What the Supreme Court Does in the Shadows

Summary

Throughline: What the Supreme Court Does in the Shadows
Hosted by Rund Abdelfatah and Ramtin Arablouei | Released June 26, 2025

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Introduction

In the episode titled "What the Supreme Court Does in the Shadows," NPR’s Throughline delves deep into the often overlooked and rapidly evolving realm of the Supreme Court’s shadow docket. Hosted by Rund Abdelfatah and Ramtin Arablouei, the episode explores how the Court's expedited decisions are shaping American policy and the broader implications for the nation's legal landscape.

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Understanding the Shadow Docket

The shadow docket refers to the Supreme Court’s ability to make swift decisions without full briefing or oral arguments, typically in response to emergency applications. Unlike the Court’s merit docket, which involves comprehensive deliberations on significant cases, the shadow docket handles urgent matters that require immediate attention.

Key Insights:

• Definition and Contrast: The shadow docket consists of quick rulings, often unsigned and brief, lacking the detailed explanations found in merit docket decisions.
• Increased Usage: Recent years have seen a substantial rise in shadow docket cases, moving from a handful annually to nearly weekly decisions.

Notable Quote:
Legal Expert Steve Vladek explains, “It’s really hard to fully understand the Supreme Court without understanding the shadow docket where the court is doing controversial stuff and is not explaining itself” (03:04).

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Historical Context and Evolution

The shadow docket's prominence is not a recent phenomenon. Its roots can be traced back to significant shifts in the Supreme Court’s operations over the past century.

Early 20th Century Reforms:

• William Howard Taft’s Influence: As Chief Justice from 1921, Taft spearheaded reforms to transform the Court into a more autonomous and powerful institution. This included the adoption of certiorari, allowing the Court to select which cases to hear, thereby controlling its docket more effectively.

Notable Quote:
Steve Vladek recounts, “The first real shift comes in the early 20th century with the rise of certiorari, with the rise of Congress giving the Court more control over its docket” (13:07).

Post-Civil War Federalization:

• Expansion of Federal Law: The Civil War catalyzed a massive expansion in federal power and legislation, leading to an increased caseload for federal courts. Congress responded by creating more lower court positions while maintaining the Supreme Court’s size, further centralizing its authority.

Notable Quote:
Vladek notes, “The modern court's power comes from the discretion that Congress gave and that the Court took to basically set its agenda” (16:05).

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Case Studies Highlighting the Shadow Docket

The episode examines several pivotal cases to illustrate the shadow docket's impact.

Alien Enemies Act of 1798 and the Trump Administration

In March 2025, President Trump invoked the Alien Enemies Act of 1798 to deport Venezuelan migrants without due process, characterizing them as Venezuelan gang members. This move triggered a series of shadow docket decisions:

• Initial Ruling: A federal judge blocked the use of the Act, prompting the Supreme Court to grant emergency relief, allowing deportations to proceed (02:43).
• Subsequent Orders: Less than two weeks later, the Court reversed its stance with an unsigned order requiring the administration to halt deportations, citing insufficient time for detainees to challenge their removal (02:59).

Notable Quote:
Vladek emphasizes, “At our peril... we're right there with you” (03:22), reflecting the episode's exploration of the Court's swift, opaque decisions.

Mifepristone Case

A critical example of the shadow docket's reach is the 2025 case concerning mifepristone, an abortion pill:

• Emergency Relief Application: The Biden administration sought to keep mifepristone on the market amid legal challenges.
• Supreme Court Ruling: The Court issued a stay without an opinion, leaving the decision process and rationale unclear (34:00).

Notable Quote:
Vladek articulates the issue: “If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences” (35:39).

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Impacts and Implications

The surge in shadow docket usage has profound implications for American governance and the balance of power among the branches of government.

Erosion of Due Process and Transparency:

• Lack of Explanations: Shadow docket decisions are typically unsigned and unexplained, undermining transparency and accountability.
• Speed vs. Deliberation: The need for swift rulings often sacrifices thorough legal analysis and consideration of broader consequences.

Expansion of Executive Power:

• Unitary Executive Theory: The Court’s shadow docket has increasingly favored executive actions, as seen in cases like the Alien Enemies Act and federal employee dismissals. This trend supports the concentration of power in the presidency, potentially sidelining legislative and judicial checks.

Notable Quote:
Vladek warns, “We have a court that is at once very into its own power, but also very into executive power” (47:43).

Impact on Lower Courts and Public Trust:

• Override of Lower Courts: The Supreme Court’s ability to swiftly overturn lower court decisions via the shadow docket diminishes the authority and function of lower judiciary levels.
• Public Perception: The opacity and frequency of shadow docket decisions contribute to declining public trust in the Court’s impartiality and legitimacy.

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Future Concerns and Conclusions

As the shadow docket continues to expand, its long-term effects on American democracy and the legal system become increasingly concerning.

Sustainability of the Current Model:

• Court Overload: The Court is struggling to manage the high volume of emergency applications, potentially delaying significant cases and overextending its capacity (38:53).
• Balance of Powers: The reliance on the shadow docket exacerbates tensions between the executive and legislative branches, weakening Congress’s role as a check on presidential power.

Call to Action:

• Public Awareness: The hosts emphasize the need for greater public awareness and scrutiny of the Supreme Court’s shadow docket to ensure accountability and uphold constitutional principles.

Notable Quote:
Vladek states, “We ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril” (50:00).

