Understanding the SC ...

Understanding the SCOTUS Shadow Docket | Steve Vladeck

June 1, 2023 | by D. Todd Smith

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In recent years, the U.S. Supreme Court has taken fewer cases on its merits docket. But it has increased the volume of its “shadow docket,” where it has traditionally handled procedural matters like stays. As a result of this shift, the Court is making wide-ranging decisions without traditional merits briefing or oral argument. In this episode, University of Texas Law Professor Steve Vladeck joins Todd Smith and Jody Sanders to discuss the changes in the shadow docket and his book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Professor Vladeck sheds light on this lesser-known aspect of the Supreme Court’s workings and its implications for our democracy. He discusses the shadow docket’s historical use and its impact on precedent, and he highlights recent departures from traditional norms in the Court’s behavior, making a persuasive case for its problematic nature.

Our guest is Professor Steve Vladeck. He is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. Welcome to the show, Steve. 

Thanks for having me.

I feel justified in calling you by your first name because I’m so much older than you are. Those of us who are around on Twitter still, that’s a platform in which you are very active and has allowed us to get to know you a little bit aside from some other things that are likely to come up during the show, but we sure appreciate you being with us.

As what Judge Kacsmaryk calls, “A professor with a Twitter account.” I feel like I have to keep up the tradition.

I’m glad you are the one that brought that up and not me.

Here on the show, we also know you as Karen‘s husband.

That’s the far more important appellation. I realize that I can never hope to be your best Vladeck guest, so all I can do is try to be second fiddle.

I’m glad we are going to get that out of the way early because inevitably folks who follow us will hear your name and make the connection. If they know you from Twitter, they already know Karen from Twitter. She’s a hard act to follow. I don’t envy the position that you are in now, but you have different focuses.

I don’t expect that she’s going to attempt to cover some of the things that we will talk about here, but the reverse is also true. Although there are a lot of overlaps in what you all do that I’m sure we’ll  get into. After that long introduction that has involved very little talking on your part, why don’t we let you talk a little? We like to have our guests introduce themselves to our audience. If you wouldn’t mind giving some of your background, where you come from, and so forth.

Where I come from in the literal sense is New York. I was born in Manhattan. I grew up there. I finished my eighteenth year as a law professor, which is a scary number when I think about it. When I graduated from law school in 2004, I was pretty sure I wanted to teach. Part of why I was pretty sure I wanted to teach was because there were already examples around me of folks who were teaching, but also staying active in litigation and other hot-button topics.

I clerked for a year on the Ninth Circuit for Marsha Berzon, who I adore. I was somehow able to twist the University of Miami into making me an entry-level teaching job offer in the fall of 2005. The rest, as they say, is history. I did two years at Miami, nine years at the American University of Washington, DC., and this is my seventh at UT. I love teaching, I love getting to do some cases on the side, and I love Karen. Add those things together and that is pretty much most of me.

All the references to Karen can only help our ratings. We are going to talk about some fun stuff that doesn’t involve Karen, but we have enjoyed having her on as a guest. We might have to have her on again sometime because she was so much fun. The two years at Miami and then also at American, was it the one clerkship at the Ninth Circuit? I thought maybe you were one of those two clerkships.

I’m a weird two-clerkship type. I never tried to get a second clerkship, but I was already teaching in Miami when Judge Rosemary Barkett had two vacancies come up in her chambers at roughly the same time. It was a very lucky circumstance where someone with prior Federal appellate judicial clerkship experience who was in Miami and could spare six months finished out the term. I claim one and a half clerkships, but the second one was very non-traditional.

What is it that led you into the law in the first place? You suggested you had some examples. What do you mean?

I grew up in a family of lawyers. My father’s parents were both lawyers. My grandmother was in Columbia Law Class in 1947. My dad’s siblings are both lawyers. He was the black sheep in his family. It’s not that weird in retrospect that this is where I ended up. I went to college because I wanted to be a historian. When I was in college, I had a professor who was jointly appointed in the history and law jurisprudence and social thought departments at Amherst College. He opened my eyes to the interaction and the inner relationship between law and history, law and politics, and the relevance of how the law responds to historical trauma and tries to react to historical trauma, things like war crimes trials and truth commissions.

