz's case from last term or certain reapportionment disputes about congressional redistricting. And that's it. Everything else is within the court's discretion. Not just the cases, but the issues.

[Jack Goldsmith]

So it can take as many cases as it wants or as few cases as it wants. It can craft those cases as it wants with rewriting or narrowing questions presented. Does all of this within its discretion? The rules on this provide guidance, but the courts aren't terribly bound by that. So I can't tell, I couldn't really tell from the book whether it seems like you think this is a bad development. And let me just get the full question out. And it is a, it's definitely a development that massively enhances the power and discretion of the court. I mean, I think several people said, I think you quote Hartnett or someone who's saying this is in. The modern court was born in 1925 when it got control over its docket and lots of things that happen. You know, it basically means the court can, you can see the civil rights revolution as a product of the court being able to pick and choose the cases that it wanted to ignore the cases it didn't want. And importantly, and I'm just repeating what you said in the book, you can correct me when I get it wrong. It also means that the court can decide cases perhaps with far reaching impacts without having to deal with the consequences in the sense of having to deal with tons of follow on cases because they can just deny cert on those and let the lower courts work it out. So just expand on that, correct that and just talk about the huge significance that the rise of the court's control over its docket has.

[Jonathan Fields]

So I mean, everything you said is right? I guess I am. Jack. I'm profoundly ambivalent about whether certiorari is a Good thing or a bad thing? I think the most important thing to say, though, is it's a thing.

[Jack Goldsmith]

Yeah.

[Jonathan Fields]

And that. I really think that, you know, I mean, this was. It was. It was revelatory for me to realize just how little time we spend in law school, even in classes about constitutional law or even federal courts. Right. Teaching our students the history of certiorari, because I think it just, it explains so much of. You know, folks look at the Supreme Court today and ask themselves, you know, how did this court become so powerful? Was it always this way? Like, how is it that the Supreme Court seemingly has the ability to weigh in on every single, you know, divisive issue in American public discourse? And I think certiorari is a big part of the reason why. The flip side, I mean, the tricky part is that, you know, the docket pressure is still there. I mean, the Court, even in a quiet year, right. The court is still getting somewhere north of 5,000 to 6,000 petitions for certiorari. And I don't think anyone could say with a straight face that the Court is in a position or should have to resolve all of those appeals. I think the question, and at least a place where I would love for there to be a richer debate, is whether Congress has gone too far in the other direction. So if we look, Jack, at the number of cases the Court has decided each of the last four terms, including the current term, the Court's going to be under 60 total merits decisions each of the last four terms, a number it hadn't gone below before 2019, since 1864. And so I think two things can be true. Right. One is that the Court has to have some mechanism for separating out the cases it's going to decide from the cases it's not. But that two, we ought to all understand how the current mechanism for that has given the Court a massive amount of power, power that the Court exercises through the quintessential shadow docket order, through unsigned, unexplained orders that can often have enormous ramifications, even if they're not formally precedential. And so I guess, you know, I'm happy if everyone at least starts from the proposition that we ought to talk more about certiorari, even if reasonable folks might disagree about whether the current state of affairs is ideal.

[Jack Goldsmith]

Okay, good. One more question about certiorari, then we'll get to the emergency docket. And that is, and again, another wonderful chapter about sort of questioning the conventional wisdom, at least in some quarters, that the vast majority of certiorari petitions are denied. And the conventional wisdom is, or at least the common understanding is that a denial of certiorari means nothing other than that the court decided not to take the case. And it doesn't have any implications of that other than leaving that case, the case below in place. Leaving that decision in place. But you have a great chapter describing and using Obergefell as your central example about how there's lots of strategic, many strategic considerations that can go into assert denial. And then it's too simplistic to say that assert denial is kind of a meaningless act. Right. Is that the right. Is that the right setup for that?

