“Everyone is Overreacting” on the Tariff Ruling, Stephen Vladeck Says

Summary

Podcast Summary: The Political Scene | The New Yorker

Episode: “Everyone is Overreacting” on the Tariff Ruling, Stephen Vladeck Says
Date: February 28, 2026
Host/Panel: Susan Glasser (host), David Remnick, Evan Osnos, Jane Mayer
Guest: Stephen Vladek, Supreme Court scholar and professor at Georgetown Law

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Overview of the Episode

This episode tackles the Supreme Court’s recent high-profile tariff decision and examines its broader implications for American democracy, executive power, and the court’s relationship with Donald Trump’s administration. The conversation features expert analysis from Stephen Vladek, who argues that both praise and criticism of the ruling are overblown and that “everyone is overreacting.” The episode dives deep into the inner workings of the court—including its divisions, shifting dynamics, the “emergency docket,” and the looming threat of executive defiance.

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Key Discussion Points and Insights

1. Setting the Stage: Contrasts in Political Imagery

• The episode opens with light banter about Joe Biden flying commercial, sharply contrasting with the lavish imagery surrounding Trump and his associates.
• [00:01-00:43] – This sets up a theme of contrasts in political behavior and sets the context for broader questions about American democracy.

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2. The Supreme Court Tariff Ruling: Are We Overreacting?

• Vladek argues that the media and commentators are overstating the significance of the recent Supreme Court tariff decision.
• “Everyone is overreacting. Adam Liptak saying in the New York Times that it was the Supreme Court’s declaration of independence from President Trump seems remarkably hyperbolic.” (Stephen Vladek, [03:59])
• He notes Trump has mostly done “unimaginably well” before the Court over the past year and this case is a statistical outlier, not a turning point.
• Vladeck’s main point: This case is a one-off repudiation, not evidence of a broader judicial shift against Trump.

Key Quote

• “It’s about not losing the forest for one tree, where there’s just been so much work by the Supreme Court to enable bigger and more problematic lawlessness by this executive branch.” (Stephen Vladek, [05:10])

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3. Is the Court Curbing Executive Power?

• Discussion about whether the ruling genuinely signals a change in the Court’s approach to executive authority.
• Vladek stresses the Court often sides with the executive when constitutional issues are in play, and this case should be seen as narrowly statutory.
• “If this is really about empowering Congress, how come the Court was stepping on Congress’s toes over and over again in all those other cases?” (Stephen Vladek, [07:05])
• Emphasis on the importance of context and the broader pattern: The tariff decision is a “speed bump, maybe a harbinger of more speed bumps, but not a pivot.”

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4. Shifting Conservative Fault Lines on the Court

• Panel explores internal divisions, especially within the conservative bloc.
• Vladek identifies emerging patterns: Thomas and Alito as most reliably pro-Trump; Roberts and Barrett as potential swing votes; Gorsuch and Kavanaugh jockeying in the middle.
• “If you’re thinking about how to count to five… the math really starts with the Democratic appointees and then goes to the chief and Barrett and nobody else.” (Stephen Vladek, [10:19])

Key Quote

• “Those two–the chief and Barrett–really are emerging as the middle of this court.” (Stephen Vladek, [10:49])

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5. The Court’s Approach to Congressional Power

• Vladek critiques the inconsistency of conservative justices who extol congressional power in some rulings (e.g., Gorsuch's concurrence), yet have enabled executive overreach in others.
• He points to appropriations as Congress’s traditional “superpower,” which has also been eroded.
• “Where there’s even an iota of claim of presidential power, all of a sudden, maybe not so much with Congress. That’s the tension that I think Gorsuch’s opinion doesn’t remotely acknowledge.” (Stephen Vladek, [13:56])

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6. Thomas and Alito: Politics or Principle?

• The discussion delves into the perceived partisanship of Thomas and Alito, with Vladek noting their inconsistency depending on which party controls the White House.
• “When the best answer is that the delegations are different because one was invoked by a Democrat and one was invoked by a Republican, that is not what the lawyers would call persuasive, but they would call it politics.” (Stephen Vladek, [15:03])

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7. Looking Ahead: The Upcoming Supreme Court Docket

• Vladek briefly previews major cases looming on the Court’s agenda: Trump v. Slaughter (unitary executive power), a Federal Reserve personnel case, and birthright citizenship.
• He anticipates some rulings will still favor Trump and warns not to mistake a mixed docket for true balance.
• Ongoing “emergency applications” (or shadow docket) are where much executive power is quietly sustained.

Key Quote

• “What’s really actually happening is the court is in lots of other places and in lots of other ways, enabling more and more behavior by the administration that I think could be fairly described as lawless.” (Stephen Vladek, [18:50])

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8. Understanding the Shadow Docket

• Vladek explains the rise and significance of the emergency or shadow docket—where nearly 99% of decisions now occur.
• These cases lack full briefing or public scrutiny, yet are pivotal for Trump administration policies.
• He highlights alarming statistics: Trump’s reliance on emergency appeals has exploded compared to previous presidents, and full merits decisions have shrunk.
• “Just during the Bush and Obama administrations, the federal government only sought emergency relief from the Supreme Court a total of eight times. President Trump during his first term… 41 times. In his first year in office in the second term, President Trump went to the court 32 times.” (Stephen Vladek, [22:21])

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9. Elections, Emergency Docket, and the Risk of Judicial Defiance

• The panel presses Vladek on whether the Court would resist attempts by Trump to manipulate or seize control of elections.
• Vladek doubts the justices would give Trump carte blanche on something like nationalizing elections or seizing machines. But he notes: “Not the lines I would draw... but I actually do think that if we really were to see a concerted effort by President Trump to assert unprecedented... power over elections, I think this court probably pushes back.” ([24:35])
• The politics of defiance are changing; presidents may feel more emboldened to ignore judicial rulings.