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Conclusion

""What the Supreme Court Does in the Shadows" provides a comprehensive examination of the Supreme Court’s shadow docket, highlighting its historical evolution, current usage, and significant implications for American law and governance. Through expert insights and illustrative case studies, Throughline underscores the urgent need for transparency and accountability in the Court’s expedited decision-making processes.*

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Notable Quotes:

• “It’s really hard to fully understand the Supreme Court without understanding the shadow docket where the court is doing controversial stuff and is not explaining itself.” – Steve Vladek (03:04)

• “The modern court's power comes from the discretion that Congress gave and that the Court took to basically set its agenda.” – Steve Vladek (16:05)

• “If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences.” – Steve Vladek (35:39)

• “We have a court that is at once very into its own power, but also very into executive power.” – Steve Vladek (47:43)

• “We ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril.” – Steve Vladek (50:00)

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This summary captures the essence of the episode, providing a clear and detailed overview for those who haven't listened while highlighting key discussions and insights shared by the hosts and guest experts.

Transcript

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[Narrator]

When you think about the Supreme Court, chances are you're thinking about the big decisions. Roe v. Wade, Roe Brown v. Board of Education, Obergefell v. Hodges, Dobbs v. Jackson. These Supreme Court decisions are the ones that make headlines and eventually history books. A lot of them come out around this time of year. They're decisions made after the justices sit through hours of oral arguments, write pages and pages of explanation opinions, citing precedent and making justifications. These decisions have signed arguments for and against that clearly show how each justice decided. They're part of what's called the Court's Merit Stocket. But this year, the Supreme Court has been in the news a lot for a different type of decision, ones that are taking place quickly in the shadows, often without full briefing and oral argument.

[Steve Vladek]

President Trump invoked a wartime law that.

[Ad Voice]

Gives him sweeping deportation powers, a rarely.

[Legal Expert]

Used law from more than 200 years ago. Hundreds of people who it accuses of being Venezuelan gang members to quit quickly.

[Narrator]

Expel them without hearings or due process.

[Legal Expert]

They were flown to El Salvador.

[Narrator]

Here's an example you might remember. On March 15, 2025, President Trump dusted off a rarely used wartime law called the Alien enemies Act of 1798. We covered its history in an episode back in April. This act gives the president the power to quickly deport non citizens from an enemy nation during a war or invasion. He used it to order the deportation of Venezuelan migrants who he claimed were members of a Venezuelan prison gang trend Aragua.

[Steve Vladek]

In his order, Trump described Venezuela's trend Aragua prison gang as a force invading.

[Narrator]

The US Just hours later, a legal scramble was set in motion.

[Ad Voice]

A federal judge blocked his administration from using this law to immediately deport migrants.

[Narrator]

The Trump administration wasn't ready to give up. It called for backup from the Supreme Court and filed an application for emergency relief to block that judge's order and resume deportations. And on April 7, 2025 this evening.

[Legal Expert]

The US Supreme Court backed the Trump.

[Ad Voice]

Administration in its efforts to continue deporting what it says are Venezuelan gang members.

[Narrator]

But then, less than two weeks later, the Supreme Court stepped in again with an unsigned four sentence long order issued in the middle of the night.

[Legal Expert]

The Supreme Court ordered the Trump administration to temporarily cease deporting a group of.

[Narrator]

Venezuelans, the opposite stance. And then, in the resulting confusion, the court stepped in for the third time to clarify. On May 16, the unsigned order says the Trump administration did not give people at a detention center enough time to challenge their deportations.

[Legal Expert]

Foreign.

[Narrator]

If all that is giving you whiplash, believe me, we're right there with you. This back and forth between the Supreme Court and the Trump administration has been playing out in something called the shadow docket. These are Supreme Court decisions that can be issued quickly without full briefing or oral arguments, often in response to emergency applications. And these shadow docket decisions are often simple unsigned orders saying, yes, this can happen, or nope, this can't. No explanation for why.

[Legal Expert]

It'S really hard to fully understand the Supreme Court without understanding the shadow docket where the court is doing controversial stuff and is not explaining itself.

[Narrator]

In recent years, the court has made more and more of these types of rapid decisions on its shadow docket. And that's because increasingly, presidents are asking the justices to intervene in emergencies, like the Trump administration did with the Alien Enemies Act.

[Legal Expert]

We've gone from one every other year.

[Steve Vladek]

During Bush and Obama to almost one a month during the first Trump administration.

[Narrator]

The Biden administration averaged five per year.

[Steve Vladek]

And now we're at basically one a week.

[Legal Expert]

In a brief, unsigned order, the court said the administration is free to move forward with the firing of 16,000 probationary federal employees. The U.S. supreme Court said President Trump.

[Ramtin Arablouei]

Can fire two members of independent agencies.

[Narrator]

Monday's ruling by the U.S. supreme Court was short and unsigned. It allowed the Trump administration to revoke the temporary protected status of hundreds of thousands of Venezuelans. The U.S. supreme Court says the Trump administration can continue to deport migrants to countries that are not their home nations.

[Legal Expert]

The justices did not explain their reasoning.

[Advertiser]

At all in their order.

[Narrator]

Not only are so called shadow docket cases coming up more often, but they're also starting to affect more people. That's why we're bringing you an updated version of a conversation we had a few years ago with legal scholar Steve Vladek. A lot of things have changed since then.