[Jonathan Fields]

Yeah, and because the. What? The what? The same. I mean, the. So Obergefell versus Hodges. This is the Supreme Court in 2015 saying there's a constitutional right to same sex marriage. And so the common sort of view is that it's Obergefell that legalizes same sex marriage on a national basis. The reality is a little more complicated. By the time the court decides Obergefell, same sex marriage was legal in 37 states. There are only 13 that were left to be directly affected by Obergefell. Jack. Half of that, as the book documents. Right. Half of those 37 were, you know, on their own. Right, where the. Either the state democratic process or the state supreme court, as a matter of state law, had legalized same sex marriage. But half were because lower court decisions that had blocked state marriage bans were left intact, were not reviewed by the Supreme Court. Right. That. There's a. There's a series of cert denials on the first Monday of the October 2014 term that basically leads directly to the legalization of same sex marriage in a bunch of states. Jack. Not because the cert denials were precedential, but because the effect of the cert denial was to allow for a final judgment in a whole bunch of states in federal courts that had blocked those marriage bans. So those injunctions went into effect as a result of the cert denials. And part of why I think that's so evocative is because it shows that, yeah, even without formally creating a precedent, a cert denial can have a massive impact on the ground. The marriage cases, I think, are especially useful because you can actually directly measure that impact by just telling the chronology of when the court denied cert and then when those states started allowing marriages.

[Jack Goldsmith]

Yes, and it's even more than that, because as you point out, the justices, some of the justices who ultimately ended up dissenting in Obergefell could have. There were four Justices who dissented, and those Justices could have voted to grant in those cases.

[Jonathan Fields]

Yeah. So, I mean. Right. So if nothing else, we know that at least some of the Justices were voting strategically, which, you know, Jack, I mean, anyone who I think follows the Court closely will not be surprised to learn that there's strategic behavior in the cert process. But I think for folks who don't follow the Court as closely, like, here's a very visible example of why and how that happens.

[Jack Goldsmith]

Exactly. So here's my question about that. So is that a good thing or a bad thing? Is it a necessary evil? I mean, again, I don't think you take a position on this, but, you know, the conventional understanding, at least my view, is that it would be impossible and unwise for the Court to provide opinions for why it denies certiorari. That would defeat the point of having discretion. But, you know, a blanket denial can often be used strategically to achieve all sorts of consequences in the lower courts. And is that just a necessary. Is it just a necessary product of the system? Is it something we should worry about?

[Jonathan Fields]

I think the answer to both is yes, that it's a necessary product of the system, and it's something we should worry about. Like, you know, again, I think, you know, I don't have a strong view as to whether there are more attractive ways for the Court to, you know, sort of shape its docket. I mean, you know, Jack, I think everyone would agree that a large percentage of the cases the Court is asked to review are cases that the Justices don't need to review. That right there. The law is settled. The law is not moving. The petitions are, you know, clearly meritless. The tricky part is that there are cases, every term, where the Justices are denying review not because the case is unworthy, but because by denying review, something is accomplished. I don't know how you can have one without the other. Which goes back to why I think it's just important that when we talk about the Court, when people like you and I are teaching our students, when journalists are writing about the Court, we don't just sort of accept the denominator, Right. The number of cases the Court has granted as this manna from heaven, but rather, we understand that the Court's docket is itself a result of very specific, motivated choices that the Justices have made that ought to sort of reinforce how we think about what the Court is doing as a whole. So when we talk about how many cases are unanimous versus how many cases are divided in the Justices, you know, it's not the norm to contextualize that by saying of the cases the court chose to hear and the issues the court chose to decide within those cases. So if nothing else, what I'm hoping to do, at least in that part of the book, is change how we talk about the court. I don't know that there are obvious reforms to come out of that, although maybe the more we actually do talk about this part of the court's work, the more that we actually might think there are some small things we ought to do.

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[Jack Goldsmith]

Well Steve, let me just pay you the compliment at this point that I was going to pay you at the end of our discussion. You've accomplished that. I mean this book and the stuff you've been doing the last several years will take get some credit for this will bode, but you've accomplished that big picture vitally important point, which is there's been an obsessive focus on the merit stock. And as if that were the only important thing the court did, there's all sorts of other stuff going on on the non merit stocket, whether it's denials, certiorari, emergency order, summary reversals that have giant consequences for American law and for Supreme Court jurisprudence that has just been under analyzed if not ignored and under explored and whatever else the many other things your book accomplishes, it's clear already that that is no longer the case that we're now in a period where people are going to be paying attention to this stuff.