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10. The Growing Threat: Executive Defiance of the Courts

• Vladek worries about a general trend of delegitimizing the courts by the Trump administration, citing calls for impeaching judges and open declarations of “war” against the judiciary by DOJ leaders.
• “If you appease a bully, they’re not going to back down. And so this is, I think, the real trick: how do we preserve enough public faith in the credibility of the courts that it’s still a non-starter politically for even this president to defy an adverse ruling?” (Stephen Vladek, [29:16])

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11. The Politics of Potential Supreme Court Retirements

• With rumors about Justice Alito retiring, Vladek discusses the likelihood and politics of timing for retirements.
• He emphasizes the strategic importance of Senate control, noting that Alito wouldn’t step down under a Democratic majority, and Thomas is eyeing a longevity record.
• “He [Thomas] has said that he wants to die, you know, on the court… he’s not far away from the all-time longevity record for a justice.” (Stephen Vladek, [32:32])

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12. Analysis & Reflections by Panelists

• The episode ends with the panel unpacking Vladek’s core insights:
  • The Supreme Court is deeply shaped by both internal dynamics and external political pressures.
  • Caution against “overreaction” to single rulings; the pattern shows more continuity than change.
  • Increased anxiety about whether politics outside the Court (and within the GOP) would prevent a president from defying judicial authority today as in the Nixon era.
• On Roberts: The Chief Justice is portrayed as a creature of earlier Republican establishments, now wrestling with the consequences of the Court’s politicization and his own decisions, including those that paved the way for Trump.

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Notable Quotes & Memorable Exchanges

• “Everyone is overreacting.” (Stephen Vladek, [03:59])
• “Don’t lose the forest for a tree.” (Stephen Vladek, [05:10], later echoed by Susan Glasser [37:01])
• “The court has been almost a monolith in support of the executive branch.” (Stephen Vladek, [07:56])
• “If you appease a bully, they’re not going to back down.” (Stephen Vladek, [29:16])
• “The tiger always eats you.” (Evan Osnos, speaking about Roberts and political compromise, [43:22])
• “There is a war that the Trump administration is waging on the credibility and legitimacy of the federal courts.” (David Remnick, [39:24])
• “The chief and Barrett really are emerging as the middle of this court.” (Stephen Vladek, [10:49])
• “Justice Thomas has lost the plot?” (David Remnick, [14:57])
• “He [Roberts] is a radical in an institutionalist’s robe.” (David Remnick, [43:19])

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Timestamps for Key Segments

• [03:59] – Vladek: “Everyone is overreacting” on tariff decision.
• [05:10] – “Don’t lose the forest for one tree”: Vladek on wider context.
• [07:05] – Court’s approach to executive power.
• [10:49] – Who are the “middle” of today’s Supreme Court?
• [13:56] – Role of Congress and the Court’s selective “support.”
• [15:03] – Politics behind Thomas and Alito's judicial reasoning.
• [18:50] – Shadow docket and scope of Court’s support for Trump.
• [22:21] – Emergency docket statistics and consequences.
• [24:35] – How would the Court handle election-related executive overreach?
• [29:16] – Dangers of delegitimizing the Court and appeasing executive defiance.
• [32:32] – Thomas’s ambitions and unlikely retirement.
• [37:01] – “Don’t lose the forest for a tree” metaphor revisited.
• [43:19] – Roberts: “A radical in an institutionalist’s robe.”

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Conclusion

This episode provided a nuanced, context-rich, and occasionally sobering look at the Supreme Court’s current trajectory under Trump II. Stephen Vladek’s core argument is that neither panic nor celebration over individual cases like the tariff ruling are justified; the broader trends—especially those quietly advancing on the shadow docket—reveal a Supreme Court much more supportive of executive power than many headlines suggest. The panel reflects on the worrisome implications: a Court increasingly influenced by politics, at risk of being defied, and ultimately pivotal in the fate of American democracy in a turbulent era.

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For further reading:
Check out Stephen Vladek’s newsletter, One First (stevevladek.com), for more detailed breakdowns of the Supreme Court’s inner workings.

Transcript

[David Remnick]

So I just heard from a friend whose family is on their way to spring training down in Sarasota. And they were at the airport and they bumped into none other than Joe Biden, who's just flying commercial, just like an ordinary Joe. I mean, and I'm thinking, wow, what a contrast to the front page of the New York Times with pictures of gold coins with Trump's face on it and Kristi Noem's fancy plane that she wants and Cash Patels private jets to

[Evan Osnos]

Italy on our dime to enjoy the hockey game. Yeah, I mean, Amtrak of the skies, I guess.

[Susan Glaser]

Yeah, right, exactly. But the question is, does he get the economy plus seat?

[Evan Osnos]

More peanuts.

[Susan Glaser]

Welcome to the Political Scene from the New Yorker, a weekly discussion about the big questions in American politics. I'm Susan Glaser and I'm joined by my colleagues Evan Osnos and Jane Mayer. Hi, Evan.

[Evan Osnos]

Good morning, guys.

[Susan Glaser]

Hi, Jean.

[David Remnick]

Hey there.

[Susan Glaser]

Great to be with you. Today we are turning to the Supreme Court. In the coming few months, we are expecting the justices to hand down more major decisions on everything from birthright citizenship to the president's power to fire executive officials, to questions that cut to the core of how American democracy works. With so much at stake, this feels like just the right moment to ask just where is the Supreme Court headed? Evan, we're coming out of this tariff decision. What was your reaction to that news and where we are a week later?