[Steve Vladek]

When we first had this conversation, I think you could have a plausible argument that the justices hadn't been paying close attention to what they were doing, that a lot of it was reactive and not necessarily conscious on the justice's part. That's clearly not true anymore.

[Narrator]

I'm Rend Abdelfattah.

[Ramtin Arablouei]

And I'm Ramtin Arablouei on this episode of Throughline from npr, how the so called court of last resort has gained more and more power over American policy and why the debates we don't see are often more important than the ones we do.

[Narrator]

Hi, this is Karina from Chicago and.

[Listener]

You'Re listening to through life.

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[Steve Vladek]

Part 1 the Everything.

[Legal Expert]

Else Docket.

[Narrator]

As a leading scholar of the American court system, Georgetown University professor Steve Vladic has been teaching about the courts for nearly two decades in he's the author of a book all about the Supreme Court called the Shadow Docket.

[Legal Expert]

How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Not a provocative title at all.

[Listener]

Okay, so yes, obviously it is kind of provocative. I mean, the term shadow docket is kind of provocative. So can you walk us through what exactly is hidden behind that phrase?

[Legal Expert]

Yeah, you know, it's interesting. It wasn't meant to be provocative. When the term was coined by a conservative Chicago law professor named will bode in 2015, it was really meant as just an umbrella descriptive catch all this evocative term that was meant to capture basically everything the Supreme Court does other than big fancy decisions the court hands down each spring. The shadow docket is in one sense, the negative space in which the court does everything else.

[Ramtin Arablouei]

Everything else is a lot of work. It includes basic administrative tasks, but also higher stakes decisions, things like blocking a law from going into effect or allowing an execution to go forward. Vladec is most interested in those Decisions, because over time, they've made up an increasing share of what the court does.

[Listener]

When does the court first start to shift towards the shadow docket as we know it today?

[Legal Expert]

So I think there are two dramatic shifts, like two real inflection points before the last few years, and the first is in the early 20th century. So if we go back a second, the Supreme Court for its first 101 years as an institution, was basically just a creature of Congress. I mean, yes, the court decided big cases, but its docket was controlled completely by Congress. The court heard every case Congress told it to, and no case Congress told it not to, like. Congress dictated what the court did. Congress would use its power over the court to intimidate and leverage the court all the time. Congress canceled the Supreme Court's entire 1802 sitting because the Jeffersonians were mad at the Federalists. Congress would take away the court's jurisdiction in cases it didn't want the court to decide.

[Ramtin Arablouei]

For example, after the Civil War, Congress divided the former Confederate states into five separate military districts, placing those states under military rule until they met certain requirements. When a Mississippi newspaper editor challenged the legality of this, Congress got worried how the justices might rule, and it actually withdrew the Supreme Court's jurisdiction, meaning they couldn't hand down a decision. So at this time, Congress held all the cards, and the Supreme Court's workload was huge.

[Legal Expert]

The court is overwhelmed with cases. I mean, by the late 1880s, there's a point where the court has 1800 pending cases on its docket at one point in time, all of which it's supposed to decide.

[Ramtin Arablouei]

All of this was a problem, an especially big problem for a man named William Howard Taft.

[Legal Expert]

Yeah, I mean, so, you know, I think insofar as folks know Taft, they know him as a president. But, you know, Taft, before he was president and after he was president, Taft was a lawyer, right? He was a court of appeals judge. In the 1890s, he was the Solicitor General of the United States, meaning he was the federal government's lawyer in the Supreme Court. And Taft's first love was the Supreme Court. Taft was desperate both to be on the Supreme Court and to make the Supreme Court more powerful. And so, even before he's president. While he's president, after he's president, he is pushing for Congress to reform the court. He's pushing to get the court its own building. And so Taft's vision is that for the Supreme Court to truly play the role he thinks it's supposed to play, it has to be much more autonomous. And it has to have much more control over every facet of its work. And when he becomes Chief justice in 1921, eight years after he's president, he really devotes himself to carrying those reforms into effect. And the point of these reforms was to transform the Supreme Court's role from just a bunch of judges who are the last ones to hear every single case, to a bunch of sort of judicial superheroes who sit back and decide which issues are worthy of their time and which ones are not. And so the first real shift comes in the early 20th century with the rise of certiorari, with the rise of Congress giving the Court more control over its docket.

[Ramtin Arablouei]

Certiorari, this is a total tongue twister of a term. It just means an order by which a higher court reviews a decision of a lower court. To our ears, that might sound pretty mundane, but at the time, this expanding power of certiorari gave the Supreme Court much more control over its work.

[Legal Expert]

And what that does is it creates this sort of first step process, the are we going to take this case or not? Process, which is entirely a black box. Right. Congress provides no rules to govern that process. This is the first big transformation, because this is the first time the Court is given power to do lots of stuff without explaining itself. And that transformation begets the shadow docket because that creates this first step process where the Court is going to cull all of the appeals that come before it in ways that it's not going to explain.

[Listener]

This is such a transitional time for the court and, and for the country. It's also like a transitional time.

[Narrator]

Right.

[Listener]

This period, you know, from the 19th into the 20th century. Can you give us a sense of how the context of the time is also shaping the need for kind of this shift on the court?

