As the Court has moved right, it's been using the "shadow docket" to execute on more of its agenda. Previously reserved for emergencies, like stays of executions, the process of hearing cases outside of the Court's ordinary calendar is now frequently used to issue unsigned and unexplained decisions that overturn the status quo. We'll dig into it with University of Texas School of Law professor Steve Vladeck, and author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.
A podcast where we dissect and analyze the Supreme Court cases that left our civil rights weak, embarrassing, and pathetic like a Twitter Blue subscriber trying to go viral
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0:00:05.9 Speaker 1: Who knows what evil lurks in the hearts of men? The shadow knows.
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0:00:21.1 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking to Steve Vladeck, author of the new book, The Shadow Docket. The Shadow Docket is a catchy name for a catch-all tool that fields emergency requests to the court. But as the valence of the court has moved to the right, use of the shadow docket has skyrocketed. Critics argue that it allows the court to issue decisions without justifying them. Conservatives do not appreciate the feedback.
0:00:49.6 Speaker 3: Samuel Alito called out critics in Congress and in the media and said this, "The catchy and sinister term 'the shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways."
0:01:05.1 Leon: To our hosts and our guests, that sounds about right. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:15.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our Civil Rights weak, embarrassing and pathetic, like a Twitter Blue subscriber trying to go viral.
[laughter]
0:01:29.5 Michael: Oh, yeah.
0:01:31.0 Peter: I'm Peter, I'm here with Rhiannon.
0:01:31.8 Rhiannon: Hey, you're paying $8 a month for that.
0:01:34.1 Peter: And Michael.
0:01:36.0 Michael: Hey, everybody.
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0:01:42.3 Peter: Someone, please get me a Bluesky invite. These two...
0:01:42.9 Rhiannon: I'm trying so hard, Peter!
0:01:46.5 Peter: A lot of promises.
0:01:51.4 Michael: Peter, I am begging their CEO, literally.
0:01:51.5 Rhiannon: Michael is putting in the work on Bluesky for us, he is putting us on his back, Peter, and we have not gotten a single fucking invite code.
0:01:57.1 Peter: A lot of promises.
0:01:57.9 Michael: I talk of Bluesky on Twitter and then I screen grab that and I put it on Bluesky. I tag the CEO like, look at all the good work I'm doing for Bluesky. Nothing, nothing, man. The new guys suck.
0:02:11.0 Peter: Well...
0:02:15.8 Rhiannon: Go ask Michael Hobbs, Peter.
0:02:15.9 Peter: As you know, I could easily just tweet this request out and get it, but...
0:02:22.6 Michael: You're above that.
0:02:22.7 Peter: I'm only willing to be a begging, pathetic loser to you guys. I'm not gonna do it to 150,000 people at once.
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0:02:32.4 Peter: Anyway, no one knows what we're talking about.
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0:02:36.3 Peter: Soon, we are going to be joined by Professor Steve Vladeck, who has just written a book called The Shadow Docket, which is about the shadow docket, which we've talked about before. But to give some preliminary color, and I'm sure he'll explain it in more detail than I can, the Supreme Court hears cases in a couple of different ways. The traditional ways that people would petition the court, through a petition of certiorari, and say, "Hey, we think you should hear this case," and the Supreme Court would decide whether they should, and if they think you should, there would be briefing, there'd be oral argument, there would be a full opinion and that would decide the outcome of the case.
0:03:18.4 Michael: Right. And petitioning for cert or certiorari, is basically a request for the court to hear your case, granting cert is when the court agrees to hear the case.
0:03:27.9 Peter: Right. For example, when a party is asking for an injunction, meaning they want the court to halt the implementation of a law, policy, regulation, etcetera, they will often say, "Hey, I need this done quickly. I can't go through the court's normal process. I'm trying to get this injunction quickly, otherwise it's irrelevant," so that would go up to the court on an expedited basis, and that is what's considered the shadow docket, and that's not all of what the shadow docket is, but that's probably most of it for our purposes. And so what we're gonna talk about with Steve is the fact that we've seen more of this, and the court has been handling increasingly substantive, increasingly politically divisive cases on the shadow docket, which is important for a couple of reasons: One being that as a matter of practice, the court tends not to give written opinions for these cases, which means we have legally, politically important cases being decided without any reasoning being provided.
