Tuesday, May 16, 2023

Q&A with Stephen Vladeck




Stephen Vladeck is the author of the new book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, and he lives in Austin, Texas.


Q: You write, “This book began as nothing more than a series of tweets.” What inspired you to write those tweets, and how did you end up writing the book?


A: Ever since I was in law school, I’ve been fascinated by the more arcane features of the Supreme Court’s authority—the weirder side of how the justices resolve cases.


When we first saw a real uptick in how often the Court was using arcane authorities to intervene to allow the Trump administration to carry out policies lower courts had blocked, I started by just cataloging all of the cases in which this was happening—so that we’d be able to look at the whole dataset, and not just each case one at a time.


And the more time went on and the larger that dataset became, the more it seemed to me that there was a real—and troubling—pattern in the Court’s behavior, and the more it seemed worth it to try to figure out (1) if the Court’s approach during the Trump administration was different in meaningful ways from its predecessors; (2) if those differences were problematic; and (3) if there was a way to explain (1) and (2) to folks who care about the Court, but may not spend as much time thinking about and watching it as people like me do.


When the pattern of problematic behavior I was documenting continued even after President Trump left office (proving that it wasn’t an evanescent, Trump-specific phenomenon), that’s when I was pretty sure there was a book to write—to explain how the shadow docket made the Court so powerful in the first place, and why the recent Court’s use (and abuse) of it is so problematic compared to its predecessors.


Q: How would you define the shadow docket, and what do you see as its role today?

A: In this context, the term was coined by University of Chicago law professor Will Baude in 2015 as an umbrella term—an evocative shorthand for every decision the Supreme Court hands down other than the 60+ lengthy opinions we get each spring after multiple rounds of briefing and oral argument. That part of the Court’s work (the “merits docket”) receives the lion’s share of press and public attention.


Will’s insight, which I’ve rather shamelessly appropriated, was that a lot of really important stuff happens through this other part of the Court’s work—including when the Court decides which cases to hear (and not hear); when it decides whether to grant emergency relief while a case works its way through the legal system; and so on.


There’s been a lot of pushback against the term, with many (including Justice Samuel Alito) complaining that it’s used as a pejorative to imply nefariousness. Respectfully, I disagree—shadows aren’t necessarily nefarious, just like the shadow docket isn’t necessarily a problem. It’s what happens in the shadows that matters—and that’s what the book sets out to document and then critique.


So I think there’s no question that the Supreme Court can and should have a robust shadow docket; but (1) it would help if public discussions of the Court included that part of its work; and (2) the Justices’ behavior on the shadow docket ought to be more consistent, transparent, and rationalized.


Q: In the book’s introduction, you focus on the actions of Justice William O. Douglas in 1973. Why did you choose to write about his activities during that period?


A: The August 1973 Cambodia bombing dispute is such a perfect microcosm of what the book is trying to accomplish. First, it’s quite a story—a way of driving home, in the opening pages, how technical legal disputes over emergency relief can have massive impacts in the real world. Second, it makes the point right off the bat that the shadow docket itself isn’t new; there are scattershot examples of cases like the Cambodia contretemps going back through much of the Court’s history.


Third, without spoiling things too much, the dispute ends in a way that leads Douglas to criticize exactly what has come to be the norm for how the Court handles emergency applications today—behind closed doors, without normal opportunities for the parties to be heard or the Justices to deliberate, and in a rushed process that may fail adequately to account for the relevant interests. Relatedly, not long after that dispute, the Court subtly and quietly changes a bunch of its practices and procedures to formalize what had happened in the Cambodia case—ironically normalizing exactly what Douglas had objected to.


And finally, I love the contrast between the two liberal legends—Douglas, who wants to stop the bombing come hell or high water; and Marshall, who’s torn between what he’d do if it were solely up to him and how he viewed his responsibility on behalf of the rest of the Court. It’s an object lesson in two very different approaches to the job of being a Supreme Court Justice—one that’s about responsibility to the institution; and one that’s about responsibility to what that Justice believes the law demands. There was, frankly, no other place to start the book!


Q: The writer Patrick Radden Keefe said of the book, “This is a powerful work of argument and explication, and a call for a return to transparency and accountability in the decision-making of our highest court.” What do you think of that description, and what do you see looking ahead for the Court?


A: I’m really flattered by Patrick’s description, which gets it almost exactly right. I do think that what’s happened on the shadow docket since 2017 is, in lots of ways, a symptom of a broader institutional disease in which the Court has become virtually unaccountable to anyone else—the political branches, the people, etc.


But I also think that we’ve already seen how meaningful public criticism and pushback can exert pressure on the Justices to moderate their behavior; Justices Amy Coney Barrett and Brett Kavanaugh, for instance, appear to have significantly changed their behavior in many of these cases at the same time as, if not in direct response to, much of the public scrutiny.


Put another way, there’s the old saw that sunlight is the best disinfectant. I wrote the book because I think that’s likely true of the more obscure ways in which the Supreme Court exercises power—and I think recent developments may already show signs of that thesis being borne out.


Q: What are you working on now?


A: I’m in the very early stages of what I hope will be my second(!) book—on the Election of 1864. There’s no segue from the shadow docket, but I’ve long been fascinated by that particular moment in our political, cultural, legal, and military history. To this day, it’s the only known example of a democracy holding a national election in the middle of a civil war.


It’s one of the most compelling examples in American history of voters putting country ahead of party (given how many of the so-called “War Democrats” voted for President Lincoln instead of the Democratic nominee, George McClellan). As late as August, Lincoln was completely convinced that he was going to lose—and started taking steps to figure out how to preserve the union (and free as many slaves as possible) between his impending defeat and the inauguration of his successor.


Congress rushes through Nevada’s statehood to help ensure Lincoln gets three more electoral votes. Chief Justice Taney dies less than a month before the election. And the country for the first time endorses widespread absentee voting—so that soldiers can vote from the front.


There’s so much in that story about democratic resilience; about historical fortuity (including how Andrew Johnson ends up replacing Hannibal Hamlin on Lincoln’s ticket); about the relationship between the military and politics (Sherman’s victory in the Battle of Atlanta ends up as the election’s turning point); and about Lincoln himself. Once I can figure out how to tie all of those threads together, I’m hoping that there’s a book there—and that I’m good enough to write it.


Q: Anything else we should know?


A: One of the principal goals of the shadow docket book is to make the Supreme Court more accessible to all of us. Further to that end, I also started a free weekly newsletter about the Supreme Court last November. It’s called “One First,” and folks can subscribe via Substack (https://stevevladeck.substack.com). I hope those who are interested in the book will consider subscribing and vice-versa!


--Interview with Deborah Kalb

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