[Evan Osnos]

Well, it was fascinating to see Trump's reaction to that news. You remember, he found it deeply disappointing. And then he used this very telling word. He said, I am ashamed of certain members of the court. What's fascinating about that is the power dynamic. It implies, you know, he is the father figure. He's ashamed of these recalcitrants, employees or people that he put into this position in some ways. And then, of course, what did he do? He immediately said he's gonna figure out some other loophole by which to reimpose the same tariffs. What I think is telling, and I wanna hear more about this in our conversation today, is what does that suggest about Trump's growing, let's call it what it is, defiance of the Supreme Court's authority as a co equal branch of government. Are we edging towards the point when he finally says, I'm not just ashamed, but I'm gonna disregard it?

[Susan Glaser]

So, Jane, you are literally writing a book on the Supreme Court and how we got to this moment. What is the conversation that you're hoping to have with our guest today?

[David Remnick]

Well, yeah, you know, one of the questions I've got. Is, is this now a MAGA court? You got a 6:3 conservative majority. Are they Trump's justices? Is there still law? Is there still principle? Are they there just for him or will they stop him?

[Susan Glaser]

Good question. To help us make sense of it all, we are so pleased to have with us truly one of the country's leading Supreme Court scholars, Stephen Vladek. He's a professor at Georgetown Law. He's the author of the Shadow Docket and the writer behind the fantastic Substack newsletter. One first, Stephen, really appreciate you joining us today. Welcome to the show.

[Stephen Vladek]

Thanks for having me. It's a real treat to be here.

[Susan Glaser]

Well, okay, so we have many, many questions for you, but we might as well start with the news. Even though it's been just basically a week since the Supreme Court's tariff decision, some people are calling it a major shift. I believe David French said he called it the most important Supreme Court case of the century. I don't know if you agree with that or not. I see some head shaking since this is an audio podcast. But let's just start with the tariffs. And what do you think the news in it was and what do you make of how to contextualize it?

[Stephen Vladek]

Sure. I mean, I think the most important thing to say about the tariffs ruling is that everyone is overreacting. You know, overreacting. Adam Liptak saying in the New York Times that it was the Supreme Court's declaration of independence from President Trump seems remarkably hyperbolic. David French calling it the most important Supreme Court decision of any relevant time period, except maybe the last 10 days, I think is probably hyperbolic. You know, it's a big loss for Trump on a policy issue, although, as we've already seen, you know, not in a way that necessarily prevented him from trying to impose tariffs other ways. But I don't see how you can look at this one ruling in the broader context of we're now up to, I think, 32 total decisions by the Supreme Court involving President Trump over the last 13 months and somehow see some massive shift or some inflection point. I mean, Trump has done incredibly, I would even say unimaginably well in the Supreme Court over the last year plus, and those decisions have allowed him to do so much of the stuff he wants to do that I don't know that you can see the tariffs case as anything other than a one off repudiation without more data.

[Susan Glaser]

Okay, but weren't you glad that it was a repudiation?

[Stephen Vladek]

Oh, sure. But I mean, Susan, two things can be true at once. I think the court got it right. I think especially Justice Kagan's concurrence on behalf of herself and Justice De Sotomayor and Jackson, as someone who doesn't think the major questions doctrine, which we maybe will talk about a little more, is actually a thing, I think the right answer here was the one Justice Kagan provided, not Chief Justice Roberts. So, yes, the court got a big one right, but I was a math major in college, so I care about the denominator, not just the numerator. And having one in the numerator does not tell us anything about the denominator. The court has gotten a lot of really big ones wrong over the last 13 months in ways that have allowed President Trump to cut the Department of Education in half, to kick transgender people out of the military, to revoke temporary protected status, or hundreds of thousands of immigrants. I mean, you know, the pocket rescission, $4 billion in foreign aid funding. And so, Susan, to me, it's not about whether the tariff decision was right or good. It was both of those things. It's about not losing the forest for one tree, where there's just been so much work by the Supreme Court to enable to me even bigger and more problematic lawlessness by this executive branch.

[David Remnick]

One of the things that the takeaway seems to be about this ruling is that it's finally putting some kind of curb on executive power. And I, I guess what I wonder is what do you make of somebody like Neil Gorsuch who's written in his opinion that there is a branch that's called Congress, and it has an important role to play, and we need to recognize that. Yet just not very long ago, he was voting along with the immunity decision, that basically, the president can't be held responsible for almost any kind of criminality so long as he can claim it's in the line of his work. How do you balance that? Have they really put down a curb on executive power?

[Stephen Vladek]

No. I mean. Right. I mean, I don't think you balance it. I think this is why you have to tell the whole story. And it's not just. It's not the immunity decision by itself. I mean, this is also the same Neil Gorsuch who has voted over and over and over again over the last year to freeze lower court rulings that had enforced statutes against President Trump. So whether in the immigration space or the appropriation space or the removal of agency head space or, you know, I mean, we can keep going. If this is really about empowering Congress, if this is really about trying to motivate Congress to flex its constitutional muscles. How come the Court was stepping on Congress's toes over and over again in all those other cases? And I think, you know, part of the problem to me is that the terrorist case is what the lawyers might call a pure statutory interpretation case, meaning the only question before the Court was what this 1977 statute means versus all of these other cases that have some constitutional overtones or undertones, where the Trump administration is arguing that Congress is constitutionally disabled from doing something. And in those cases, the Court has been almost a monolith in support of the executive branch. And so the point is not to sort of refuse to take good news. The point is to put the good news in context. And I think it's just way too early to view the tariff decision as anything other than a speed bump. Maybe we'll look back and say a speed bump that was a harbinger of more speed bumps to come. But, you know, the notion that we can sort of lionize the tariffs ruling and ignore all of the other damage that I think the Supreme Court has done, not just in the immunity ruling, but since President Trump came back to office last January, I think is really misleading. And verges on gaslighting.