0:04:35.5 Rhiannon: Yeah, you often don't know which way the justices have even voted. Right?
0:04:39.1 Michael: Yeah, and because the shadow docket is just this sort of grab bag of like everything else the court does, other than the big main line decisions you hear about with oral argument and written opinions and all that, there are a lot of different ways it can be used and abused. One example is that they can make decisions that upset the status quo of the legal terrain with little opinion or no opinion. Another way they can do it is by not granting relief when they probably should, where all the standards are met for relief, like in the case of SB8, that Texas law, the Heartbeat bill, abortion ban, basically the bounty law, a very clear attempt at impinging constitutional right, and the court just let it go into effect, and they did it because they knew they were gonna overturn Roe v. Wade later, but in the meantime, it was just sort of chaos for lower courts for several months about the state of the law, because they declined to use the shadow docket as it's intended, to issue an injunction on like a big law that is changing the status quo.
0:05:53.4 Peter: Right. And all of that has sort of raised concerns about transparency, about what the Conservative majority's accretion of power to itself has sort of wrought here, and so Professor Vladeck wrote a book about it, and we're gonna talk to him about it.
0:06:12.6 Rhiannon: Yeah, along with some other stuff, like his Twitter account.
0:06:17.1 Peter: Yeah, maybe like a little legal media, a little academia...
0:06:23.6 Michael: Court reform.
0:06:24.6 Peter: All the juice.
0:06:26.3 Michael: All the good stuff.
0:06:27.4 Peter: All the good shit.
0:06:27.5 Michael: So let's bring him on.
0:06:32.4 Rhiannon: Okay, so, so excited that with us today is Professor Steve Vladeck. Steve, thanks for coming on with us.
0:06:36.5 Steve Vladeck: Thank you guys. It's a treat to be back, I feel like a second time guest is a weird thing.
0:06:41.2 Rhiannon: Yes, so Steve was actually our first guest on the podcast ever, it's episode somewhere before 20, maybe 17 or 18, Hernandez v. Mesa, Steve Vladeck was on with us.
0:06:53.1 Steve Vladeck: And yet you guys let me back on.
0:06:54.6 Rhiannon: And you actually were willing to come back on, having been on that early when our podcast was...
0:07:02.9 Michael: Yeah, it was rough around the edges...
0:07:03.0 Peter: Sure.
0:07:04.9 Rhiannon: Yeah. [laughter]
0:07:07.2 Steve Vladeck: I wear it as sort of a badge of honor that I was your first guest and I feel like that's a pretty cool claim to fame in 5-4 land.
0:07:13.0 Rhiannon: Yeah, congratulations.
0:07:13.6 Steve Vladeck: Thank you.
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0:07:15.4 Rhiannon: So Steve Vladeck is a law professor at the University of Texas School of Law. He teaches and writes about federal courts, constitutional law, civil procedure, and national security law, and he's also... We'll get into this later, but he's a law professor with a Twitter account.
0:07:31.2 Steve Vladeck: I am wearing my professor with a Twitter account t-shirt in your honor.
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0:07:39.6 Peter: The real question, Steve is, would you have been on 5-4 episode 17 had you been as famous as you are now? That's what lingers in my mind. Would you have risked your reputation?
0:07:51.3 Steve Vladeck: That's a different place, Peter.
[laughter]
0:07:55.9 Rhiannon: So Steve's new book is out in a couple of weeks, it's called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Steve, I think we'll just jump in, really excited to talk to you about the shadow docket and your book. So let's start maybe with the basics, what is the shadow docket?
0:08:14.9 Steve Vladeck: What is the shadow docket? It's a terrible term that liberals have invented to make the Supreme Court calm down.
[laughter]
0:08:21.1 Michael: That's right.
0:08:23.1 Steve Vladeck: Oh wait, I'm sorry, that's Justice Alito's version.
0:08:27.8 Rhiannon: Right.
0:08:28.4 Steve Vladeck: The irony is that, actually, the term was coined by a Conservative law professor, Will Baude, who clerked for John Roberts, and it wasn't meant as a pejorative, Will meant it as this just evocative shorthand to encompass basically everything that the Supreme Court does other than the fancy sign "merits opinions" we get each term.