[Jonathan Fields]

Well, I appreciate that. That's music to my ears. One of the things about this book that I think, you know, Jack, is, you know, I'm hoping that even folks who are not inclined to agree with me about some of the criticisms will still agree that the sort of the broader points about understanding of the Court are worth making.

[Jack Goldsmith]

I'm one of those people. I don't agree with all of your criticism, but I do definitely believe that on that bigger picture point that you've done something, something vitally important. Okay, well, I appreciate that. Let's switch to the emergency docket and just to review for people who don't fully understand these terms. So at the beginning you defined the shadow docket, which is the name of the book, is basically all of the Supreme Court's docket that's not on the merits and that can include things like Cert denied. That can include things like this person can be in, have oral argument time. That can include summary reversals. But where the focus of attention has been and the focus of criticism and controversy has been is on the so called emergency docket component of the shadow docket. So just, again, I just want everyone to understand what we're talking about, just to just tell us again what that is and then I'll ask you about it.

[Jonathan Fields]

Yeah. So, I mean, emergency applications can come in a number of forms. So let's back up a second. Almost all of these cases start with a very early request for an injunction. A party is challenging a government policy, whether it's state or federal policy, and they want an injunction. They want a court order blocking the policy. So there are two possibilities. Either the trial court says, yes, I'm going to block the policy, or no, I'm not going to block it. What happens to usually precipitate an emergency application is whoever loses that first decision in the trial court seeks some kind of temporary relief on appeal. So if the trial court has blocked the policy, the government goes to the appeals court and says, we want you to unblock it. And if the trial court doesn't block the policy, then the plaintiff goes to the appeals court and says, hey, you should block this. While we challenge the denial of our motion to block it. This all can happen very quickly, and it can go to the Supreme Court very quickly. So that the norm. Norm is not the right word. The sort of the typical emergency application the court gets these days is either for a stay or for an injunction pending appeal, basically asking the court to intervene, to put back on hold or put back into place the thing that's being challenged historically, Jack, as you know, there weren't that many of these. The Cambodia case was an outlier. Some of that might be just sort of a function of what litigation challenge and government policies used to look like. The real explosion in emergency applications comes as we talked about a bit earlier in the early 1980s and almost entirely in the death penalty space, where these are now applications from death row prisoners seeking to block executions or from states seeking to unblock them. And there are a lot of those. I mean, there are terms in the early 1980s when the court is granting 20, 22 of these, which, you know, historical by any historical sort of comparison, is an insane amount. But, Jack, if you talk to anyone who clerked on the court, right, between 1980 and 2015, that's what they think of as the emergency docket. They think the emergency docket is the death docket. And, you know, the shift that really happens in the mid 2010s, I think it starts before Trump, but it really becomes visible once the Trump administration comes to office, is that these same emergency applications are used for, you know, sort of nationwide policy disputes where lower courts will say, block a Trump administration policy like the travel ban. And the executive branch goes to the Supreme Court and says, we would like you to unblock this policy while the case works its way up to you. And there's a lot to say about those cases. The book says a lot about those cases. The one that I think is undeniable is that was a shift. Right. The notion that emergency applications were appropriate fodder for just whether policies should go into effect or not is not how those were approached right before the mid 2010s and is now fairly commonplace, especially for divisive, for politically controversial policies, everything from the student loan program to the Title 42 immigration policy.

[Jack Goldsmith]

And how much of it, you address this at length, and you've been very subtle about this. How much of that growth, starting in 2015, has to do with the rise of so called universal injunctions? And maybe you should explain what those are as well.

[Jonathan Fields]

Sure. So universal injunctions often, I think, unhelpfully called nationwide injunctions. So, Jack, the typical injunction, as you know, basically says the defendant has to cease doing something to the plaintiff. And what makes a universal injunction universal is that it says, hey, the defendant has to cease doing something, period, so that the defendant is precluded from acting against anyone, including non plaintiffs. What that means in context is a nation sort of a universal injunction against the federal policy blocks the federal policy universally, meaning the government can't carry out the policy at all anymore. These are a relatively new phenomenon. There's obviously a rich debate among law professors about just how new they are. As you know, I have the perhaps idiosyncratic view that we ought to also talk about the demise of nationwide class actions, which used to do some of the same work where you could certify a nationwide class to challenge a government policy. And it would have the same effect if you got an injunction.