I went to law school thinking I wanted to be a prosecutor for the International Criminal Court, which was then in its nascent stages, and then 9/11 happened. September 11, 2001 was my second day of torts. In retrospect, it’s entirely obvious that my interest in law and historical trauma quickly had me focused on the United States post-9/11 policy landscape and legal landscape.

I was also fortunate to have a couple of professors in law school who from pretty early on were working on some of those post-9/11 cases; some of the early Guantanamo cases; and Jose Padilla, the so-called Dirty Bomber. I was able to get in on the ground floor of a lot of that litigation, which got me a lot of good experience and also some cool ideas for academic projects. It whetted my appetite for finding ways of doing more of that, and more of that cross-fertilization going forward.

I hadn’t thought about the whole concept of law and historical trauma as you put it. You have some great examples that happened right there when you were a fledgling law student. I can see that if you pull up your bio on the UT website, I can see that this national security interest and so forth is reflected there and some of the things that you have done. That’s pretty far away from what I do on a daily basis. I do find it fascinating.

One of the things that I’m very backward is that I came to the law in an atypical direction. Not from the ground up, but from the top down. The last thing I ever learned how to do was to file a complaint or any kind of trial practice. I argued in the Supreme Court before I argued a motion to dismiss, which is pretty atypical in the world of lawyers. I was very lucky at various points in my career to be in the right place at the right time. If I had gone to law school a year earlier or a year later, I think that the whole landscape looks a lot different.

My best friend and now the dean at UT, Bobby Chesney, tells a story about how he went on the academic teaching market in the fall of 2000 and had mixed luck, not a lot of offers, and one especially poignant exchange where a professor at an elite law school asked him how he was ever going to make a career out of this “Tom Clancy stuff.”

Not surprisingly, when Bobby went back on the market in the fall of 2001, all of a sudden national security law is a very hot topic and law schools are scrambling to figure out what to do. There’s an insight there about the utility of being on the leading edge of a wave, but it has helped me to do a lot of things in my career that would have taken much more time and labor if it weren’t so evanescent.

When you say national security law, what things do you put under that umbrella?

The class has changed a heck of a lot in the last several years. In the early-2000s, that class was typically like war powers and foreign relations class. If you look at old editions of case books in the field, half of it would be about Vietnam and the Civil War. Half of it would be about things that are not even natural security, but diplomatic relations, treaties, foreign investment, and all that stuff. Post 9/11, that has shifted radically so that national security is a much larger field now that includes the entire umbrella of counterterrorism, which bakes in a lot of surveillance.

Cyber is now in many contexts a national security topic. In the last couple of years, domestic terrorism has become a huge part of any national security discussion. This is what one of my co-authors Steve Dicus would say, environmental and climate change. We have seen an explosion in how topics that we didn’t used to think of as being about national security nevertheless have national security overtones and undertones. We spent three years going through the legal responses to the COVID pandemic.

I’m a co-author of the Aspen publisher’s case book for National Security Law. It’s a little bit of everything, which is a bit of a challenge especially as we are starting to work on the next edition. It has progressed away from the classic military-heavy version. You pick your TV show, but now it’s a combination of any number of other plot lines.

It seems like immigration has taken a big part of that in the last 4 or 5 years too.

Even before that. Post 9/11, there was a very clear linkage between some of the Bush administration’s counterterrorism policies and immigration reform. It’s weird to say that national security is everything because it’s not. We have gotten better at understanding how lots of different fields of law have at least at their margins national security implications. One strange example is tariffs. It can have massive national security implications depending upon what we are doing with them. It’s an evolving field, which makes it fun pedagogically to teach and terrifying as a casebook author to keep up with. There are days where I wish I was a legal historian or maybe I taught torts.

It seems like there’s a link between the world getting smaller through technology. You think about the Cold War days. In national security, you thought about Russia or maybe the Middle East. Those were all places that were way over there that most of us might not ever come into contact with. With the globalization of the economy now, everything seems like it’s much closer than it used to be. It seems like there might be a link there.