0:08:46.4 Michael: Again, terminology, "merits decisions," that's when the court fully hears a case, it gets full briefing, gets oral argument, and then makes a final decision about it.
0:08:58.1 Steve Vladeck: And the gist of Will's sort of coinage, the gist of the term was like, "Hey, we should actually look at the more inscrutable things that the Supreme Court does, there's important stuff happening there." So when Will coined the term in 2015, he was really talking about summary reversals at the cert stage and how there had been a bunch more of these per curiam opinions reversed in the lower courts without oral argument, but the crazy thing is, of course, as you guys know, since 2015, lots of other things where the court is doing big rulings through unsigned, unexplained orders have actually gotten more attention, gotten more press and have made this I think a much bigger deal.
0:09:33.3 Rhiannon: Yeah, yeah, so talk a little bit about those specific cases. What are they deciding on the shadow docket? What is the Supreme Court deciding on the shadow docket? I think people, certainly last year, maybe last summer, people were hearing the term shadow docket, non-law students, non-lawyers, and sort of getting a sense even from the terminology 'shadow docket' that you just alluded to, like something weird is happening over there at the Supreme Court on this. So what is happening on this docket?
0:10:07.8 Steve Vladeck: Yeah. So the reality is that because it's this umbrella term, a lot of random different things are happening, but I think the two biggest categories are grants and denials of certiorari, basically how the court decides which cases to hear and which cases not to hear, which we've always known about, which isn't new, but I think which is getting more attention as its own independent topic. And then I think in the last couple of years, the real source of most shadow docket drama and attention, what Justice Alito calls the emergency docket, which is when parties go to the court for emergency relief, whether to stay a lower court ruling, or if a lower court refused to issue a stay, to actually reach out and enjoin government actor themselves.
0:10:45.7 Steve Vladeck: And we've seen obviously lots of cert-granted denials, that's every term, we've seen a real uptick in how often the court is granting emergency relief, how often it's basically sort of disrupting the status quo while a case works its way up to the Supreme Court, really since 2017. And these orders are by tradition, they're unsigned, they're unexplained, but they're increasingly having these massive impacts. So the OSHA vaccination or testing mandate blocked through a shadow docket order that had a short majority opinion, but no author. The rationale was very cryptic. The Texas six-week abortion ban allowed to go into effect by a 5-4 ruling in a barely explained order. A whole bunch of Trump immigration policies from the third country asylum rule to the border wall, to the second iteration of the travel ban, allowed to go into effect after lower courts had blocked them through these unsigned, unexplained orders. And so I think, I started paying attention to this stuff really sort of early in the Trump administration, 'cause it seemed like the Supreme Court was using these kinds of orders in ways that were meaningfully different from what had happened previously.
0:11:56.5 Steve Vladeck: And as time went on and we saw this sort of continue to blow up, as it seeped out of Trump policies and into state COVID mitigation measures, it seemed like it was actually kind of important to try to document all of this in a way that was comprehensive, and also to try to figure out whether this behavior really was, as it felt to me, new and unprecedented, or whether it was just a different version of what we did in the past. So that's sort of the genesis of the book.
0:12:19.9 Peter: And so really, for the sake of our listeners, you have two broad paths, if you're bringing something to the Supreme Court. One is you go through the standard, you petition for certiorari, they will look at it, grant it or not, and then hear it some point during the term, they maybe grant it in October or around that, and hear oral argument in the next couple of months, and throw out an opinion in late spring, early summer.
0:12:47.7 Rhiannon: They take full briefing, which means the lawyers submit all of their briefs, all of their arguments...
0:12:53.1 Steve Vladeck: Lots of friends of the court...
0:12:54.7 Rhiannon: Yes.
0:12:56.5 Peter: Right. Everyone's weighing in, everyone's hashing things out, and then you have the shadow docket and especially the "emergency docket," where you have essentially urgent issues arising. Someone is petitioning the Supreme Court saying, "Hey, something is happening right now," either in a lower court or elsewhere...
0:13:17.5 Michael: My execution date is in three days.
