What the Supreme Court is doing when you’re not paying attention

Welcome to The Highlight Podcast. Every month, a Vox journalist calls someone up — someone we think needs to be highlighted because of the cool, weird, or important work they’re doing.

This month, we’re highlighting Supreme Court scholar Steve Vladeck. He’s the author of an eye-opening book on the subject, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, and he’s been called out, by name, by a sitting Supreme Court justice.

We invited him on to the June episode of The Highlight Podcast because June is when the Supreme Court hands down blockbuster decisions on the year’s big, splashy cases. But Steve says it’s the wonky, unheralded work the court does the rest of the year that we should really be paying attention to. He calls that stuff “the shadow docket,” which he says is where the Court makes decisions that affect big important stuff, like immigration policy, access to abortion, and congressional redistricting. It happens quietly, in a cryptic language most of us don’t understand.

Vox journalist (and former host of a Supreme Court podcast) Julia Longoria spoke with Vladeck about how dangerous it is for the Supreme Court to be doing so much of its work without any accountability, and what, if anything, can be done to fix it.

This was an audio conversation, and we encourage you to listen to it while, after, or before you read. What follows is a text version that has been edited for length and clarity.

Listen to the episode here.

I feel like I’ve been reading your stuff for so long and I feel like I know you. So I’m really excited to dig in and I think I’m gonna try to eliminate all the wonk. I’m going to request that we ban certain words. Like “merit docket,” let’s try not to say that. Let’s try not to say the word “stay,” let’s try not to say the word “injunction,” and let’s try not to say the word “enjoin.”

Well, I will stay in my chair while I am thus enjoined against any discussion of the merits.

Shh, cut it out!

No, but there’s a deeper point here that I completely agree with, which is there’s unnecessary barriers between having folks who are really, really smart and really invested, but not necessarily legally trained to understand the Supreme Court. Those barriers are not necessary and are surmountable. One of my quests has been to surmount them. And so I am all for whatever we can do to sort of pull down the curtain.

You are the expert on what’s been called the shadow docket, which is a set of decisions that the Supreme Court is making, kind of in the shadows, away from the public eye, orders that are kind of written in a cryptic language, it’s hard to tell what’s happening. The usual drill is that decisions come out in June. We have this big flurry of news coverage of the Supreme Court in the summer. The court has taken months to deliberate and come out with these long blockbuster decisions. But we’re not talking about that today.

It turns out that those big, fancy decisions that we spend a lot of time parsing really are a tiny minority of what the Supreme Court actually does. I’ve been under the view for quite a while now that we don’t do a good job of talking about the court in general, that we are distracted by the biggest opinions that come down every May and June.

The Supreme Court is doing so much more that affects all of us: access to medical care for transgender adolescents, immigration policy, access to abortion, congressional redistricting. I think helping folks understand how all that’s happening in the literal and proverbial shadows is a big part of what I’ve been trying to do.

So if I want to find this so-called shadow docket, where do I look?

Yeah, good luck. ... An order on the shadow docket can show up in any one of five different web pages on the Supreme Court’s website, depending upon the exact nerdy technical form it takes. So you actually would have a difficult time finding these orders if you didn’t know where to look.

SCOTUS blog, we should say, is a fantastic resource that is independent of the US Supreme Court. There’s also my colleague, John Fritze, who works for CNN, who has his own tracker at shadowdocket.net.

Efforts by the media to actually start providing this kind of tracking is only a creature of the last couple of years. ... It would be arrogant of me to say that’s in response to my work, but certainly it’s in response to the raised profile of these kinds of applications.

I mean, Supreme Court Justice Samuel Alito did call you out by name, right, in a 2021 speech for popularizing this catchy term, the shadow docket, saying you’re trying to intimidate the court.

Yeah, that was awkward.

It’s pretty wild to be called out by a sitting Supreme Court justice. What was your reaction when he said that?

I wrote Justice Alito a letter after his speech because, even though he and I don’t agree about anything, I actually thought it was really useful, not just for my work, but for the broader project of bringing this stuff into the light, to have a Supreme Court justice publicly defending the court’s behavior.

How does a case get onto the shadow docket?’ My understanding is sometimes it’s on an emergency basis ... the court has to make a decision.

Sure, this is what the lawyers call emergency relief. Before a case gets up to the Supreme Court on appeal, say really early in a case where a party doesn’t like what a lower court has done. And so they’re going to ask the Supreme Court to step in at an early stage. Let me give you an example: I think the consensus narrative is that the Supreme Court legalized same-sex marriage in June of 2015 in the Obergefell decision. It turns out that Obergefell only actually legalized same-sex marriage in 13 states. By the time Obergefell was decided, it was already protected in 37 states.

When litigants had challenged their marriage bans, they had asked the Supreme Court to take up their appeal and the Supreme Court said no. And it said no in a series of unsigned, unexplained, one-sentence orders that were handed down on a random October morning in 2014. And those orders actually legalized same-sex marriage in more states than Obergefell did.

In the Texas abortion ban case in 2021, the court’s ruling had the effect of allowing a six-week abortion ban to go into effect in Texas nine months before the Supreme Court overruled Dobbs. These rulings that are by tradition unexplained, that can show up at any time of day, where we don’t know the vote count, where we don’t even know why the court is doing what it’s doing, have become much more pervasive, not just in that normal can we appeal or can’t we category, but in this exceptional “can we change the status quo while we appeal?” category.

Fascinating that on a sort of emergency basis, the court can basically block a law or not and not have to tell us why.

Yup! Multiply that by 20, 30, 40 cases like that every year and I think folks start to appreciate how these orders that by tradition are unsigned and unexplained, that don’t get nearly the same amount of process as those fancy opinions that come down at the end of May and June, are really a critically important part of what the Supreme Court does and how they affect all of our lives.