[Evan Osnos]

Well, to that point of what this ruling suggests and doesn't suggest, I wonder if you could help us understand something about the conservative supermajority here, because we saw them split on the tariff case. You had Justices Thomas, Alito and Kavanaugh dissenting. What can you tell us about the internal dynamics here within the conservative block? Are there fault lines emerging that are meaningful?

[Stephen Vladek]

Yeah, I mean, I think we've seen. We've seen those fault lines even before President Trump came back to office last year. But I think we're seeing them more and more often. I don't know that the fault lines are super bright, but we certainly at least see, generally, Justices Thomas and Alito almost invariably voting in favor of this administration. We see the Chief justice and Justice Barrett as, I think, the ones of the six Republican appointees, the ones who are the least likely to reflexively vote for this administration, the ones who, you know, you might see dissent. I mean, if we look at, for example, the 31 rulings on emergency applications over the last 13 months, the two Republican appointees who have joined the Democratic appointees the most are Chief Justice Robertson, Justice Barrett. So, you know, those two sort of two justice pairs, I think, have become somewhat more predictable. And then there's Gorsuch and Kavanaugh, and I Think what the Tariffs case shows is that those two are sort of jockeying with each other for the middle of the conservative block. Sometimes, you know, Gorsuch will go with the chief and Barrett and maybe even the Democratic appointees. That's what happened in the Tariffs case. Sometimes he'll go with Thomas and Alito. I think the larger point, Evan, though, and this is, you know, when I think about the court and the dynamics, the reality is, if you're thinking about how to count to five, how do you build a majority in a case that involves either the Trump administration or some other hot button, ideologically charged topic? It seems to me that for progressives, for Democrats, you know, the math really starts with the Democratic appointees and then goes to the chief and Barrett and nobody else. Yeah. That the chief and Barrett really are emerging as the middle of this court. And that's on display in the Tariffs case, too.

[Susan Glaser]

So, Stephen, on this point of how to understand the makeup of the court right now, which seems so important, lots of folks have been sort of clinging onto that tree in the forest. One of the things I've seen cited over and over and over again is that concurrence by Justice Gorsuch in which he basically makes the case for Congress. Right. He says, you know, this is the process by which the nation can tap the combined wisdom of the people's elected representatives, not that of one faction or man. And to me, what's fascinating is your broader point about, over the last year, supporting the executive again and again and again at the expense of Congress's powers. And I'm just curious, is there a way for us to understand or to define where those Republican justices fall down? Is it just sort of the culmination of a view that the unitary executive has more power than we thought it did, or a disdain for Congress? Help us understand that piece of it.

[Stephen Vladek]

I mean, I think it's all of the above, Susan. And so I think three things maybe are all true in one breath, which is when there's any constitutional argument in the case, we have a court that is inclined to side with the executive more than any of its predecessors at any other point in American history. And so that, I think, explains, for example, Susan, you mentioned the unitary executive cases, the idea that a statute that limits the president's ability to control the executive branch is unconstitutional. Court hasn't actually said that yet, although we're waiting for the ruling in Trump vs. Slaughter, in which I think the court will say that. So, you know, any story about we want to empower Congress Unless it's regulating the executive branch is not necessarily a story about empowering Congress. Ditto appropriations in the power of the purse. I mean, historically, that was Congress's superpower. Appropriations was the way that Congress was dominant in policymaking. It's the only congressional power in the Constitution that the Constitution literally says Congress has it and nobody else. And even there, we've seen, you know, I think it's four different emergency docket rulings from the Supreme Court over the last year that have allowed President Trump to basically ignore the appropriations power. So, you know, I think it's. It's heartening to hear and to see Justice Gorsuch's owed to a institutionally responsible Congress. I think, you know, that would be an enormous improvement.

[Susan Glaser]

Right.

[Stephen Vladek]

But, you know, why is Congress sort of not institutionally responsible? I think the Supreme Court bears some of the blame here. I mean, just one guy's one really small example. Take the negotiations over the shutdown last fall.

[Susan Glaser]

Yeah.

[Stephen Vladek]

You know, if you're a Democratic negotiator trying to figure out whether you're going to agree to a deal with the Republicans, and you have the Supreme Court saying President Trump can ignore any deal you make, why are you making a deal? What is in it for you at that point? And so I guess the promise is that one walks away from the overall body of cases here, seeing a court that is talking out of both sides of its mouth, that where it's really just a sort of a pure, plain vanilla statutory interpretation case. Yes, we want Congress, but where there's even an iota of claim of presidential power, all of a sudden, maybe not so much with Congress. That's the tension that I think Gorsuch's opinion doesn't remotely acknowledge and that I think the. The folks who have been extolling its virtues since it came out have not fully, I think, addressed.

[David Remnick]

Can we have one look at Clarence Thomas dissent? He doesn't even seem necessarily to accept that Congress has the powers of the purse. And for his argument, if I'm reading this right, he's going back to some lawmaker in England in 1611 and talk about the relationship between the monarch and the Parliament instead of talking about the Constitution. I saw a column suggesting that Clarence Thomas has lost the plot. Has Clarence Thomas lost the plot?

[Stephen Vladek]

You know, it's a fair question. I guess my reaction is that both Justices Thomas and Alito have a remarkable tendency of finding arguments that work when it empowers President Trump and of not finding those arguments remotely persuasive when there's A Democrat in the White House. And, you know, I think part of the problem I have with the tariffs case is not the result. It's that take the three dissenters, right? Justice Kavanaugh wrote what was called the principal dissenting opinion, which was joined by Thomas and Alito. And Kavanaugh's basic argument is that, oh, in a foreign relations or national security case, we, you know, we interpret text broadly. We defer the president. Well, you know, the student loan debt forgiveness program that President Biden tried to get out into the world was based on a very similar statute, which was passed after 9, 11 and was designed to give the Secretary of Education the power to react to a national emergency by taking steps he thought were appropriate. Now, we might not like those delegations. How are those delegations different? And I think, you know, when the best answer is that the delegations are different because one was invoked by a Democrat and one was invoked by a Republican, that is not what the lawyers would call persuasive, but they would call it politics.