0:13:21.0 Peter: Right, my execution date is pending. It's very soon, I need this escalated and handled right now. Or I need an injunction against the federal government who is trying to make me get a vaccine.
[laughter]
0:13:32.2 Rhiannon: Right.
0:13:32.4 Michael: Or this 23-year-old FDA grant of approval for an abortion medication, and you wanna get that stopped right now.
0:13:40.0 Peter: Yeah. Emergencies.
0:13:43.6 Michael: Yeah, emergency. Yeah.
0:13:45.5 Rhiannon: Right, yeah, yeah.
0:13:46.9 Peter: So all of a sudden you have a lot of emergency matters that are suddenly much more substantive, much more politically heated, and I imagine that the project of your book is sussing out the degree to which that's a deviation from past practice and what that means.
0:14:07.7 Steve Vladeck: I guess what I would say is the death penalty example is a great one, because it's really in the sort of reinstitution of the death penalty in the late 1970s and early 1980s that we actually see the first seeds of the court's modern behavior when it comes to these concepts of emergency applications. So guys, before the mid-70s, if there was a real emergency, the court would do one of two things, either the individual circuit justice, the one of the nine justices assigned to handle procedural matters from a particular geographic part of the country, would deal with it by themselves, which meant in-chambers, they might have oral argument in-chambers, they might write an in-chambers opinion, but it would be by themselves, so no one would confuse them with the full court, or they've got the whole court together and hustle up and do a merits expeditious review.
0:14:52.2 Steve Vladeck: They'd grant cert before judgment, they'd have oral argument, they'd give everyone a chance to be heard and they'd hustle, and those were the two modes. One justice to sort of deal with the status quo, the full court if you really need a decision. What changes with the reinstitution of the death penalty is the court starts having the full court handle the emergency procedural side in ways that it really hadn't before. And for the better part of 30, 35 years, that stays mostly in the death penalty context, so that it's a huge problem. And there's all of this, I think, institutionally bad behavior, but everyone chalks it up to death is different, so that if the court is intervening to stay an execution or to un-stay an execution, that's enormously consequential for the death row prisoner and for the state and for potentially the victims, right?
0:15:40.3 Steve Vladeck: But not for the law, there's not like massive nationwide, even statewide legal implications from that, versus starting in the Trump era, when the court's intervening in a way that is either putting nationwide injunctions on hold, so that federal policies can be carried out or issuing its own injunctions of statewide COVID mitigation measures. So Peter, I think the difference is, it's the qualitative impact that really shifts starting around 2017, even as the numbers are going up, too. So the court's intervening more often than at any point since the early 1980s. And unlike in the early 1980s, when those interventions were all about executions, now each intervention is having a massive impact on millions of people, on their rights on everything, from access to Mifepristone, to the congressional district maps that were used in the 2020 midterms. It's like every single issue that's in the federal courts anywhere is now getting to the Supreme Court through emergency applications and the justices aren't shying away from intervening when five of them think it's necessary.
0:16:45.1 Rhiannon: We know that the Supreme Court sort of controls their docket. They decide which cases to take, they decide the number of cases to take. Is it the same on the shadow docket? Are they deciding which ones to accept on this emergency basis, and then therefore you have the sort of politics of this imbued in that process as well?
0:17:06.4 Steve Vladeck: Rhiannon, I think that's clear beyond peradventure. One of the things I really try to document in the book is that there are various substantive through lines you could try to offer for small subsets of the court's behavior in the shadow docket in the last five or six years, but none of them hold up if you look at the data set en masse, right? You could tell a story about the court wanting to give the executive a freer hand in immigration policy, or the court being hostile to nationwide injunctions that ought to have translated to the Biden administration having a similar track record when going to the Supreme Court for stays of nationwide injunctions issued by federal judges in Texas. And we haven't seen that, and so yes, so it turns out that the best predictor of how the court's gonna handle any high profile emergency application with a partisan valence is the partisan valence, with one additional thing that makes it worse than the merits docket. We're not shocked when the court takes up affirmative action and when they do what they're gonna do with affirmative action; maybe we are, but we're not like, we saw it coming to a degree, right?
0:18:11.5 Rhiannon: Sure, yeah.