There’s no question. The trickier part, we haven’t even begun to answer these questions, is whether the kinds of conventional arguments for national security exceptionalism have to be recalibrated in a world in which nothing is especially exceptional. In a world in which this is the world. When the exception becomes the norm, it’s hard to justify having rules for the exception anymore. That’s a conversation that we have been very slow to have at least in part because we have spent a fair amount of the last six years having even more basic conversations about our legal system and our legal order. Those conversations are there and they are lurking.

It seems like living in Texas, in particular, the federalism dimension of that has become a huge conversation too.

Also, questions about how much residual authority states have to do their own immigration policy. How much can governors use state national guard troops, especially when they are not federalized in ways that may be inconsistent with Federal policy? We are just scratching the tip of the iceberg on what it’s going to look like legally now that it’s becoming de rigueur for states to basically be the principal or the most visible opponents of presidents. Whether it’s Texas now or California during the Trump administration, or who knows what state tomorrow.

That’s a fascinating area. You immediately launched into this area when you began your teaching career focusing on these sorts of issues?

My career has taken a bit of a strange path. National security and Federal courts are where I made my hay as a junior professor. It’s common for law professors to talk about writing at the intersection of the fields that they teach and research. For me, it was like the intersection and overlap of national security and Federal courts.

Something weird happened which is that as time went on, it’s not that I got less interested in national security but it’s that those conversations didn’t seem to be moving in any meaningful way. We kept having the same conversations and I started paying more and more attention to the Supreme Court. Separation of powers topics that were not specific to national security. Military justice topics that were not specific to national security. I slowly moved away from being in the middle of the national security conversation and toward a more general public law conversation, which is part of what led me to where I am now.

Tell us how you went from teaching at American after spending nine years there to uprooting and moving to Texas.

My parents are lifelong New Yorkers. They are the kinds of New Yorkers who think upstate starts at 96th Street. There’s a famous Saul Steinberg New Yorker cover called View of the World from 9th Avenue. The way the cover is set up is a quarter of the cover is 9th Avenue and 10th Avenue, and 10th Avenue and the Hudson Rivers, then the Hudson River to California is the next quarter, then the Pacific Ocean in Japan and Asia is the last quarter. When I told my parents, “We are moving to Texas,” they were a little surprised.

We love Austin. We moved here in the summer of 2016. I had always loved UT. I had an entry-level interview with UT when I was a baby aspiring law professor. I will never forget Larry Sager, who was for a while the dean and is still on the faculty. He said to me in a very polite friendly way, “Come back in 5 or 10 years,” so I did. Karen and I were in DC. We were thinking about starting a family. The specter of moving to Austin and being part of such a cosmopolitan thriving community and a flagship university was too tempting to pass up.

Tell us about your teaching load right now. I assume you are teaching Federal courts and those related courses. What’s it like working with law students in 2023?

It is exhilarating and maybe sometimes exasperating. My typical load is the big upper-level Federal courts class. It’s one big first-year course. I usually teach either Constitutional Law or Civil Procedure to first semester 1Ls, and then a seminar. I’m doing my bid for King and Country with those two big classes. The seminar can be whatever I want. Next fall, my seminar is about the Election of 1864, because why not?

What is the Election of 1864? You have to tell us.

We have to have the seminar. The Election of 1864 is Lincoln’s reelection in the middle of the Civil War. It is the first and to this day only example in world history of a democracy holding a national election in the middle of a civil war. It is a remarkable story about democratic resilience. It’s a remarkable story about country over party, thousands and thousands of so-called war Democrats cross over to vote for Lincoln because they were terrified of what would happen if they voted for the Democratic nominee, General McClellan.

Shadow Docket: The Election of 1864 is Lincoln’s reelection in the middle of the Civil War. It is the first and only example in world history of a democracy holding a national election in the middle of a civil war. It is a remarkable story about democratic resilience.

Lincoln is convinced as late as August 27th that he was going to lose, and is trying to make plans for what to do during the lame-duck period between the election and the inauguration to save the Union. The president-elect will have been elected on such grounds as it will be impossible to save the Union thereafter.