[Evan Osnos]

Right.

[Stephen Vladek]

And so part of the problem here is that you have sort of, again, I think the middle of the court really is, at least in its mind, trying to be consistent whether or not we're persuaded. But I think there are justices, you know, maybe even on both sides, but especially, you know, the ones who are writing the loudest, who are not explaining the inconsistency in their voting patterns.

[Evan Osnos]

I want to tie a couple of these things together that you've talked about, Stephen. You know, you've now really helped us understand some of the subtleties within the conservative block. But then also, you've mentioned this tantalizing fact, which is that, and you've written about it. You said at one point there's less daylight between Barrett and the Democratic appointees on some issues than there might be between her and other Republican appointees. So thinking forward, how significant is that? How much could that actually impact the outcome of some important cases?

[Stephen Vladek]

Yeah, I mean, this is the right question. And, you know, if I could be confident in my predictions, I wouldn't be a law professor. So let's get specific for a second. So there are three other big Trump cases on the court's argument docket, you know, where we're expecting big rulings from the court this term. So one is, we already talked about Trump versus Slaughter, about whether, you know, every statute that insulates an executive officer from direct political control is unconstitutional. Evan, I think Trump's gonna win that case. I mean, I think that was the consensus after the oral argument in December. And so, you know, is that, is that gonna be a case where Justice Barrett breaks from the other Republican appointees? I can't imagine that it is. If I'm confident about nothing else this term, is that that ruling is going to be six to three. Yeah. There's the narrower firing case regarding Lisa Cook, a member of the Federal Reserve Board, where I think Trump's going to lose that case because they were just so clumsy about how they went about trying to remove her from the Board of Governors. But that's such a small case. Like, it's about one person and one agency. And then there's birthright citizenship, where I also think Trump's going to lose. And, you know, folks are going to say, oh, look, the Supreme Court's more balanced than people say, and the Supreme Court's not in the bag for Trump. Well, while all this is happening, there will be still more of these emergency applications where the Trump administration is trying to get the court to let it keep doing stuff that lower courts have said is unlawful. Just on Thursday, the Trump administration filed its 33rd emergency application since it came to office last January, this one trying to let it revoke temporary protected status for Syrian nationals in the United States. And so we're conditioned to think about the court as the sum of its merits docket, which means, you know, we'll look at the tariffs case and birthright citizenship and slaughter and say, oh, it was a mixed bag for Trump. And what's really actually happening is the court is in lots of other places and in lots of other ways, enabling more and more behavior by the administration that I think could be fairly described as lawless.

[Susan Glaser]

Well, that's a perfect transition, Stephen. We're going to take a quick break, and when we come back, let's actually dig in a little bit more to what's coming up on the docket and your expertise here, which is in the emergency docket. The Political Scene from the New Yorker will be right back. If you've been enjoying the show, please leave us a rating and review on the podcast platform of your choice. And while you're there, join us. Don't forget to hit the follow button so you never miss an episode. Thank you so much for listening.

[Stephen Vladek]

Hey there, it's David Plotz, host of Slate's political Gabfest, the longest running politics podcast. It can be hard to know what news is worth your attention, which is why every week my co hosts, Emily Bazelon and John Dickerson and I find the most important stories of the week. So you don't have to. We dig into everything from Trump's immigration policies to critical court cases and everything in between. We also keep some good humor while doing it.

[Evan Osnos]

Why is the tic tac shaped that way?

[Stephen Vladek]

Listen to the Political Gabfest now and join us as we go even deeper on the daily News you're already following. That's Political Gabfest, wherever you get your podcasts.

[Susan Glaser]

All right, so, Stephen, there's a statistic that really jumps out in your work. Nearly 99% of of the court's decisions now come through what's known as the shadow docket or the emergency docket. We've been talking about that. Explain to us how this has sort of become the thing that's taken over. I think Americans don't really understand. They look at something like the terror case and they think that's, that's the agenda. We can talk about what's on the formal agenda. You mentioned birthright citizenship, but, you know, it's this shadow docket that where the bulk of the court's rulings about the Trump administration's powers have been coming. And I'm not sure any of us really understands it fully, you know, in how it's affecting our politics.

[Stephen Vladek]

Sure. You know, the short version is litigation takes time. And so, you know, the tariffs case got to the Supreme Court unusually quickly. The typical case can take two, three, four, even six years from when it's filed to get to the Supreme Court. And there's often a question of what should the status quo be during the litigation. So if you're challenging a policy, should the policy be allowed to stay in effect for the duration of the litigation? Should it be blocked for the duration of the litigation? That's not a new question. That's actually been a question courts have dealt with for as long as we've had injunctions, for as long as we've had court orders that blocked things. But it's become much more common for parties to seek and for courts to grant what the lawyers call emergency relief, which is basically to adjust the status quo for the duration of the litigation. And that's where the Supreme Court really has transformed over the last decade. So, you know, the, the first major ruling on a nationwide policy that we saw from the Supreme Court on an emergency application was 10 years ago in February. It was the Clean Power plan from President Obama that the court blocked five to four. What's striking about this part of the court's docket is that those cases get much less briefing. They are almost never argued, and they are usually decided with no opinion whatsoever, or maybe a very, very cryptic one sentence, one paragraph, two paragraph ruling. And, you know, historically, the Supreme Court really limited those kinds of cases to the death penalty and maybe election disputes on the eve of an election. But it's only over the last decade that it has expanded to encompass a whole range of statewide or federal policy disputes. So just a couple of data points that I think will help drive this home. Just during the Bush and Obama administrations, you know, 16 years with two fairly different presidents, the federal government only sought this kind of emergency relief from the Supreme Court a total of eight times. So once every other year, you know, President Trump during his first term, really ratcheted that up. He went to the court for this kind of relief 41 times, but it was still 41 times in four years. In his first year in office. In the second term, President Trump went to the court 32 times. So that's in contrast, Susan, to the merits docket, though, what we tend to think about when we think of the Supreme Court, where that has been shrinking over and like every year since really the 2010s, so that the court is now deciding fewer cases on the merits docket with full briefing, with argument, with these, you know, 170 pages worth of opinions, we're at the lowest level there since 1864. And so just one data point that I think is really striking. During the court's most recent full term, so the one that ended last October, the court granted emergency relief 31 times. It handed down non unanimous rulings on the merits docket 31 times. So these things have now become equivalent. And it really does reflect how much the court's work has shifted.