0:18:12.2 Steve Vladeck: But at least they have to write an opinion, and one of the things I think that's especially problematic about how much the court is doing through unsigned, unexplained orders is it's easier. If you don't have to endorse a 65-page rationale that can then be deployed against you in a future case with different parties where you feel differently, it's actually easier, I think, to sign on to some of these orders. And it's easier to avoid setting precedents that actually would look more judicial in the sense that they would apply regardless of the valence of the dispute.
0:18:40.8 Peter: Right. I wanna kind of grab on to that because I do think that that helps maybe address a sort of not quite a critique of shadow docket concerns, but I do think that there's an argument that essentially we are sort of downstream of the real problem, meaning that the real concern here is, there's a Conservative supermajority, Conservatives have sort of seized power over the court, and the fact that the shadow docket is potentially being abused or utilized in these ways that are unprecedented is really an output of that to a degree, that they have sort of accumulated enough power that they can then use these mechanisms in new unprecedented ways, just like they are coming out on the merits much further to the right of the prior courts. So I'm wondering how you would articulate what the precise problem with this use of the shadow docket is, because you look at a lot of these things and you think, is my fundamental concern here the use of the shadow docket or is it that...
0:19:50.7 Rhiannon: Six maniacs are on the Supreme Court? [laughter]
0:19:53.1 Peter: Right. The Conservatives are doing very Conservative things. So what's your sort of case that part of the problem is the shadow docket itself?
0:20:00.0 Steve Vladeck: [0:20:00.1] ____ I think both are true. I think the best argument that actually the shadow docket is a bigger problem comes from Justice Barrett. So Justice Barrett, who actually is a remarkable figure in this story, because I think she has actually completely changed her view of emergency applications in the last year and a half, and has pissed off Justice Alito in the process, but Barrett gave the speech at the Ronald Reagan Presidential Library in April of 2022. And she knows Dobbs is coming, she knows Bruen is coming, she knows all of these decisions that are gonna get everyone fired up are coming, and she says, "Hey listen, before you dismiss us as partisan hacks, read the opinion," that was the big quote that came out of that speech, "And decide for yourself." And her point was not that we're supposed to agree with their principles, her point was that we are supposed to agree that they are principles, and that those principles might be contestable and they might be ones that we find convenient and subjective and malleable and un-persuasive, but they're still principles, versus doing all this stuff in a context in which you're not even explaining yourself.
0:21:03.9 Rhiannon: Right.
0:21:04.0 Steve Vladeck: And so I guess, Peter, to me, part of the problem is that the court has, for better or for worse, always articulated its authority as a function of its ability to provide principled justifications for its decisions, and in the context of unsigned, unexplained orders, that's just not there. Now, I think one response that I get a lot is, well, the court has to have some way of dealing with emergencies. Yes, it is a completely superficially stupid response to the critiques of the shadow docket that the court needs a shadow docket. People like me are not anti-shadow docket, the question is, how is the court using it in ways that are institutionally sound and principled, and how does the court insulate against charges that it's just another, even easier, more base exercise of partisan political power? And the irony is that I actually think that it's harder for the Conservative justices to offer that defense in this context than it is in the context of the much maligned merits decisions of the last couple terms.
0:22:01.7 Rhiannon: What's the prescription, right? What's the solution given the current court's makeup?
0:22:06.8 Steve Vladeck: So the first thing is, when I started working on this project many eons ago, back in the Anthony Kennedy days, which seems so halcyon now, I thought the first solution was just getting people to pay attention. And here I am talking to you guys about it and the book's coming out, and even Justice Alito is now writing angry dissents about the criticisms of the shadow docket. I think we've hit step one, which is raising public awareness of the shadow docket. Ironically, I think 'cause the court did it itself. And this is why, I mentioned Justice Barrett before, I think there's pretty persuasive circumstantial evidence that both Justice Barrett and Justice Kavanaugh have moderated their approach to at least emergency applications over the last year and a half. I think some of that evidence comes from Justice Alito's dissent in the Mifepristone case, where he's pissed off that he's lost them, and what's that a response to? I don't think it's a response to me, but I do think it's a response to Justice Kagan leveling various criticisms of this behavior, Chief Justice Roberts has dissented from a bunch of these orders on procedural grounds, where he's called out the other Conservatives for taking these short cuts.