There are a lot of cool intersecting law, politics, history, and culture stories there. The Election of 1864 is the first great absentee voting election because that’s how they got the soldiers to vote. Nevada statehood is rushed through. The first state admitted to the Union in violation of the size restrictions of the Northwest Ordinance is Nevada because they wanted three more electoral votes for the Republicans.

Chief Justice Taney dies on October 12th, three weeks before the election. There are a lot of fascinating law, politics and culture swimming around that election. This is me being a nerd, but if you look at the elections that have literature unto themselves, there’s 1800, there’s 1876, the disputed election at the end of Reconstruction.

There are 1968, 2000, 2016, and a few others. 1864 is not part of that canon because, by the time the election happened, it was not close. Spoiler alert. Sherman captures Atlanta in the first week of September, and Farragut captures Mobile, and that totally breaks the momentum of the Democrats. It ends up not being an especially close election because the battlefield developments in September and October changed the entire tide of the election. Those weren’t foregone conclusions. This is getting too far into the future, but I think this might be my next book. This is the way the book that is coming out now started. I’m testing some ideas on some students and seeing what they think.

Do you accept non-student auditors in any of these classes?


I may have to make some road trips down to Austin.

I was thinking that maybe we could turn this into a CLE program. Can you boil it down to a 30-minute or 45-minute CLE presentation?

The time won’t be an issue. The issue is the L in CLE. To go back to your question, the law student now is a student who is equal parts more engaged and more on top of the world, and more cynical than the students 10 or 15 years ago. Not so long ago, I had a bit of a hard time getting through to students why some of the technical stuff we do in these classes matters. That’s not true anymore.

It’s now a different problem, which is trying to persuade students that law matters, especially progressive students these days, and that what they are learning in their Constitutional Law and their Federal courts’ classes. The doctrines and the broader principles have value independent of the judges and justices who are applying them. That’s a challenge we are facing as law professors that we haven’t faced for much of however long period of time you want, going back to as long as I have been in this job.

We are going to come to the book before too much longer, but I wanted to check with you in a little more detail about what I label as your side gigs. You are Professor Vladeck, but you do a lot of other stuff. Part of that is having your family with Karen, which we have touched on. Anybody who follows either or both of you on Twitter get a flavor of that. This is interesting because it touches on both your national security law emphasis and also your family because you are a podcaster. Anybody who follows you knows that. Are you still doing the National Security Law Podcast? I noticed that you were doing that with Dean Chesney.

We are still doing it. Bobby is the only person who’s busier than I am. The scheduling has become more complicated than it used to be. We have known each other since I was in law school. One of the things that we figured out very early on is that we disagree about a lot, but we like disagreeing with each other. We learn a lot from our disagreements.

Especially in this day and age, we are both committed to the bit of modeling how people from different backgrounds and with different priors can have sometimes strongly divergent views about legal and policy questions of a whole lot of significance and yet disagree without being disagreeable. Even as the prompts for us or the subject matter dries up sometimes, which it does, the value to us is not just what we are talking about. It’s how we are talking about it.

That’s an important point. Modeling for the new generation is great. Are you noticing that in the new generational law student? I have got one in college. Not too far away from being of law school age. Fortunately for him and me, I don’t think he’s going to pursue law. It seems like in that generation, there are issues with confrontation and face-to-face communication. Maybe they struggle with that a little bit more than folks of your vintage and mine. I’m curious about the modeling part of that. What do you hope that it leads to, and how the law students interact with it?

I hope that it suggests that we shouldn’t be shy about expressing disagreements with each other in public. We can say, “That’s a good argument, but have you considered these other things,” as opposed to, “I can’t believe you said that.” There’s a way of doing this that doesn’t require you to suppress your views. It doesn’t require you to censor yourself. It requires you to allow for the possibility that yours are not the only views represented in the room.

Some of that is about the style and the tenor of the discourse and not its substance. That’s what I try to model in my classrooms, and it’s what Bobby and I try to model in the podcast. It’s missing from too much of what’s happening. It certainly isn’t happening on Twitter, but that’s the challenge that we find ourselves in right at this particular moment.