[Susan Glaser]

Stephen, that is, those statistics are truly amazing. And a quick follow up here, because you said a word that has got me very worried here. Talking in 2026, you said the word elections and the emergency docket. And I think I've got to ask you if we are falsely assuming that there is a red line that this group will not cross when it comes to some of the very ominous things Donald Trump has been saying about nationalizing our elections or, you know, moving to seize voting machines. So I just, I know there's no case on it yet, but this is the kind of thing that pops up on the emergency docket. And all of a sudden, you know, we don't, we're not in the same kind of a country that we thought we were.

[Stephen Vladek]

Yeah, I mean, you know, it's hard to make predictions, especially about the future. You know, I do, I do think that the court has been, in some respects, at its worst on the emergency docket in election cases, because I think that's where the justices have shown the most inclination to vote in ways that might be inconsistent as a matter of legal principle, but consistent as a matter of partisan political preference. And we already have examples from this term. I mean, the court's ruling in December in the Texas redistricting case where the court blocked, you know, a district court ruling by a Trump appointed district judge that it held that Texas's redrawing of its maps was an unconstitutional racial gerrymander. You know, Susan, we've seen a lot of those. That said, I actually do think there are lines this court won't cross. Not the lines I would draw, not the lines I think it should draw. But I actually do think that if we really were to see a concerted effort by President Trump to assert some kind of unprecedented, extraordinary power over elections, I think this court probably pushes back, maybe not unanimously for the reasons we were discussing earlier. But, you know, I think this court, for as cynical as folks have rightly become about it and for as problematic as its behavior has been, still thinks it's doing law in a way that I think the White House doesn't. And just one, you know, superficial example of that, you know, the court could have intervened in December 2020 to mess with the 2020 election results, and it chose not to. And I think things have changed a bit since that period of time, but not that much.

[David Remnick]

Do you think that the court worries at all that Trump might simply defy it? Because I know that some of the lower court judges have been certainly remonstrating about this. What happens if that happens? And is this a dynamic that you think they're weighing up there in the Supreme Court?

[Stephen Vladek]

Oh, there's no way that they're not. I mean, you know, the specter of presidential defiance, I think has been something on the court's mind since at least last March, right. When we had that judicial conference meeting where Chief Justice Roberts heard directly from, you know, Chief Judge Boasberg, the federal judge in D.C. about the concern that Trump would ignore orders when the administration ignored Boasberg's order like four days later in the alien enemies case. I think, you know, there is no question that this is on the court's mind. I think it may even be part of why some of the justices, and I would think maybe the chief justice and Barrett, again, are at the top of this list, might have been so willing to acquiesce in so many of those Emergency application rulings last year, you know, to sort of put off the confrontations between the executive and the courts. But we don't have to speculate. I mean, during the oral argument last May in the Birthright Citizenship case, there was a whole exchange where Justice Barrett expressed a fair amount of shock, I think, when she thought she heard the Solicitor General say that they didn't have to listen to the courts. And Barrett got the Solicitor General, John Sauer, to basically say, oh, we just meant the lower courts and actually we would totally listen to you. Which, you know, Barrett actually like memorializes in a footnote in her majority opinion. I think it's a concern. I think, you know, historically we have been very lucky that presidents have not had the political ability to defy the court. And my favorite example here is President Nixon in the Watergate tapes case. So the, the Supreme Court in July of 1974 rules that Nixon has to turn over the Watergate tapes. Why did he do it? Right. He didn't do it because Warren Berger was walking down Pennsylvania Avenue with a bunch of U.S. marshals. He did it because the political consequences of not complying would have been disastrous. Right. He, Nixon's calculation was that he could not defy the court and survive the impeachment trial that seemed to be coming in the Senate. Turns out he was screwed either way. Right? One of the tapes ended up being his downfall. Jane, I don't think the politics are the same today in that respect that they were in 1974. And so my concern is that it's not that it'll be a one off where just one day the administration says, we're not following this ruling. It's that we've actually seen a much more concerted broad spectrum effort on the part of the administration to delegitimize the federal courts writ large over the last 13 months. You know, President Trump calling for the impeachment of Chief Judge Boasberg, you know, the Attorney General filing up basically a frivolous judicial misconduct complaint. The Deputy Attorney General, Todd Blanch, saying multiple times at the Federal Society Convention in November that the Justice Department is, quote, at war, unquote, with the federal judges. This is not an accident. And, you know, I think part of the problem is that the court has had some opportunities, Jane, to assert itself a bit and to say, like, hey, knock it off. Justice Kavanaugh could have said after the press conference last Friday when President Trump said he's ashamed of, you know, the justice of the majority, he could have said, listen, you know, I wrote the Dissent. I think President Trump is right, but he shouldn't have said that. I think the court is picking its battles with that concern in mind. Jane. The problem is, and I think any historian of appeasement doesn't need me to say this, if you appease a bully, they're not going to back down. And so this is, I think the real trick is how do we preserve enough public faith in the credibility of the courts that it's still a non starter politically for even this president to defy an adverse ruling. And that's something I worry about a lot.