[Legal Expert]

Yeah, I mean, there's a huge explosion in federal law during and after the Civil War. I mean, the Civil War really precipitates this massive and fundamental transformation in the powers of the federal government. The size of the federal government and the extent to which the federal government is involved in regulating features of Americans everyday lives. Before the Civil War, the odds that you would ever interact with the federal government as an American citizen were very low. After the Civil War, there's a Department of Agriculture, there's the Department of Education. There's a national railroad. There's a national currency. We have the first administrative agencies. And so it really is part of this nationalization and federalization of government, where alongside those processes come a much busier federal court system. And With a much busier federal court system comes one of two possibilities. Either you hire a lot more judges to keep up with all of these new cases, or you give the existing body of federal judges more power to decide how they're going to decide cases, and Congress splits the difference. Congress creates a lot more judges in the lower federal courts, so there are a lot more trial and intermediate appeals judges created in the 1890s and 1900s. But Congress leaves the Supreme Court alone. The size of the Supreme Court doesn't change from 1869 onwards, and instead, Congress decides to change the Court's role. We look around today, we see a Supreme Court that is able to inject itself into virtually every contentious public policy dispute. If the Court did not have this kind of control over its docket, it wouldn't be able to do that.

[Ramtin Arablouei]

Yes.

[Legal Expert]

Right. And it wouldn't be nearly as powerful. The modern court's power comes from the discretion that Congress gave and that the Court took to basically set its agenda.

[Ramtin Arablouei]

There's a kind of negative connotation around its power, around this expansion of its ability to both hear cases and how to hear cases, et cetera.

[Legal Expert]

But.

[Ramtin Arablouei]

But was this expansion of power actually kind of good for some of the more powerful rulings that came from the Court?

[Legal Expert]

Sure. I mean, I guess I am somewhat agnostic. Right. About whether certiorari is a good thing. What to me is such a critical part of the story is I want folks to understand that certiorari is a really important thing and that we shouldn't talk about the Supreme Court without talking about certiorari. Right. So I'm not averse to the Court having some control over its docket. I think the problem that has arisen is that we've gone from no control to complete control. And it seems to me that there's a happy medium somewhere in between that allows for Congress to assert at least a little bit more control, to exert a little more leverage over the Court. That I think, would be healthier from a separation of powers perspective.

[Ramtin Arablouei]

Was there ever a happy medium, period?

[Legal Expert]

I think so. I mean, like, you know, the. So between 1925 and 1988, you had this weird mixed docket where, you know, a lot of the Court's jurisdiction was discretionary, but a decent chunk of it was still mandatory. Like, there were still a number of cases the Court had to hear.

[Listener]

Could you argue that in that period of time where you were kind of just describing that 1925-1980s period where there was a sort of more healthy balance that was a period of time where arguably the court was a progressive court and was pushing the country forward on things like civil rights issues, on things like abortion rights. Progressives would have said, this is great. The court is ahead of the country and it's taking us in the direction we want to go.

[Legal Expert]

Yeah, I think the answer is clearly yes. But I think the point that I try to make in the book and the point that I think gets lost in way too much of our contemporary public discourse is that if the supreme court in the 40s and 50s and 60s had been handing down decisions that were wildly out of sync with public opinion as opposed to just sort of a step ahead of it. Right. Congress would have pushed back. That is the story of the Supreme Court. And part of what's, I think troubling to me about the moment we're in is you might love the current court, you might hate the current court. What to me I think can't be denied is this is a court that is not remotely worried about Congress.

[Ramtin Arablouei]

Coming up, how decisions about death gave the court extraordinary new powers, powers that would set it on a path to remake American life.

[Legal Expert]

Hi, this is Kevin Saters from Indianapolis, Indiana. I just want to applaud you for the work that you do. As always, you're listening to Throughline by npr.

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[Ramtin Arablouei]

In 1961, James Meredith applied to the University of Mississippi, determined to be the first black man to ever attend the school. He knew that in over 100 years, the school had never let anyone that looked like him in. When his application was predictably denied, Meredith filed a lawsuit claiming he'd been denied entry due to his race. His case ping ponged through the courts, with some judges ruling for the school and others for Meredith. Eventually, lawyers asked the Supreme Court to get involved. They said it was an emergency.

[Legal Expert]

So before 1980, the way the Court handled emergencies was actually pretty cute. The Court left it to individual justices to deal with just about every emergency. So the justices are geographically divided. They all have responsibility for one ninth of the country. The idea is that that justice would act as a proxy for the full Court.

[Ramtin Arablouei]

In this case, that justice was Hugo Black. After reviewing the case, he decided that the school had to let Meredith in.

[Legal Expert]

Immediate enforcement of the judgment can do no appreciable harm to the university or the other respondents.

[Ramtin Arablouei]

Tonight, the news spread that Meredith was allowed to enroll at the school. Riots broke out. A mob of angry white people armed with bricks and Molotov cocktails is attacked the US Marshals who were on campus to protect Meredith.

[Legal Expert]

President Kennedy appealed to the students and to the people of the state to comply peacefully with the law. Americans are free and sure to disagree with the law, but not to disobey it.

[Ramtin Arablouei]

Two people died. Hundreds were injured. But despite the resistance, Meredith did go on to graduate from Ole Miss, partially thanks to that ruling from Justice Hugo Black. Law professor Steve Ladic is the author of the book the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He says the Court's old system of having a single justice make emergency rulings had a few advantages.

[Legal Expert]

Advantage number one is we've all been, in this context, easier to schedule a meeting with one person than with nine, right?

[Ramtin Arablouei]

Yeah, right.