You have another podcast that you do with the preeminent Vladeck, Karen. Do you want to tell us a little bit about that and how that got going?

This one is closer to dormancy, but it hasn’t quite died. Karen and I have a mutual friend who was so enamored of the banter and repartee that Karen and I have on Twitter and elsewhere, that she thought it would be fun if we bottled it up. We started this podcast called In Loco Parent(i)s. The idea was to talk about the adventures of parenting and lawyering in that order, not because we are experts in either but because there are a lot of lawyers out there who are also parents of young kids.

What we discovered pretty early on is that a lot of the problems we were having, the challenges we were experiencing, and the pitfalls were common to lots of folks. There’s strength in numbers. There’s value in figuring out which things you screwed up and which things are endemic to the entire experience of parenting young kids, especially parenting young kids with two working parents. We both gained a lot from that. The downside is that as we have both gotten busier professionally, there has been less time for it, which is part of why there have been fewer episodes.

It’s still available to listen to and alive. It’s a different approach to things, but it’s one of those things that helps to remind people that busy lawyers do have lives. They have children. They face the same problems that everybody else faces. It’s a nice element, especially when it has been discussed on Twitter. It has been a while. Do your students ever come up and ask you about it?

Yeah. Some because they are genuinely interested. Some because maybe they think they will get an edge from listening to it. Some of my students are parents. It took some getting used to that my students have access to a lot of my life and thinking, my day to day, that they are not experiencing directly through me. You get used to it. I’m a big believer that part of being an effective teacher is letting the students in. Let them see who you are. If they develop a better ability to see who I am from other media, c’est la vie.

I want to continue with this theme of your side gigs. You have mentioned advocacy work, being able to go and argue cases at the highest levels. How has that worked out for you? How do you fit that into your schedule?

It’s a bit random. I don’t go out looking for cases. Some of them find me in weird and quixotic ways. I have argued three cases now in the US Supreme Court. One of these days, maybe I will win one. Two cases in the Texas Supreme Court, where I’m 50/50. It’s energizing. You guys know this. Appellate arguments are a whole universe unto themselves.

It’s a great way of synergizing my academic work with things that matter in the real world. It’s a way of staying current and having a sense that you are involved in the relevant conversations in the fields you are teaching, and it’s fun. The first time I ever argued in the Supreme Court, one of the best pieces of advice I got was from one of my colleagues at UT who reminded me that my job is to stand up in front of a room of people and persuade them that I’m right about something. The practice for me is a cool way of staying abreast of what’s going on in the universe and staying connected to the things that I’m writing and teaching about.

Do you do much Amicus work on top of that?

It’s less these days. Earlier in my career, I did a lot more Amicus work, and it was a great way of building relationships. There’s nothing quite like showing up and offering an Amicus brief for free to a party that is very happy to have it. Amicus briefs are one of those things that, as you get further in your career and as the time demands pick up, are harder to justify. My practice has shifted. The Amicus to party litigation ratio used to be 100 to 0. It shifted mostly from 80 to 20 in the other direction.

I have to imagine being able to go in and do that advocacy work. You are teaching Federal courts. Keeping your finger on the pulse of what’s going on in the court system and how the courts are approaching things aside from just reading decisions and opinions, which you can clearly do, but going in and showing up and standing at the lectern has to be a pretty cool experience for you.

I’d love to do more of it, but it takes a lot of time. The sticky part is just remembering that you are an academic first. You call them side gigs and they are all side gigs. Remember what your real job is.

I’m glad you find that my description is accurate because I assumed that was accurate that side gigs would be true. It’s impressive what you managed to maintain because it’s very difficult. It’s certainly difficult as a lawyer to maintain side gigs because you have full-time responsibilities. Let’s go ahead and move into what I will say is maybe the last side gig we will talk about. In addition to podcasting about national security law and raising kids and your advocacy work, now you are a book author. You have published other things elsewhere, but you have gone out and taken the time to write a book that by the time this episode is published will be available for purchase. Tell us about the book because it directly relates to the subject of our show. We are excited to have you talk about it.