[Evan Osnos]

One of the justices who's been at the center of these questions about the credibility of the court, frankly, is Justice Alito. Justice Alito has a book coming out this fall. There is, of course, talk that he's gonna step down. I know predictions are hard, they're cheap, but we want one from you. Do you think he will retire? And if so, who takes his place? How does that play out?

[Stephen Vladek]

So I think the answer to both of your questions, Evan, is politics. And what I mean by that is I think the reason why you're hearing more and more chatter about Justice Alito is actually twofold. One, you mentioned the book, which is set to come out in October. October is a very strange time if you're a Supreme Court justice, to drop a book because you can't go out and do a book tour. October is the second busiest month for the court in its annual cycle, only after June. So that seems like a strange moment to be dropping a book if you're planning on being on the bench. But I also think the other problem is the politics. I can't imagine a universe in which Justice Alito would voluntarily retire from the court with a Democratic Senate or a Democratic president. And you guys are the experts on this, not me. But I think whatever the sort of odds are for the Democrats retaking control of the Senate this fall, they're higher now than they were four months ago. And, you know, to me, I suspect that from Alito's perspective, a lot of that decision is going to be based on how that looks four months from now when we get to the end of the term, or at least the end of the court's usual sitting in June. Is it even closer that and is even a higher, like maybe that depends on how some of these primaries go. Like, does Ken Paxton win the Republican primary in Texas, which makes that seat much more, I think, up for grabs than if John Cornyn wins the primary. These, I think, are some of the questions that will be swirling around inside the court. As for like who might replace him, I think again, politics have a lot to say about the answer because I see two buckets of possibilities. Bucket one is what we might think of as the more conventional Alito style federal appellate judge, you know, sort of darling of the conservative legal movement. And Bucka too is a trumpy. Yeah, right. Whether it's, you know, Emil Beauvais or whether it's Eileen Cannon or whether it's

[David Remnick]

Todd Blanche, is there some reason why all of the tension and chatter is about Alito retiring potentially, but never Clarence Thomas, who's been there longer than anyone?

[Stephen Vladek]

I think that that is, I think to sort of muscle memory on the part of, you know, the folks who are speculating. I mean, Thomas, he has said one thing and I think a second thing is true, both of which suggest he's not the more likely retirement candidate. So he has said that he wants to die, you know, on the court, that he doesn't want to ever retire. I don't know if he still feels that way. But the other part of the story, and this is where the, you know, being a super Supreme Court nerd comes in handy, he's not far away from the all time longevity record for a justice. So in the spring of 2028, he would pass Justice William O. Douglas as the longest serving justice in the court's history. And I don't know how public he has been about wanting that record, but I have no doubt that he wants that record.

[Evan Osnos]

Fascinating.

[Stephen Vladek]

That, I think is sort of why when you hear retirement conversation, you hear it focused on Justice Alito and not Thomas and frankly not Chief Justice Roberts. Right. I mean, there's a reason why this has been mostly an Alito conversation over the last weeks.

[Susan Glaser]

Stephen, we are so lucky to have the ultimate super Supreme Court nerd on our team today. Seriously, we could do three more hours of this. I, I feel like this has just been an absolute masterclass and we are all incredibly grateful. I know our listeners are grateful for this too. But seriously, check out Stephen Vladek's substack. Stephen, you want to tell our listeners a little bit about that because it's these are. We're all going to need some navigation here.

[Stephen Vladek]

Sure. So I write a newsletter about the Supreme Court. It's called One first, which is really a not very clever play on the Supreme Court's physical address in D.C. 1 First Street. It's an effort to try to make of these technical inside baseball nerdy things more accessible to folks who I think rightly care about the Supreme Court, but maybe don't have as much time to parse all of these micro details or accessibility to all of these legal technicalities. So it's one first. You can find [e-mail] and I hope you find it interesting.

[Susan Glaser]

Well, thank you again.

[Stephen Vladek]

Thanks so much for having me, guys.

[Susan Glaser]

The political scene from the New Yorker will be back in just a moment. Wired has always put a microscope on the people, power and forces shaping our world. Uncanny Valley brings that same fearless reporting straight to your feed. Is Doge finally over? Will AI actually democratize American healthcare? Each week, Wired journalists from across the newsroom are going to unpack where politics are technology in Silicon Valley collide. From conversations with tech leaders across Silicon Valley, Internet fandom investigations, and government crackdowns on rigged gambling, we're taking you all over the news cycle, going straight inside the priorities, pressures and power plays driving today's biggest decisions. Uncanny Valley tackles the questions keeping you up at night and helps make sense of the future taking shape right now. Listen to new episodes every Thursday, wherever you get your podcasts. All right, guys, that was fascinating. What do you think, Evan?

[Evan Osnos]

I was just gonna say someday I wanna know as much about anything as Stephen Vladek knows about the Supreme Court. And I will say in all seriousness, what he helped us do is situate not just what we all see, which is this sort of strange combination of personalities, but also the subtle dynamics of the politics outside the court and the politics inside the court, because both of those dynamics will shape the outcomes of these cases.

[David Remnick]

Yeah, and there's a tendency for people to treat the court as if it doesn't hear what's happening politically. And when he talks about how there's a fear in within the court that they might be defied, and that's why they've delayed some of these big confrontations with Trump. Makes you realize they're very much a branch of the government. This is part of their calculations. The other thing that is so fantastic about this chat with Steve Vladek is it's the context that he can provide. There's such an overreaction in the daily coverage of the excitement over the tariff ruling. And he says, yeah, no, take a look at the forest, not the trees.