[Legal Expert]

And so, you know, if it was an emergency, usually you could get. You could at least get the justice on the phone. The Justices would often in this capacity, hold in chambers oral arguments like by themselves, like, hey, come to my office and let's chat. They'd write opinions by themselves. And this had two upsides. One is it was a fair amount of process. Actually, it was deliberative in a way that was not the full Court, but that was at least better than nothing. But two, no one ever confused a single Justice's decision for a ruling of the full Court. Everyone understood these were temporary expedients by one member of the court.

[Narrator]

Interesting.

[Legal Expert]

And that's how things persist, right? All the way through the 1970s. What brings it crashing down is the reinstitution of the death penalty. In 1976, the court imposes what's effectively a nationwide moratorium on capital punishment. In 1972, in a case called Furman v. Georgia, four years later, it changes its mind and says, you know what? Actually, we're going to let you do it. But the post1976 death penalty has a lot of rules, a lot more rules than the pre1972 death penalty. And those rules have to be litigated, and those rules tend to be litigated only once an execution date is set. So that that's a posture where you're going to have emergency applications, where a prisoner is going to ask an appeals court, the Supreme Court, to stay their execution while the courts figure out whether they have a viable objection to their conviction or sentence. So in the 1960s, the court would maybe get three or four emergency applications a year in death penalty cases. In 1983, it gets 83. And with that uptick, the court changes its behavior. So starting in 1980, without telling anybody, the court stops having individual justices resolve most applications. It starts this procedure where if it's remotely divisive, if a justice thinks there's a chance that any two of their colleagues might disagree, they're supposed to refer the application to the full court. So we have a full court decision instead of a single justice decision. And yet, even though the court goes to this full court process, they borrow from the certiorari model where if it's an order of the full court, they're not going to explain themselves. And so the court actually stops providing explanations for grants or denials of emergency relief in context in which previously a single justice usually would have. This is a profound shift that nobody notices because it's all in the death penalty space. It's that moment, right, Is when the court shifts to this model of full court decisions on emergency applications that are not explained, that are not signed, that are not argued, and that are not fully briefed.

[Listener]

Wow. I mean, like, when you, when you step back and think about that, like, was it the more humane approach to basically say, well, the chance that someone who is innocent will get executed if we don't move quickly increases? Was it as well intentioned as that?

[Legal Expert]

So I have a slightly more cynical take. You could argue that these procedural shifts, although they could be justified on sort of efficiency and like collegiality metrics really were a way of limiting the ability to, of those justices who are most anti death penalty to speak for the full court. And you see starting in the 80s, like a flurry of five, four decisions where the court is turning away death penalty appeals.

[Listener]

That's extremely dark. I just want to sit with that for a second because that's extremely dark. It was essentially a more actually efficient way to enact death.

[Legal Expert]

It's not just that we start to see the court denying requests for stays from inmates on a much more frequent basis. The even darker part is starting in 82 or 83, we see far more cases where a state goes to the Supreme Court and says, hey, Supreme Court, a lower court, sided with the prisoner and blocked the execution. We want you to unblock it.

[Ramtin Arablouei]

Oh my God.

[Legal Expert]

And so like one of the, one of the real shifts in the emergency doc in the early 80s is the rise of Supreme Court orders that on stay executions, which I have to say, like I have more trouble with than denials of stays, right? Where, where, where, where, where you're changing the status quo to clear the way for an execution.

[Ramtin Arablouei]

Right, but essentially you're saying that that lower court who's like, oh, there's some problems with this, we need to stop it. No, forget their decision. Like, let's just go ahead and do it.

[Legal Expert]

Well, it's worse than that, right? I mean, like, like, I mean, I've got no problem with the Supreme Court saying, hey, lower court, we disagree with you. The crazy part here is the court is granting emergency relief. The court is saying states are irreparably harmed if they have to wait to execute someone. And again, very little of this gets explicated because the court is not writing opinions. Even though all of the cases where this was happening were death penalty cases. The procedural shifts, the norm shifts, the, the changes in the court's behavior were not limited in any formal sense to the death penalty. It was just that that's where the fighting was in that time period.

[Ramtin Arablouei]

So when does it expand beyond the death penalty?

[Legal Expert]

That's the mid 2010s, right? So what happened starting in the mid 2010s is that the court, on a far more regular basis, starts to engage in behavior. It had already been engaging it right. In death penalty cases for 35 years in non death penalty cases. And whatever the stakes of an individual death penalty case, which are obviously enormous for the prisoner, for the victims, for the state, those cases tend not to make law. Whether Missouri can execute prisoner Johnson tends not to matter. To whether Texas can execute prisoner Smith. And so the sort of the legal effects of death penalty cases tend to be pretty modest. Versus the U.S. supreme Court put the brakes on a major part of President.

[Steve Vladek]

Obama's climate change agenda.

[Legal Expert]

February 2016 when a 54 court blocks President Obama's Clean Power Plan regulation requiring every state to reduce carbon dioxide in an unsigned unexplained order. Right. Versus you know, June 2017 the major.

[Steve Vladek]

Victory for President Trump, the Supreme court.

[Legal Expert]

When a 54 court puts back into effect part parts of President Trump's second.

[Advertiser]

Travel ban, saying that yes, you can in fact ban some foreign nationals with.

[Legal Expert]

Very limited explanation and no argument.

[Steve Vladek]

The president at a meeting with Republican members of Congress cheering his victory.