I wonder, has the Court always handled emergencies in this way ... essentially they decide something is an emergency so they all just vote in secret on it?

All the way to 1980, the court had emergencies come up. But the norm was to have them resolved by a single justice, the so-called circuit justice. And this is the justice who would have particular responsibility for one-ninth of the country geographically. And so the idea was that that justice would decide whether to intervene in an emergency or whether to stay out.

It makes sense, right? The court is not exactly famous for how fast it moves. If some issue comes up that it needs to vote on, I would imagine like, maybe they’re on vacation or something, that circuit justice has to step in and make a call. But when did that change or what were the problems with that?

So I think there were two problems.

[Note: What follows is a truly incredible story about President Nixon trying to get the Supreme Court to greenlight the bombing of Cambodia and Justice Thurgood Marshall not taking any guff. But you’ll have to listen to the podcast episode to hear it.]

That’s kind of wild, right?

But that’s how it worked!

[Note: Cool story you have to listen to on the podcast episode continues.]

And then the other thing that happened a couple years later was the Supreme Court reinstituted the death penalty in a way that provoked a flurry of emergency applications. And the court in response to that says, well, let’s just have the full court resolve these. So starting right around 1980, we start getting these full-court, unsigned, and unexplained orders denying requests to block executions.

So with death penalty cases, that’s the first time you’re getting the whole Court getting together behind the scenes, making decisions about people’s lives quickly and cryptically — arguably it’s actually an emergency basis ... it’s life or death. But then ... I imagine they start doing this behind-the-scenes decision-making in other areas too, right? Not just the death penalty?

That’s right. And the shift away from the death penalty really comes in the mid-2010s. It’s precipitated a bit by changes in the membership of the court, but it’s really the Trump administration that breaks the dam in how often it asked the court to step in and issue this kind of emergency relief. Does this immigration policy get to go into effect for two years while we litigate it? Does this Covid restriction get blocked while it’s litigated? Just sort of the whole gamut of statewide or nationwide policies now become ripe for at least some kind of decision on an emergency application in a way that we had never seen before.

So in the ’80s, the death penalty was a place where the Supreme Court started making these orders that decided life-and-death situations for people on death row. We have then, instances like Obergefell and same-sex marriage where the court is quietly changing national policy before it actually comes out with a big blockbuster decision. And then, President Trump takes office and that’s the first time a president is making regular use of the shadow docket, so to speak, to get policies through that maybe wouldn’t be approved if the court were taking a closer look?

Yes. So: travel ban 2.0. The Supreme Court was never going to uphold the second iteration of the travel ban, but because of the emergency application that the court granted, the Trump administration was able to have it in effect for the better part of six months. The ban on transgender service in the military, same thing. Lower courts blocked it. Supreme Court lets it go into effect without ever upholding it. All these things that the Supreme Court probably would have struck down if the full question of their lawfulness had ever come to the court. But because of these emergency applications, they’re allowed to go into effect until that day comes.

I started working on this project right around the summer of 2017, when we saw this uptick from the Trump administration. And one of the most important things I realized was that this wasn’t just a Trump-specific thing. Trump was in some respects a symptom and maybe a catalyst, but that the changes in the court’s behavior were kind of baked in.

And that’s where I think we have to start talking about the Court more as an institution. It’s not just about six conservatives versus three liberals, it’s actually about a court as an institution that has become much less accountable to Congress, to the American people, than any of its predecessors.

Is there any way to hold the court more accountable? Can the shadow docket change? And how do you think it should change?

I mean, sure. So let’s start with just you and me having this conversation. I think one of the most important things that all of this attention to the shadow docket has done is it has put public pressure on the court to shape up at least some of its behavior. But to me, the real culprit is Congress. And I think the question is how do we get a Congress that is so divided on partisan lines to look at the court in more institutional terms, and to look at ways in which the court could be reformed to make it more accountable without changing the bottom lines of these decisions?

What do you think is going to happen, Steve? In your heart of hearts, tell me what we’ll be talking about when I call you five years from today.

I don’t think this will surprise anyone. I think the Supreme Court’s role in the next presidency is going to depend a heck of a lot on who the president is.

I think if President Trump is somehow elected this fall, I think we’re going to be in a really interesting place where the Supreme Court is a bulwark against Trump, but where folks are going to realize all of a sudden that the Supreme Court has spent a lot of the last 15 years losing a lot of its credibility. And where it’s going to be harder for the court to be a bulwark against Trump, not because of a lack of support from the left but because of a lack of support from the right.

At which point I think a whole lot of people are going to wish that the Supreme Court was on firmer legitimacy grounds than it is. That’s why in the long term, I think it’s incumbent upon all of us to want to push for a court that actually is widely perceived as legitimate so that if we do end up in a situation with a future President Trump or someone like that, a court that is credible can be the institution that stands up against him.

So Justice Alito’s criticism of you that you’re trying to intimidate and delegitimize the court, there’s nothing to that. You want to see a court that we can all trust and that is legitimate for all of us.

Yes. I mean, I don’t doubt for a second that there are progressives who would do anything within their power to delegitimize the court and to do whatever they can to reduce public faith in the court. And I get that. I have a different project. Mark Anthony said he came to bury Caesar not to praise him, right?

I come to save the Court because I think a world without a Supreme Court or a world with a Supreme Court that has no public credibility is a very dangerous one in our constitutional system, and one in which it would be very hard to stand up to tyrannies of the majority. The alternative should not be a tyranny of unelected judges, right? The question is how do we strike a healthy balance? To me, we are where we are today because that balance, which had been pretty healthy for 200 years, has really gotten out of whack. And I think we fix that by restoring that balance, not by undermining it.