I don’t want to go too far into the weeds, especially since this audience will get the basic gist. The book is basically about what Will Baude dubbed the Supreme Court Shadow Docket. That term means different things in different courts. It was used even before Will coined it for the US Supreme Court to refer to some of what the Texas Supreme Court does. There’s a version of it in the California state courts that I had never heard of until recently. It’s all going to hit the same thing, which is that the US Supreme Court does a heck of a lot of stuff every year that’s important other than the 60-ish merits decisions the court hands down come April, May, and June.

Will’s insight, which the book tries to pick up on, is that it’s not that a lot of important stuff happens through the rest of the court’s docket through unsigned, unexplained orders, whether granting or denying certiorari or granting or denying applications for emergency relief. It’s also that there are respects in which you will get a better picture of the institution as a whole if you account for all of what it’s doing.

I think there are relationships between the justices that are more visible on the shadow docket. There are voting patterns that are more visible on the shadow docket. There’s a broader shift in the relationship between the court and Congress, for example. That is more visible on the shadow docket. What I set out to do is I set out to write a book that did two things.

The first was to introduce readers to this side of the court’s world, to educate and to say, “When you think about the Supreme Court, you should also be thinking about certiorari. You should also be thinking about emergency applications. You should also be thinking about these other things that may look procedural but can often have massive substantive effects.”

The second, and this is where the book gets into a little bit more divided territory, is to use the historical baseline the book builds and the framework the book creates to try to point out the ways in which the court over the last six years has broken from traditions and has acted in ways that are inconsistent with prior courts, and in ways that the book tries to argue is deeply problematic. I don’t expect I’m going to persuade everyone about the problematic nature of the court’s behavior, but I will be very happy if the book persuades readers that this is something we ought to talk about and that the behavior is different. Those two things by themselves would make me a very happy camper.

How much had the concept of the shadow docket been talked about in legal academia before you started talking about it?

Will Baude wrote an article in 2015 in the NYU Journal of Law and Liberty, where he coined the term and basically used it. He used it to talk, at least in that article, specifically about summary reversals, which is where the Supreme Court at the certiorari stage decides a case. It’s usually in an unsigned opinion or usually without a second round of merits briefing or hearing from a lot of friends of the court.

In the first 3 or 4 years after Will’s article, there’s no additional scholarship that picks up the idea of the shadow docket as such. There are people looking at individual slices of it. The idea of studying it as a thing, I probably am the second person who jumped into that space. Part of that was I was invited by the Harvard Law Review to write for the annual Supreme Court issue at the end of the October 2018 term. The one that came out in the fall of 2019. They wanted me to write about the Solicitor General, and I wanted to write about the shadow docket. Naturally, the title of the piece is “The Solicitor General and the Shadow Docket.”

Law professors are so creative. I said earlier that I have been very lucky in my career to be at the right place at the right time. This is another case of that. I started working on the shadow docket at what was probably in retrospect the upslope of the remarkable shift in how the court uses it. I am on Twitter with Excel spreadsheets documenting all of the applications. I was able to see in live time how the court’s behavior was changing, and then the task became building the historical narrative and developing the yardstick against which to measure what the current court is doing.

I don’t want to spoil any parts of your book, but how did courts like the Warren Court, Burger Court, and Rehnquist Court use it, or did they use it traditionally?

The court has always had some mechanism for dealing with emergencies. Appellate Courts have to. The model that persisted throughout the 20th century or at least until 1980 is a very circuit justice-driven model where emergency applications were handled by the individual justice with geographic responsibility for that part of the country.

That model was not perfect. It could lead to some awkward moments if circuit justices disagreed with each other, which happened especially when Justice Douglass was one of them, but it had a couple of virtues. Circuit justices were more nimble. Meaning it was easier for a single justice to hold in-chambers oral arguments. It was more common for justices to write in-chambers opinions where they are writing it by themselves.

You had more process and you had less of a risk that this temporary interim order would be mistaken for some broad pronouncement from the full court. That was the pre-1980 model that had a lot going for it. The post-1980 model is what we are used to now, which is where any remotely divisive application gets referred to the full court, where the norm is to not have arguments.