[Legal Expert]

That is the last shift that is really responsible for the current behavior where now the procedural pathologies that informed the death penalty in the 80s and 90s are being used in contexts that have statewide and nationwide consequences.

[Narrator]

Coming up, the Supreme Court's shadow docket becomes a policy battleground.

[Legal Expert]

Hi, this is Justin Whitlow from Lester.

[Ad Voice]

North Carolina, and you are listening to Throughline.

[Legal Expert]

I want to say that the show is an absolutely wonderful show. I appreciate your deep dive into really interesting stories.

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Thank you so much.

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[Ramtin Arablouei]

It's a Friday, April 2023. Judge Matthew Kazmarek in the city of Amarillo, Texas, is getting ready to release a major ruling. The case he's presiding over is a big one, a case brought by groups that oppose abortion rights, hoping to take the abortion pill used in more than half the nation's abortions off the market appeal called mifepristone. Judge Kaczmarek has a long track record of opposing abortion access, and that's exactly what he does.

[Legal Expert]

Federal judge in Texas invalidating FDA approval of mifepristone, a widely used drug and.

[Ramtin Arablouei]

Medication abortions in Washington, D.C. halfway across the country, the Biden administration isn't ready to see mifepristone go down without a fight.

[Steve Vladek]

Vice President Harris told reporters Friday night that courts should not be allowed to tell the FDA what it can do.

[Legal Expert]

The federal government and a company called Danko Laboratories, one of the sponsors of mifepristone, went first to the intermediate appeals court and then when that failed, went to the Supreme Court and said, hey, we're going to appeal this decision, which we think is terribly wrong, but we don't think mifepristone should be blocked while we're appealing. And so we want something called emergency relief.

[Ramtin Arablouei]

This is Steve Vladek, law professor and author of the book the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

[Narrator]

He says emergency relief can mean asking the Supreme Court to put a lower court's ruling on hold or directly block government action.

[Ramtin Arablouei]

It's a strategy that to gain traction in the 1970s to appeal death penalty decisions.

[Narrator]

And in the abortion pill case, it worked.

[Legal Expert]

On Friday, the Supreme Court upheld the Justice Department's appeal to freeze a Texas ruling that would roll back FDA approval.

[Narrator]

Of mifepristone because of the Supreme Court ruling. While the federal government's appeal moved through the court system, the pill stayed on the market.

[Ad Voice]

My body, my choice.

[Ramtin Arablouei]

It was a move applauded by supporters of abortion rights. But to Steve Vladic, watching this all play out was a scary indication of how the court conducts much of its business behind closed doors.

[Legal Expert]

When the Supreme Court issued its stay, basically keeping mifepristone available on a nationwide basis, there was no opinion. So we don't know who why the court froze the lower court ruling. There was no vote count. We don't know how the justices voted. We had no warning that the decision was coming down. It just dropped on a Friday afternoon.

[Narrator]

This is what the shadow docket is today. It's a mix of the justices deciding what cases they'd like to hear. Remember that tongue twisterari and emergency relief applications. That's when the court is asked to intervene in a case that can't wait for the merit stocket. It needs an answer now. These cases don't typically involve oral arguments and the decisions that are handed down are often unsigned and unexplained. The Supreme Court ultimately did hear full arguments on the abortion pill issue, and mifepristone stayed on the market. But most shadow docket cases like this never get that full hearing.

[Legal Expert]

This is the problem. If all you have to do is give a thumbs up or a thumbs down, there's no requirement that you sit back and think about the consequences. There's no requirement that you put into context what this ruling is going to mean for the next case. And so this is like not having to write obviates the justices or exculpates them from the responsibility to actually be deliberate. And so that's where I think one can say this is institutionally irresponsible, even if it's not necessarily malicious.

[Ramtin Arablouei]

What would be the arguments for the advantages of using the shadow docket the way it's used?

[Legal Expert]

Well, I mean, again, I think we should separate out certiorari from emergencies on.

[Steve Vladek]

The certiorari front, I mean, the advantages.

[Legal Expert]

Are, you know, efficiency. Right. The Court only takes the cases that the justices want to take. They do no work that they don't want to do. Like, who wouldn't want that job? Who wouldn't feel better in a job where they have no responsibilities other than the ones they give themselves? The Court would say it allows them to spend more time thinking about the big questions because they're not troubled with the little questions. You might even say it gives more respect to lower courts because a higher percentage of rulings from the lower courts are going to be the last word. So certiorari has defenses on the emergency relief front. I mean, frankly, I think all of the defenses are defenses of an idealized version of what the Court is doing that most of us could get behind. The notion that the Court should have this power.

[Steve Vladek]

Sure it should.

[Legal Expert]

Right. The notion that there are going to be cases where the Court won't have time to explain itself.

[Ramtin Arablouei]

True.

[Legal Expert]

But when the Court is upsetting the status quo and when it has time to tell us why, I don't know what the argument is for, why it's better for the Court to not tell us.

[Narrator]

We first talked to Steve about the Shadow docket in 2023, but this spring, we called him up again to understand what's changed. Given the sheer number of emergency applications the Court has received during the first few months of Trump's second administration.

[Steve Vladek]

It's numerically insane.

[Legal Expert]

But it also raises all kinds of.

[Steve Vladek]

Issues because, like, the Supreme Court is not set up.

[Rund Abdelfattah]

Yeah.

[Steve Vladek]

To handle like One super duper, high profile Trump related emergency application every week.

[Legal Expert]

While it's supposed to also be doing.