0:23:16.3 Steve Vladeck: So Rhiannon, it starts with just accepting that here's a context where public awareness and public pushback has probably already had at least some salutary effect on the court's behavior. What I take from that is that we shouldn't be as fatalistic, 'cause I think a lot of progressives are these days, that public pressure is pointless. I think it's just about where it's gonna be most effective. So is public pressure gonna talk the Conservatives off of Dobbs? No. Is public pressure gonna talk them off of whatever is coming on the affirmative action cases? No, but public pressure about more technical procedural behavior, where you can make a pretty compelling case that the court is wildly abandoning its prior norms in the space, where the argument is actually that it's not that you don't have this power, it's that you need to exercise this power responsibly so that you will actually be perceived as more legitimate, I think there's actually room for that. And I think the irony of it is that the folks who are most hostile to the court right now probably don't want that to work, they're probably more into burning the whole thing down. And this is where I think I'm a little bit of an awkward centrist on this. I kind of want the court to stick around, but I want it to be a lot healthier as an institution.
0:24:30.9 Michael: So if I'm understanding you right, I just wanna recap a little bit, it seems like what you're saying is the shadow docket has allowed the Conservatives to do a lot of substantive things without oral argument, without written opinion, in ways that make it difficult for the regular person to see or understand, for lower courts to understand what the new governing rules are. And also so that they're not sort of bound or stuck, looking like hypocrites later on when they want to rule differently when it's a Democrat in office or whatever. So it feels to me kind of like having this activist Conservative majority is like a stress test on the institution and we start to see what parts of it just don't work well. Is that fair?
0:25:22.9 Steve Vladeck: I would add one thing, which is not just what parts of it don't work well, but what part of the inter-branch dynamic that I think has historically exerted more hydraulic pressure on the court, to sort of not be quite as... How do I say? Aggressive, is also not working well, and so I don't think it's a coincidence that the rise of the shadow docket has come in this midst of this period where Congress has basically abdicated any responsibility for overseeing the Supreme Court. One of the things that the book tries to do, especially for folks who are not the Supreme Court nerds that we all might have to confess to being...
0:26:00.5 Rhiannon: Not me. Definitely not me.
[laughter]
0:26:03.9 Peter: No, none of us.
0:26:05.6 Steve Vladeck: But I start with the history of the court, and Chapter One tells the history of the court through the rise of certiorari as a way of saying, hey y'all... There was a long period of time where there was this really active, robust back and forth conversation between the court and Congress about what the court ought to be doing, and the court basically won everything it wanted to so much so that Congress is now basically like, "Oh, it's not even our job to do this anymore." And we see that, I think, in all of the ethics stuff that is swirling around, we see that in the incredible shrinking docket that the court is, for the fourth term in a row, not gonna hit 60 merits decisions after not going below 60 since the Civil War.
0:26:49.4 Steve Vladeck: I think there are all of these symptoms and the shadow docket is just a really, really big flashing red light one, of a court that just does whatever the heck it wants, where part of the story I try to tell in the book is that this isn't inevitable, it's not even inevitably the function of a six-justice Conservative majority, it's just I think a fortuitous consequence of our current political situation in ways that maybe Congress is not gonna be in a hurry to fix, at least not this Congress, but where again, the more we're talking about it publicly, the more smart people are paying attention to this part of the court's work, maybe the more that that at least slowly ratchets up the pressure to do something and that even those small baby steps are an improvement over where we are right now.
0:27:32.8 Peter: And is there a clean prescription? If you're saying step one, public pressure, is it like step two, we start tinkering with the federal rules of appellate procedure? Is there something specific that you have in mind here?
0:27:45.6 Steve Vladeck: There are a lot of specifics, and I lay out some of them in the book, but I also try to suggest that the specifics are actually not as important as the principle of reasserting some modicum of accountability. So from the court's perspective, I do think that the court should take it upon itself to commit to writing at least some rationale any time it's changing the status quo. So any time it is granting emergency relief in any form, granting a stay, vacating a stay, granting an injunction, vacating an injunction, like tell them something. I think a really good example of this is the Alabama redistricting case from February of 2022. That was a case about whether Alabama could use the new maps it drew after the 2020 census, two different district courts had held that it couldn't, and that it was required to draw a second so-called majority-minority district to comply with the Voting Rights Act. There's a really, really long opinion by each of the two district courts, it's really thorough, and the Supreme Court just freezes that with no explanation, same thing happened a couple months later in Louisiana, Louisiana says, we wanna draw our districts this way, federal district court says, no, you can't, in a 152-page opinion that actually says why this case was different from Alabama.