[Jack Goldsmith]

You basically think that the universal injunction is. I think you argue that, that it's kind of a substitute for this.

[Jonathan Fields]

I mean, not a perfect one right there, kind of. Yes. Yeah, right. And, and, you know, and, and listen, I don't mean to take a strong view in the sort of the merits of that debate. I think there's no question that the court, at least in part, was reacting to this perception that these injunctions were on the rise at least early in the Trump cases. The. The problem is that so many of even the Trump cases end up not being about universal injunctions. And then once the Biden administration comes to office, you know, even if you could explain how often the court was intervening to freeze nationwide injunctions against Trump policies, Jack, presumably those explanations are about deference to the executive, and they're about, you know, the irreparable harm the executive branch suffers whenever its policies are blocked. That should have predicted, Right. A similar success rate for the Biden administration when its policies were subject to nationwide injunctions. We just haven't seen that so far. So.

[Jack Goldsmith]

Well, we saw it in the light. We saw it in the abortion pill case, didn't we?

[Jonathan Fields]

Yes, we did. I think there are reasons why the abortion case might be a bit of an outlier, but in the immigration context. Right. I mean, the MPP is a good example of this. The Remain in Mexico asylum policy. It's subject to a nationwide injunction from a district court in Texas. The fifth Circuit doesn't issue a stay. The Supreme Court also denies a stay over public dissents from the three Democratic appointees. And then, Jack, as you know, on the merits, the court sides with the Biden administration. So I don't. I don't mean to overcomplicate this. There's clearly a connection between how often the Trump administration was being subjected to universal injunctions and the willingness of at least some of the justices to intervene in such novel and aggressive ways in emergency applications. I guess I'm a bit of a skeptic about just how direct that correlation is.

[Jack Goldsmith]

Yeah, I think it's. Look, it's complicated. You lay out some of the complications. So there are two questions here. I'm going to separate out two questions because I think we can make this a clearer discussion. The first question is why were there such a huge increase in requests on the emergency docket in the supreme court starting in 2015, but really getting going through Trump on that, I think that there are several explanations, and it could just be. Could be an accident of history having to do with, A, the increasing prevalence of nationwide injunctions, especially in response, B, to lots of controversial Trump administration executive orders and regulations at the same time. C, there is an unusual gap in the judicial attitudes of the lower courts and the Supreme Court, which brought, you know, the likelihood of the merits question to the fore, making that more important. There was also, during the same period, all of the COVID emergency stuff. There was also the novel and maybe one off question of the federal death penalty. And then all this stuff, this is just my view, all of this stuff takes on a life of its own. And then we start seeing more and more cases at the margins because everybody's doing it. And I think the court, I think it's pretty clear the court let this get out of control at a point and I think it's pulling back now and we can talk about that. But I think there were explanations, plausible explanations for why we saw an increase in the docket.

[Jonathan Fields]

I think I agree with just about all of that. Right.

[Jack Goldsmith]

So you don't have to.

[Jonathan Fields]

No, no. I want to push back on a couple pieces. Listen, there's no question that there was this remarkable confluence of events that had a lot to do with a lot of what we saw. Right. Covid being a big part of that. The number of election related Covid cases, the reinstitution of the federal death penalty, even for six months. I mean, all of these are obviously catalysts, I guess. There's one point that I think Justice Alito has made and I fear is wanting for evidence. So Alito has made this point multiple times that, you know, we were just responding to the stuff that came in and you can't blame us for that. I think part of the problem, Jack, is that in the Trump cases, the court intervened in ways that it never had before, in ways that I've been critical of in the book, criticizes for sort of not really taking the underlying principles seriously and in ways that I think clearly signaled, as you suggest to all the relevant stakeholders, that the court was open for business when it came to emergency application. And I just don't think we can take the court off the hook for that.