There has been one set of arguments on emergency applications since the 1970s, where the norm is not to write anything. You have both less process and less transparency, and a much greater risk of the decisions being viewed as full court pronouncements on substance. That shift, which happened in the 1980s in the death penalty context, is a big part of the story because it’s only in the Trump administration that we see the court export the problematic changes in behavior that had, to that point, been confined to the capital context into the context of nationwide injunctions against immigration policies, statewide COVID restrictions, elections, and abortion. You name it.

You have mentioned capital punishment. What brought about the change in the ’80s to the different style of doing it?

As I talk about in chapter three, when the court brought back capital punishment in 1976 after the court had frozen capital punishment in 1972, it brought it back with a whole bunch of new legal obstacles and a whole bunch of new claims that death row prisoners could bring, but oftentimes not until an execution date had been set.

It’s an unintentional result of how the Supreme Court judicializes the death penalty that leads to an explosion in emergency applications en masse and then pushes the court to change how it deals with them. Everyone understood that the court was deeply divided about the death penalty. The court’s knee-jerk reaction was that the old circuit justice model would not hold up against the onslaught of new death penalty applications. In retrospect, I’m not sure that was right but it is profoundly responsible for where we are now.

I have this vision of you sitting in your home office with Excel open entering all kinds of data to try to get at the trends. I can only imagine being able to distill that information together, it had to be a tremendous amount of work. You were going back over a long period of time as you described to be able to call out trends in using the shadow docket. How did you fit that into your already busy schedule?

I suffer from the curse that when I’m interested in something and excited about something, I tend to work fast. That’s a good thing and a bad thing. It’s a good thing because it means I can be quite productive. It’s a bad thing because it means when I’m working on something I’m not excited about, it gets in the way. One of the wonderful things about my real job is that taking time to do research and to build that record is not frolic. It’s what we are supposed to be doing. I have been lucky to have a cadre of great research assistants and now two different sets of seminar students who helped with all of this. Their influences are all over the book.

It’s hard to imagine one person being able to take this on by themselves. It would take years, I would imagine. By the time you got it all together, the data would be out of date.

Therein lies the rub of writing a book about current events. I started that project on the upslope and I’m desperately hoping that we are on the downslope because the content of the book is locked as of last October. Any important thing that happened since last October is not in the book. We will see how that goes when folks are like, “Where’s the Mifepristone case?” Not there.

Just paving the way for the second edition I would imagine.

Let’s get through the first edition first.

How is the court treating its shadow docket orders in terms of precedential value?

That’s one of the other things that has shifted. Historically, the absolutely clear mantra was that these orders didn’t have any precedential effect because they are unexplained, and that’s changed. One of the things I talk about in the context of the COVID cases, especially with regard to religious liberty challenges to state COVID mitigation measures, is that we saw the court now overtly invoking unexplained orders as precedents in at least two contexts.

First, the court uses unsigned, unexplained orders as a basis for vacating and remanding decisions to lower courts and says, “We want you to reconsider what you did in light of this thing where we didn’t explain anything.” A so-called GVR, a Grant, Vacate and Remand. There’s also a remarkable order called Gateway City Church where the court chastises the Ninth Circuit and says, “The decision in this case was clearly dictated by our prior ruling in case with no opinion.”

Part of the story here is that things got out of hand probably in late-2020 and early-2021. I think we are now recovering from that a bit. The court has tweaked its behavior and at least moderated some of the excesses of the last couple of years. Part of that story too is about a response to public pressure and about how much the shadow docket became a source of public discussion and criticism of the court, especially after the SBA ruling in September 2021. This is to tie all the threads together. My principal goal in writing the book was not to persuade folks that my critiques are correct, but rather to persuade them that we ought to at least talk about the shadow docket as a significant part of what the court does.

We ought to understand all of the ways in which the Supreme Court affects all of our lives on a daily basis. Not just we the appellate lawyers, but we the non-appellate lawyers of America, in ways that might change how we talk about reforming the court or might change how we talk about accountability for the court. You name it. It’s a different conversation if we are looking at the full picture and not just seeing the court as the sum of its decisions in Dobbs and Bruen and those cases.