[Steve Vladek]

The rest of its job.

[Rund Abdelfattah]

I have to imagine that that kind of like constant now flood of emergency application cases, which they're emergency cases.

[Legal Expert]

Right.

[Rund Abdelfattah]

So they have to rise to the top right of the Supreme Court's docket. What has that done to the way that the Supreme Court works?

[Steve Vladek]

I mean, we don't know yet, but we're at least starting to see some evidence that it's affecting the rest of the court's work. So, you know, as we're sitting here at the end of May, the court is way behind in picking cases to hear next year. You know, we suspect that some of the big decisions in cases that have been argued this term are going to take longer because the justices are again, are being sort of distracted by these late breaking emergencies, hitting over and over.

[Rund Abdelfattah]

Again, whether it's intentional as a strategy or not, invoking these emergency applications. And then it's sort of like putting this added pressure on the court. It's making me think that it's almost weakening the power of the court in a way.

[Steve Vladek]

I think there's no question that that's true. You know, the Supreme Court only has so much capital to spend when it comes to pushing back against, you know, either of the political branches, but especially the president. And, you know, that capital, you can't quantify it. But I think it's absolutely right that it's finite and that when the Trump administration is going to the Supreme Court again and again and again, just the volume of it puts enormous pressure on the court to perhaps side with the Trump administration in context in which it wouldn't want to. In context in which 10 years ago it would never have even considered granting emergency relief.

[Rund Abdelfattah]

You know, speaking of Trump, walk us through from the first Trump term to now in terms of these emergency application cases, what were some of the most significant cases on the shadow docket during that first Trump term? And then, you know, moving into the second term, what are some of the new cases that are coming up and what are the implications they're raising?

[Steve Vladek]

During the first Trump administration, there were a whole bunch of immigration policies that lower courts blocked and that the government tried to use emergency applications to put back into effect the, you know, different efforts by the administration to restrict, if not eliminate asylum along the southern border, the border wall. And these were all policies that lower courts blocked.

[Narrator]

In many of these cases, the Supreme Court used the shadow docket to override the lower court ruling and put these Trump administration policies back into effect.

[Steve Vladek]

And so during the first administration, this became a way for the government to carry out policies that might never be upheld as lawful.

[Legal Expert]

I think a lot of folks didn't feel the direct impact of these policies if they're not part of immigrant communities. The impact of these policies were felt almost exclusively in immigrant communities. And then with the border wall in, like the sort of the geographic areas right along the border. Right. You know, the transgender military service ban. Right. That's a very specific community feeling that impact.

[Narrator]

But more and more communities are being affected by these shadow docket rulings. And these rulings weren't just happening under President Trump during the Biden administration, when one ruling in particular impacted an entire State.

[Legal Expert]

In September 2021, through an unsigned and mostly unexplained order, the court allowed Texas's six week abortion ban to go into effect. So that women in Texas woke up on the morning of September 2nd without access to abortion. That brought it home. Right. In a way that for various reasons, it had been limited to discrete communities to that point.

[Narrator]

And now in the second Trump administration, the shadow docket is continuing to creep its way into more and more people's lives.

[Steve Vladek]

What's different to me about the second Trump administration is that the stakes are much higher. So, you know, among other things, we've had emergency applications about whether, you know, immigrants are entitled to any due process before they're removed from the United States under the Alien Enemies Act. We've had emergency applications about whether DOGE is entitled to access to all of our Social Security data. We've had emergency, emergency applications about whether the mass firings of probationary federal employees is lawful. And so it's just like it's just a. It is a broader set of issues pitched at a higher level of both legal and practical implications.

[Rund Abdelfattah]

I'm curious right now, what are some of the cases that perhaps are more wonky but could have very far reaching consequences on our lives?

[Steve Vladek]

I think the Supreme Court's intervention in the middle of May in the case of Gwen Wilcox, the former member of the National Labor Relations Board, who was fired by President Trump despite a statute that said she could only be fired for good cause, that may seem wonky to folks. That has enormous consequences for the independence, or lack thereof, of lots of different federal government entities that we actually quietly depend upon to be independent, when the president can just appoint his friends and buddies to run things that I think will raise questions, no matter who the President is, about how objective those agencies are acting, about how reliable their information is. And so, you know, there's. There are all kinds of ways in which some of these wonkier emergency applications are clearing the way for pretty significant restructurings of the federal government in ways that may not be visible to us, but in ways that we will feel even if we can't see.

[Narrator]

At the center of the Wilcox case is an idea called unitary executive theory.

[Steve Vladek]

The reason why the Wilcox case is such a big deal is because when the Supreme Court intervened in the middle of May and cleared the way for Trump to fire Gwen Wilcox and Kathy Harris.

[Legal Expert]

Right.

[Steve Vladek]

It was signaling that it is inclined to actually clear the way for really, the full, complete version of the unitary executive in ways that are going to make it very, very hard to push back against a lot of what Trump is doing.

[Narrator]

Unitary executive theory is a way of looking at the Constitution that basically says the Constitution gives the powers of the executive branch, like being command commander in chief of the armed forces or removing agency officials to one person, the president. If there are laws that get in the president's way, the unitary executive theory would say, well, those laws are unconstitutional.

[Steve Vladek]

We have never in American history lived under the unitary executive theory. The Supreme Court has been moving in that direction for the last 15 or 20 years, but it has never fully embraced it, partly because our history has been defined much more by, you know, inner branch dialogue, by the notion that, like, we should divide power, not. Not sort of accumulate it in each of the branches.