[Jack Goldsmith]

Oh, I'm not. I'm not. Just to be clear, I'm not taking the court off the hook. I think, I mean, I have a different view of you and maybe we can get to this later of the role of the Solicitor General in the Trump administration. But I don't think the court could be taken off the hook because, you know, just from a 40,000 foot level, it wasn't being rigorous in either. In all across the run of cases and there were dozens of them, them. It wasn't being rigorous in articulating and applying the appropriate standards. It wasn't obvious that it was acting consistently across every case. And more importantly, as you just said, it just seemed like, you know, they were open for business and accepting of these things. I think they kind of invited them. I think they. There's some pushback going on now among the people in the middle of the court. So, so I'm not, definitely not letting the court off the hook for this, I take it. I think it takes, I think it deserves, to the extent there's a problem here, I think the court deserves almost all of the blame. But let's, we haven't really talked about the problem. So in a nutshell, what is wrong and you have several points here. What is the, like the main criticism or cluster of criticisms about emergency docket decision making?

[Jonathan Fields]

So I guess the, to me, right, the this is, this is a little tricky. So I'm going to try to sort of tie it all together. The court is always going to have to have a mechanism for deciding things in emergency. That's not the problem. I think the problem that emerged from the pattern of the court's decision making, especially between 2017 and 2021, because I agree with you, Jack, I think the court has already toned it down a fair amount, is the confluence of, I think, four points. So the first is the court is intervening in ways that it never had before. So in ways that are having nationwide effects, unlike prior cases. Right. The second is that the court is doing this in a context in which it's not explaining the seeming disconnect that you alluded to. Right. Between what the court was doing and what the lower courts were doing. Right. Imagine if the court gave guidance early in the Trump cases that nationwide injunctions should be the exception, not the rule that, you know, courts were making the same category error in how they were approaching. I mean, there's guidance. The court could, by not providing guidance, the court complicates the scenario. Again, those two by themselves wouldn't be a problem. But then add in the last two parts. Third, the court's interventions are inconsistent where if you actually try to divine the, if you look at the principles the parties were invoking for why the court should intervene, the court is not applying those consistently across parties with different partisan valences. So the Trump administration fares better than the Biden administration. Red states fare better than blue states on claims that looked very similar. And then fourth, and this is, I think, what ties it all together for the first time, the court treats at least some of these unsigned, unexplained rulings as precedents where the lower courts are bound to follow what really are tea leaves. I mean, you know, Jack, my favorite example of this, as you know, is South Bay 2. The, the February 2021 injunction the court issues blocking many of California's Covid restrictions on religious Services. And, you know, that decision might have been right, it might have been wrong. There's no majority opinion. And yet in the aftermath of that ruling, the court issues a whole bunch of orders vacating lower court decisions in light of South Bay 2. There's one standout case called Gateway City Church, where the court says the 9th Circuit's decision was clearly erroneous because it failed to account for. And, you know, the, the result was clearly dictated by South Bay 2. So it's the confluence of how the court was behaving, Jack, across the mine run of these cases that I think really drives home how the behavior sort of ran so far off the rails.

[Jack Goldsmith]

Yeah. So I agree with you completely on the court basically chastising a lower court for not following one of its unexplained shadow docket decisions. I mean, that was, for me, that was the low point of the courts being unprincipled during this period. But to go back to whether the court was being inconsistent across the run of cases, I mean, it's hard to tell, isn't it? Because likelihood of success on the merits is part of the test and maybe a very large part of the test. And that could be, and many people think is driving these decisions. Now, I think you might think that that's true, but it shouldn't be driving these decisions.

[Jonathan Fields]

So I guess I think two things, right? I mean, so first, likely on the merits, I think is actually hard to score square with some of the Trump era cases because, I mean, if you actually look at the Trump cases, this is, this is a statistic I didn't even believe when I first generated it. Of all of the Trump policies that get to the shadow docket, at least in the immigration space, the only one that ever makes it back on the merits is Travel Ban 3.0. Every other policy either goes away or, you know, the case is pending in the Supreme Court when Biden comes to office and gets mooted out. And the court does end up sort of going in on the merits with the Trump administration in travel ban 3.0. But Jack, in all these other cases right there, there was never any conclusive statement that the merits were, as the administration argued, put that aside, you know, even if that's, that doesn't matter, the court would have upheld all these policies.