0:28:54.7 Steve Vladeck: The Fifth Circuit doesn't stay the district court. The Fifth Circuit sides with the plaintiffs in a Voting Rights Act case and writes a 33-page opinion about why it was doing so, and the Supreme Court freezes that in an unexplained stay. So the first and most obvious norm is when you're upsetting the status quo, say something. I think the second norm is kick as much of this as you can to the merits docket, and we've seen some of that this term, the student loan cases. Two years ago, the student loan cases would have been handled entirely on the shadow docket.
0:29:26.3 Michael: Right. And I think this is to your point about Coney Barrett and Kavanagh evolving on the shadow docket, that they don't feel comfortable striking down a big policy without opinion or with a very brief opinion, they're like, "If we're gonna do this, we have to have full oral argument and we have to write an opinion," which ultimately might have saved student loan relief, we'll see.
0:29:52.5 Steve Vladeck: So a decision sometime in the next, what, eight weeks, right?
0:29:57.4 Rhiannon: Ugh. No way. [laughter]
0:29:58.0 Steve Vladeck: No, but, I mean, Rhiannon, this is where I think I sound a bit weird, but I would prefer a terrible 60-page opinion that completely screws up Article III Standing doctrine, and that we can all say, look at how it screws up Article III Standing doctrine.
0:30:11.0 Rhiannon: Over nothing. Right.
0:30:12.1 Steve Vladeck: Right. To a one sentence where it has no explanation at all.
0:30:13.8 Rhiannon: Exactly.
0:30:15.2 Steve Vladeck: So yes, I would prefer that if you're going to stab us, stab us in the heart as opposed to like stabbing us in the back.
0:30:23.9 Peter: Right, maybe there's an argument that this moderates them because when you have to explain yourself, it puts you in a position where you are sort of forced to have just some tiny amount of humility, right?
0:30:37.3 Michael: Yeah, isn't that infamously what happened with the first Obamacare case, that Roberts was just like, "This doesn't right. I'm trying to right it and I can't."?
0:30:47.3 Steve Vladeck: Yeah. And I think sometimes the dissents from some of the justices in shadow docket cases are even more revealing of that, so I think Justice Alito's dissent from the stay the court issued in the Mifepristone case is actually a really good example that when he actually had to write something about why he would have put Judge Kacsmaryk's ruling into effect, he wrote three and a half pages of... I wouldn't say non... It's not nonsense, it's just like remarkably... How do I say? Misleading and unpersuasive arguments that then people like us can say, "Hey guys, look at why these arguments are misleading and unpersuasive."
0:31:20.9 Peter: Right.
0:31:21.0 Rhiannon: Exactly. Yeah, it's at least something to point to, right?
0:31:24.4 Michael: Yeah.
0:31:24.8 Steve Vladeck: You know, compared to having a liberal majority on the Supreme Court, this is not exactly the solution, but I also think, Peter... And this is sort of where I would tie it all together, I think it's also worth a conversation that maybe Congress starts but the court also has, about whether it's not worth going back to the old ways and having the circuit justice model dominate. Now, folks will say, well, wait a second, that means Justice Alito is gonna be in charge of everything in the Fifth Circuit. And my response is, yeah, but I actually have faith that if the court reached some kind of internal consensus that the job of the circuit justice is to do today what it was historically, which is to rule how the justice thought the full court would rule, that actually that would have a salutary effect in, no one would mistake those rulings for that of a full court, you could still get the whole court back together, if it was a really out of kilter or a really big deal. I just... To me, the point is, there are lots of potential solutions, I'm not wedded to any of them, but they all start with accepting that unsigned, unexplained orders of this kind of impact are just really unhealthy for the court as an institution, and are at least historically... And this is the point that I think the book tries to make most emphatically, novel. We have not seen behavior like this, either qualitatively or quantitatively, at any prior point in the court's history.