[Susan Glaser]

Yeah, I loved his metaphor on that chain. You know, we've got a tree. We've got a tree. And, you know, he pointed out, you know, a tree is better than no tree. What did you guys think about his election answer? I mean, this is an incredible anxiety at the moment. There's just a story in the Washington Post this week, suggesting that, you know, Trump Allied Group circulating a proposed executive order that would essentially go the martial law, seize the ballots type route. It was meant to be reassuring, I guess. Did you find it reassuring?

[David Remnick]

Not entirely at all, I'm sorry to say. I think what he was giving us was a very careful, mixed picture, which was to say in 2020, the court did not go in with Trump's attempt to defy Biden's election, but that if you take a look at the tea leaves more closely more recently, it actually has not stood up for what most people, including the lower courts, have said is election law. And so we've seen some cave in since 2020, and I think he's warning us. And you've obviously got two justices up there who he basically defined as MAGA justices. They are Trump's judges, and that is Alito and Thomas, you know, so you've gotta start by deducting, too.

[Evan Osnos]

One of the lessons that comes through in a number of the points that he made, which bears on this question of how it might shape an election case, is the politics outside. He brought us back to the Nixon era, in which he said that Nixon felt bound to follow the court's power because the politics outside made defiance impossible. And the big difference is that today it's not at all clear that the politics outside make it impossible. Meaning that would Republicans support Donald Trump if he defied a Supreme Court decision? That is the terror. And it's changed even since 2020. It's gotten even more, as he said over the last 13 months, we've seen the politics evolve in a way that, for me, it was confirmation of something that we've sensed for a while, but is really stark when you hear it from somebody like Steve.

[David Remnick]

That's a really good point. I think, extending off of that, what he said was there is a war that the Trump administration is waging on the credibility and legitimacy of the federal courts. And I really appreciate that he brought that to light because he's saying it's no accident that there is less political support. It's beginning to erode, and it's a purposeful policy choice that the Trump administration is degrading the legitimacy of the federal courts.

[Evan Osnos]

Susan, I'm curious what you made of both his election point, but also there was this interesting thing he said about John Roberts. I'm curious what you make of how John Roberts seems to be trying to navigate this moment. What is he trying to achieve, and to what degree do you think he's succeeding or failing at it.

[Susan Glaser]

I appreciate the Chief Justice Roberts right now. To me, I've been thinking about him all the time, I would say, over the last year, because I feel like he's this sort of his self image is like he's the last Republican establishment guy. And Steve nodded to that. Right. He said, look, you know, Roberts and Barrett, they believe that they're doing law here, even if we feel that it verges into politics or, you know, at times just shoring up a rogue executive, but that still they think they're operating within the framework. Right. You know, Roberts is this creature of the Bush era in American politics, not the Trump era in American politics. And yet at the same time, he's enabled so many or even created the conditions for so much of what I see as the unraveling of our democracy right now. So I just think about Roberts all the time. And you know, he is the author of the presidential immunity decision, which was the precursor event that gave us Donald Trump in 2024. Roberts signed off on the Citizens United case in 2010, which to my mind, and Jane, of course, is our amazing expert on this and author of Dark Money. But you know, to me, that Citizens United case is the precursor event to the out of control capture of our politics by these mega billionaires like, like Elon Musk. That picture of John Roberts at the State of the Union the other day looking absolutely haunted as he and only four justices showed up for the annual ritual. I don't know, but actually the image that he left me with to your great questions about Alito and politics, Evan, these justices, they're going to be pouring over the Cook Political Report. You know, they don't care about the legal analysis. They're not going to be reading, you know, they're not tuning in to, you know, the strict scrutiny podcast. They're going to be pouring over Texas, you know, polling numbers in order to figure out what, what the future of the Supreme Court is, right, James?

[David Remnick]

Well, I mean, really, Trump never cared about, about theories of justice, about politics. He won the, you could argue in 2016 because of the list of justices that he put out thanks to the Federalist Societies, Leonard Leo. That's what carried him over and got him the evangelical and the conservative Catholic vote that tided him into office. So it's always been about politics for Trump.

[Susan Glaser]

But what about Roberts?

[David Remnick]

Well, Roberts, honestly, I think there's quite a bit of revisionist work being done about Roberts. There's a very tough, interesting book on him by Lisa Graves that reassesses was he really just ever a moderate or was he always a radical? In some ways, we think of him as you say, as a sort of a Bush justice, but in fact, he comes out of Reagan, Reagan's Justice Department. It was the beginning of this revolution in law, an effort to use the court politically.

[Evan Osnos]

That's so interesting. So in a sense, he's a radical in an institutionalist's robe is what I'm hearing.

[David Remnick]

And that's the most convincing and powerful way to go.

[Evan Osnos]

Yeah. In some ways, you saw that on his face, this amazing picture that Susan mentioned of this guy looking sort of anguished. What it struck me as is this is a person who tried to ride the tiger, and in the end, the tiger always eats you.

[David Remnick]

There you are. That is like the perfect description.

[Susan Glaser]

Yeah, that sums it up, guys. The tiger is eating us all. This has been the political scene from the New Yorker. I'm Susan Glaser. We have research assistance today from Alex d'.

[Evan Osnos]

Elia.

[Susan Glaser]

Our producer is Nora Ritchie, mixing by Mike Kutchman. Steven Valentino is our executive producer, and our theme music is by Alison Leighton Brown. Thanks for listening.

[David Remnick]

Right now, we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlemagne, the God, and so many more. That's all in the New Yorker Radio Hour, wherever you listen to podcasts

[Susan Glaser]

from prx.