[Jack Goldsmith]

On the merits, which I think they would have actually.

[Jonathan Fields]

So I don't know.

[Jack Goldsmith]

Impossible to know. Impossible to know. But. But to the extent that they were issuing stays or to the extent that we know what the issues were, I think there's A pretty good chance that they would have ruled in the maritime. I'll note that I don't think the government in the two big cases that at least I may be wrong about this, the two big cases that the government lost on these policies, the census case and the DACA case, I don't think they sought emergency relief in those cases, did they?

[Jonathan Fields]

I don't believe so. Although at least in I, those cases were a little different. Right, Because I don't think there were. I think in the census case there was an injunction, although it was a different. It was an injunction about testimony, not about the merits. I mean, some of those cases also move so quickly that they didn't need states. But so, but where I was going, Jack, was. But now look at mpp. Right.

[Jack Goldsmith]

So you know, explain what MPP is.

[Jonathan Fields]

Right. So MPP is the migrant protection protocol, is the remain in Mexico asylum program which President Biden. It was a Trump era policy that President Biden tried to rescind. The rescission is blocked by a nationwide injunction by a federal judge in Texas. The Supreme Court over dissents from the three Democratic appointees, refuses to stay the injunction. But then Jack sides with the Biden administration on the merits. Right? So if, if this were all about the merits or even a strong weight for the merits with light, with irreparable harm doing some of the work, then the non stay in the MPP case makes no sense because the Biden administration had all of the same arguments about irreparable harm. They had all the same arguments about balancing of the equities and they won on the merits. Right. And so I just, nowhere in the book do I try to suggest that all of these decisions were like lawless. The point is just that the pattern, the pattern looks bad when what should have been predictors for neutral application of principles across cases with different partisan valences turn out not to be accurate.

[Jack Goldsmith]

Right. Okay. And, but let me ask you this question isn't the problem, and this is one of your main points, and this is a transparency point. It's just hard to know, frankly, because the court, in so many of these decisions, they just give us orders with no explanation or they give us orders with a paragraph of explanation. And it's just extremely hard to know, even if we're being charitable, whether and how or why the court is being consistent. Precisely because, and this is a central criticism of the shadow docket, they're deciding important things without explaining why. Isn't that at the core of the problem?

[Jonathan Fields]

Yes. And so, and so this is where, like, even folks who are more willing to give the justices the benefit of the doubt than I might be should still agree that it would be better for everybody if the Court, at least where possible, endeavor to provide more of an explanation.

[Jack Goldsmith]

Yes. Okay. And I. I believe that, too. I think a lot of people believe that. But just to push it a little further and to demonstrate how difficult this is, that demand is kind of in tension with emergency order decision making. And so, again, I'm not saying it shouldn't be done, but it means that it pushes emergency orders to be more like merits orders. And that started to happen sometimes. And the Court has moved. It really has reformed itself in the last several years. It's moved. I'm just going to list things that are in the book. It's shifted some cases from the emergency docket to the merits docket. Several people, including you, suggested it do that as a way of legitimating these decisions. It started to give lengthier explanations for its. Its orders. It's. It's given opinions related to orders with lengthier explanations, including standards and some important emergency rulings. It's. In the last, you know, certainly I don't know if it's two, three, four years, it seemed a little less trigger happy in intervening in these cases. You've got Barrett and Kavanaugh seeming to signal that they're not going to be so quick in giving emergency relief. You've got oral argument in emergency applications. There's much more publicity on this issue. It seems like to me that there was a period of, and I'm just being charitable, confusion, uncertainty, and maybe a lack of principle in some cases, but that the Court is reforming itself. Is that fair?

[Jonathan Fields]

Yes, I think everything said is fair. I think you and I might quibble at the margins about how much the Court has reformed itself, but I don't think anyone can dispute that there have been reforms. And indeed, another data point for that is how many orders now are provoking dissents from some combination of Alito, Thomas and Gorsuch. Yeah, right. Where. Where they're on the wrong side. I mean, I think Justice Alito's dissent in the Myth of Pristine case, I think, is very much a. You know, something happened, and I'm. I'm upset about it.