[Narrator]

Right.

[Steve Vladek]

One of the things that's really striking, for better or for worse, about the second Trump administration is we're seeing what happens when the unitary executive theory runs amok? Because, you know, here we have a president who has very, very strong controversial views, and he wants every single person dispensing even an ounce of executive power to share his views.

[Rund Abdelfattah]

This raises, I think, a question that has come up a lot since the second Trump term began, which is, who is the check on the executive power right now? And the answer, it seems, is the courts. Right. Obviously, the Supreme Court being the most powerful of all the courts. And when we last spoke, it seemed like the conversation in the country was sort of centered around the Supreme Court having too much power, that maybe the Supreme Court's power had gotten too bloated and needed to be reined in. And now, you know, as that unitary executive theory sort of illustrates, we're talking more and more about the executive taking too much power.

[Steve Vladek]

We've been building toward that for a while, you know, as Congress has increasingly become not just dysfunctional, but just inactive presidents of both Parties have been left ever more to rely upon executive power and increasingly dubious claims of statutory authority to implement any of their policy objectives. That's not new. I think what's different is that what folks like I had been criticizing when we criticized the Supreme Court as recently as, you know, six months ago, was that the court had basically become aloof from the separation of powers conversation, that the separation of powers depends upon all three branches pushing up against each other. As James Madison wrote in the Federals, that ambition must be made to counteract ambition and that the Court had become too ambitious. Right. Well, the only upside of an ambitious court is that an ambitious court might be more inclined to push back against the ambitious executive. The problem there, right, is that we have a court that is at once very into its own power, but also very into executive power. Right. We have a majority of justices at the moment who are more supportive of a broader theory of executive power than we've ever had on the Supreme Court before. And so both things are true. We have a court that is very into preserving its own power, but also, you know, very, very willing to give the executive a whole lot of power. And then the question is, well then who's losing out?

[Rund Abdelfattah]

Yeah.

[Steve Vladek]

And the answer is Congress. Right. The answer is that like, it's not just that this is sort of ignoring Congress, is that it is affirmatively disabling Congress, even if we had a responsible Congress from pushing back. So like Wilcox is a good example. Congress actually passed a statute that says you can't fire someone like Gwen Wilcox without good cause. And that statute is just, no, nevermind to the Supreme Court at this particular moment in American history. And that's really problematic because now you have the Supreme Court leading into this space where we're just going to see more executive judicial confrontations going forward with less and less and less of a role for Congress.

[Legal Expert]

I mean, I think in the long.

[Steve Vladek]

Term that's not sustainable. And it's part of why all of these emergency applications in the Supreme Court are so important, because those emergency applications are where the rubber's really hitting the road with regard to just what the Trump administration can and can't get away with.

[Rund Abdelfattah]

I think one of the things that again, it sits in this, like, sort of murky, the unspoken territory where it's like that would require lawyers and courts actively being willing to continue to push back against the administration. An administration that said and shown that it is willing to take action against people who oppose it.

[Steve Vladek]

Well, and an administration that has been critical to a degree we've never seen before of specific federal court judges. Right. An administration that has questioned whether federal courts even have this power, even though they've exercised it consistently for two centuries. Right. And so, you know, I think it's sort of it is a longer term conversation where the administration wins just by not losing, where it can slowly erode public confidence in the courts. Right. Where it can sort of try to sort of build up momentum for the notion that, like, courts are not to be trusted. Right. It's part of this broader effort to just delegitimize those institutions that are sources of credibility in our in our discourse, in our culture.

[Rund Abdelfattah]

What is something that you would say people listening should be focusing on and what is something that perhaps is being misunderstood in this conversation right now?

[Steve Vladek]

It's very common in the flow of the typical Supreme Court term for that last week of June. Right. About when folks will be listening to this to be like the crescendo, the, you know, the, the apotheosis of everything the Supreme Court has done that term, because it's when historically all the biggest decisions come out. And I think the most important thing for folks to understand is that that's not this term. The Supreme Court used to be a sort of pay attention to it a couple weeks out of a year kind of operation, you know, for better or for worse. I think it really is now a pay attention to it all the time kind of operation. And, you know, we ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril.

[Ramtin Arablouei]

We reached out to the Supreme Court for comment on this episode. They didn't respond.

[Narrator]

And that's it for this week's show.

[Rund Abdelfattah]

I'm Rund Abdelfatah.

[Ramtin Arablouei]

I'm Ramtin Arablouei and you've been listening to Throughline from npr.

[Narrator]

This episode was produced by me and.

[Ramtin Arablouei]

Me and Lawrence Wu, Julie Kane, Anya.

[Advertiser]

Steinberg, Casey Miner, Christina Kim, Devin Kadayama.

[Ramtin Arablouei]

Peter Balanon, Rosen, Akshara Ravishankar, Amber C, Irene Nag, Gucci.

[Narrator]

Fact checking for this episode was done by Kevin Voelkel. It was mixed by Jimmy Keeley. Music was composed by Ramtin and his band Drop Electric, which includes Anya Mizani.

[Legal Expert]

Naveed Marvi, Sho Fujiwara.

[Narrator]

Thanks also to Johannes Durgi and Jessica Payne.

[Ramtin Arablouei]

And as always, if you have an idea or like something you heard on the show, please write [e-mail] thanks for listening.

[Ad Voice]

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