Shadow Docket: We ought to understand all the ways in which the Supreme Court affects all of our lives on a daily basis. Not just the appellate lawyers, but also the non-appellate lawyers of America, in ways that might change how we talk about reforming the court or might change how we talk about accountability for the court.

From a practical perspective, what does the court have in front of it when it’s looking at these issues? It doesn’t have the full record, I would presume, and probably a very limited briefing.

It’s a very limited briefing. Maybe it has a preliminary injunction record that maybe the district court was able to build in granting or denying a preliminary injunction. Even there, we have seen the court do stuff that’s flatly inconsistent with the record. It is no way to be doing deep principal decision-making. That’s not what emergency applications are for. The quicker that the court goes back to that understanding, the better for everybody.

The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic by Steve Vladeck

I don’t think we have said the name of the book, although it’s clearly about the Shadow Docket. The name of the book is The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. As we have said, by the time this episode airs, it’s going to be out. Where will our audience be able to find it? Is it pretty much anywhere?

Hopefully. That will be a test. Can you find it in your local bookstore? It’s on Amazon, Barnes & Noble, or your favorite local indie site. For folks who are in Austin, if that’s a significant part of the reader base, we are doing an event at BookPeople, Evan Smith, and me on May 25, 2023. Wherever your books are sold and wherever your podcasts are recorded.

We are going to wrap up here. You are going on a little mini-book tour, aren’t you?

A mini-tour. Believe it or not, the publishers these days are much more into podcasts than they are into bookstores. On the theory that you can get more people to listen to a podcast than you can into a room for a book talk.

That explains, maybe aside from a little goading from Karen, why you agreed to come on the show. It’s a fascinating issue. We are happy to talk about it. I’m interested to learn more about it because I don’t follow the US Supreme Court nearly as closely as you do. It’s a fascinating issue for me to hear about and I look forward to reading the book once it’s available.

We appreciate this. It’s our tradition to close up each episode with a tip or war story. Do you have something you’d like to share?

I will do a war story. My very first oral argument in any court ever was my first Supreme Court argument in January of 2018. It was in this hyper-technical military courts case that was known when it was granted as Dalmasi, although it was known when it was decided as Ortiz. If we had 45 minutes, I could tell you why the question was relevant.

I’m almost all the way through the top-side argument. I haven’t made a total fool out of myself. I haven’t spilled anything. I haven’t knocked over the microphone. I’m feeling good about having survived the gauntlet, and then Justice Kennedy gets this mirthful look on his face. He leans into the microphone in all seriousness, and he asked me whether I thought Marbury versus Madison was rightly decided.

There was a way in which the question was not unrelevant to the case because when you go to an oral argument, most of the people aren’t all the way into the case the way that the advocates and the judges are. He wasn’t asking about, “Does the Supreme Court have the power of judicial review?” He was asking about the actual holding of Marbury, whether Congress can’t expand the Supreme Court’s original jurisdiction.

There I am and my first argument’s going great, and all of a sudden Anthony Kennedy asked me if Marbury is rightly decided. The courtroom bursts out into laughter, including the rest of the justices. Kennedy is the only person not laughing, he says, “With respect to,” then he clarifies it. He’s asking me the real technical question.

There I am on the fly like, “Is Marbury rightly decided?” If you go back and read the transcript, I said something to the effect of, “I’m one of those Federal court scholars.” I shamelessly invoked my academic cred. I said, “I’m one of those Federal court scholars who think that Chief Justice Marshall read both the statute and the Constitution so he could reach the question he wanted to reach. That said, I’m not sure he was wrong.”

Before Kennedy could say another word, I said, “If there are no further questions, I’d like to reserve the balance of my time.” All of that is a long way of saying that when you are prepping for your very first argument ever, never fully give up on the possibility that someone is going to ask you if Marbury was rightly decided.

That’s a perfect place to end our discussion. Steve, thanks for being with us. We appreciate it.

Thank you for having me.

I look forward to reading the book.

I appreciate it. Thanks, guys.

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