[Jack Goldsmith]

Yeah, definitely.

[Jonathan Fields]

I guess what I go back to, though, is I think there's a larger point here that even the reforms are consistent with, which is not all of this. Right. Was just sort of like these cases fell on us. Right. So, one, you know, I'm very. The subtitle of the book, Right. Sort of is a bit provocative. It says how the Supreme Court uses stealth rulings to amass power. That's not the provocative part. And undermine the Republic.

[Jack Goldsmith]

I was going to ask you about that because that strikes me as hyperbolic.

[Jonathan Fields]

So, I mean, I know it does, and I know that it will for many. And I guess this is where I think I am a little more sharp elbowed in my criticisms of the court than even those than those who I think agree with many of the institutional critiques. Because I think if you look at, for example, the election cases, where you see the court intervening in contexts that favor Republicans and not in context that screamed out for intervention, but favored Democrats. If you look at the COVID cases, right, where the court is, you know, making new law in a case like Tanden vs Newsom while it has the chance, while there are literally cases before it on the merits document that would have allowed it to do the same thing, I do think that there is, and we might be past it now, Jack. I think that's a distinct possibility. I think there was a period of willfulness where the court was doing at least some of this, if not intentionally, then at least knowingly, where it was using emergency procedures, Jack, for disputes that weren't emergencies. And, you know, you and I and everyone might draw the line between a true emergency and a non emergency in different places. Fine. But I think one of the real problems is that we've lost the thread of what is a genuine emergency and what isn't. You know, if someone's about to be executed, like, that's an emergency. The election is tomorrow. That's an emergency. The state of Arizona can't carry out its law. You know, forgive me if this is a weird view. I don't think that's an emergency.

[Jack Goldsmith]

Yeah, that. So that it depends, it seems to me. I mean, there is a view that, I mean, emergency, it's a word that's so overused and it really has a very narrow meaning and maybe doesn't apply to any of these things, except maybe the death penalty. But, you know, if the government, whether it's the Biden administration or the Trump administration, has a policy, an important policy that's implemented, and it's been shut down by a single district court court, and it's going to mean that the government is simply not going to have a chance to basically get its policy implemented. And again, it could be Biden or Trump for two or three years if the normal processes take their course. That strikes me as a very Important thing that the federal court system should be able to deal with whether it's called an emergency or not. But, but having said that, I agree with your basic point that as I said a couple of times, I think the court lost. The thread, was being too aggressive on this stuff. I would say, especially in some of the religious liberty cases, for some of the reasons you stated, that they were really getting into the merits and changing legal principles. It seemed without adequate deliberation or normal deliberation. That was the context in which they were issuing orders to the lower courts to abide by an under explained emergency order and the like. So I'm not disagreeing with you that the court went too far, but I think it's important to acknowledge, and I think you get credit for this, Steve, that the court has, is aware of this now. I mean, you know, Kagan has been highlighting it a lot, especially I think her dissents got more traction than some of the earlier ones, the chief joining some of those dissents. But I think we're going to a better place. And this, this just leads me, though, to the last big picture set of questions to ask. And that is, what should we do? I mean, your, your reform proposals in the end are. I don't mean this as a criticism because I don't have better ideas. They seemed a little tepid and maybe tepid's not the right word. Tentative.

[Jonathan Fields]

Yeah.

[Jack Goldsmith]

And it's. It this, it seems to me that emergency, the emergency orders docket is such. There are so many factors that come in the form of standards and lend themselves to standards and not rules, I. E. It's very hard to come up with a set of rules to deal with all the varieties of emergencies that might arise in different procedural postures with different things below happening. Could be a stay, could be an injunction, could be the district court did one thing, the court of appeals did another. Could be a state ruling, could be a federal ruling. I think it's very hard to come up with firm rules here about how to deal with this. And you didn't really propose firm rules for how to deal with this.

[Jonathan Fields]

No, I mean, so I actually think, I mean, this is actually a great way to tie things together. Your point about the sort of governments whose important nationwide policies are thwarted by single district judges is exactly how I think we ought to be talking about this because to me, that's a problem, but it's a problem that ought not to have as a principal mechanism for redress be an emergency application of the Supreme Court. And so part of why I think my reform proposals are tentative is because I think part of how we ought to talk about the shadow docket, how we all talk about the court in general, is by talking about the shape of the Court's docket as a whole. And you know, what Congress should do, frankly, Jack, what the Court should encourage Congress to do, to take pressure off of the shadow docket and to sort of to provide mechanisms for getting these kinds of cases to the court for plenary review faster, whether it's to bring back three judge district court or just to expedite merits review of nationwide injunctions, to sort of to think about context in which we actually don't want the Court treating as an emergency a case that isn't right. Like, there are lots of ways to skin this cat. That's a weird metaphor, but. Right. But it seems to me that the first place, I mean, part of why I think the reform proposals are tentative is because, like the book itself is the reform, right? I mean, like getting the public invested in this conversation, having the kinds of conversations you and I are having today, that was my first goal, right? Was to just sort of have us appreciably talking about this part of the Supreme Court's work in any conversation about the Court as an institution. And you know, I don't dispute for a second that reasonable folks are going to disagree about the ideal ways to clean up all of these processes. My point is just that, like, as soon as we started talking about them, it was pretty clear even to some of the justices that they needed to be cleaned up. And so to me, the reason why some of the specific proposals are tentative is because the big proposal is that we just need to talk about this. Because just talking about it, I think, reveals problems that Jack, I think folks from across the ideological spectrum can agree to.

[Jack Goldsmith]

Yeah, I think everybody agrees that looks at this from the outside, that we don't have, at least for the last five years, taken in the aggregate, we have not had the ideal process, the ideal mechanisms in place. Everybody agrees with that. One thing we haven't touched on is how the rise of the emergency orders docket and the shatter docket more generally in importance in the last seven or eight years has been accompanied by an ever smaller merit docket. I want you to talk about what you think the relationship to that is, and then just finally, you said this once or twice, but I want you to end with it. Your bottom line point is really about this is just something that can't be ignored. The shadow docket is in many ways as important if not more so than the merits docket. So if you could just comment on those and then we'll wrap it up.

[Jonathan Fields]

Sure. So, I mean, I think the short version is it's correlation, not necessarily causation, but when the Court is spending so much more time on high profile, divisive emergency applications. There were last term, I think there were north of 35 applications from which at least one justice publicly dissented. Right. That, that's a finite resource, Jack. Right. That's consuming resources that the Court doesn't have a limitless supply of. And so I don't think it's a coincidence that as we've seen more and more attention and bigger and bigger rulings on the shadow docket in the last five, six years, we've seen this decline, you know, from 70 cases a year, 75 cases a year, into the 50s on the merit stocket. And I don't think that's healthy. I mean, I, you know, even I, the sort of the liberal progressive law professor, think that this Court ought to be doing more, which I know strikes folks as weird. What that really dovetails, though, with is the broader point of the book, which is that we should talk about the Court as an institution holistically. We should talk about its relationship with the other branches holistically. We should talk about the nature of the Court's power and the disputes the Justices are choosing to hear holistically, because that's how we talk about institutions. And the more that we think about, COVID and teach the Court as the sum of its merits decisions, you know, the neutral point is that's just inaccurate and it's incomplete. The more sort of cynical point is that's actually playing into the Court's own hands and sort of reaffirming that, you know, it is removing from public view how much even that slice of the Court's work is carefully controlled and curated by the Justices. And so it seems to me that, like, you know, whatever folks think we should privilege and prioritize when it comes to reforming the Supreme Court, I just want to start by having the same conversation about it. And I hope that the book will empower folks who may not have known some of this history, who may not know these details, and even the folks who do, right. To sort of to think about how to better talk about the Court, even if we might reach different conclusions.

[Jack Goldsmith]

Yep, that's a great place to end, Steve, You've definitely accomplished that in this book. Congratulations.

[Jonathan Fields]

Thanks, Jack. I really appreciate it. And I should say for the, for the listeners who may not know just how valuable your comments were along the way and how much better the book is because of them.

[Jack Goldsmith]

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