0:32:42.2 Michael: Right. It's new, it's different, it's voluminous, it's wide-ranging in impact. And it's not good. Right? It's got a very poor combination happening there.
0:32:53.5 Steve Vladeck: And it's not good even when maybe it reaches the right results.
0:32:56.5 Michael: Yeah, yeah, for sure.
0:32:56.6 Steve Vladeck: The Mifepristone case is a good example to me. I am very happy that the court stayed Kacsmaryk's preposterous ruling, but think of how much better it would have been if the court had taken the time to write two pages about why it was clear that the applicants, the FDA and Danco Laboratories were gonna succeed on the plaintiff's lack of standing.
0:33:16.5 Michael: Right.
0:33:17.2 Rhiannon: Right.
0:33:18.7 Steve Vladeck: We'd be done.
0:33:20.6 Michael: Right, they'd be basically telling the lower courts how to rule and we wouldn't have to be going through another year of gnashing our teeth and worrying about this while it's very unstable. Right?
0:33:32.7 Steve Vladeck: Right. And I think it's worth stressing. Alito is the justice who talks the most about why people like me are wrong, and I appreciate that he does, 'cause it's helpful to have that out there. Right? And I think the one place where he's on to something is the notion that like the court is reacting, the court isn't going out and making these emergencies out of thin air. So part of what's happening, guys, is we're seeing the Mifepristone case play out over and over again, in different contexts, where plaintiffs bring a case before a very, very friendly judge, where the judge issues a nationwide injunction. And all of a sudden, all hell breaks loose.
0:34:04.8 Steve Vladeck: To me, that's a problem too, but if it's a problem that's motivating and compelling the court to act, the court ought to say something, and that's the part that's missing from the historical model. The certiorari is a great example of this, the statute that gave the court the massive certiorari power, technically it's the Judiciary Act of 1925. Everyone calls it the Judge's Bill. Why is it called the Judge's Bill? 'Cause the Supreme Court wrote it, and they went and testified in favor of it, and Chief Justice Taft is behind the scenes glad-handing with everyone he used to glad-hand to get the bill through Congress. There's precedent for the court being part of this conversation about how to clean up docket problems in the federal courts, and the notion that the court today is just like, we can't be bothered by that, I think is a big part of how we got to where we are.
0:34:52.6 Rhiannon: Yeah.
0:34:54.1 Peter: I think it is time for a quick break.
0:35:00.0 Rhiannon: Okay, we are back.
0:35:00.5 Michael: So I wanna change gears a little bit. We will circle back to reform, but I mentioned earlier that thinking this is sort of like a stress test, where the cracks are showing. I feel like another area where the cracks are showing right now is in legal education, and I'm wondering about what your thoughts are on teaching Con Law in a time of lots of upheaval, instability in the law, clear partisan politics influencing decisions, and how that relates to the way law is typically taught as this sort of iterative, almost like narrative evolution, where we're deconstructing the cases and pulling out principles to create a coherent story. Right? It feels incongruous, right?
0:35:49.8 Peter: Yeah, if I can add to that, I keep hearing people saying this opinion is lawless when they read Kacsmaryk's opinion or Dobbs and I think what they actually mean is that this lacks the thread of logic that I thought was supposed to run through these. Right? And that's how I was taught Con Law, Professor, almost to a fault, trying to pull threads of logic out of multiple Supreme Court cases, and now I sort of wonder how you do that when the court is readily abandoning those threads.
0:36:27.8 Michael: And we're asking this question 'cause we get asked this all the time.
0:36:30.0 Rhiannon: By law students, they're asking us all the time.
0:36:32.6 Michael: Everywhere we go, they wanna know why are they being taught that the law is impartial when they can see with their own eyes that it's nakedly partisan?
0:36:39.7 Steve Vladeck: You probably get asked it more than they're asking their professors, which I think is revealing, right? So I had this... It's funny, the Mifepristone case was actually this remarkable... I taught Federal Courts this semester, which in some ways is actually an even more pressure point class...
0:36:54.9 Michael: Yes.
0:36:55.7 Steve Vladeck: For this conversation, because at least some of Con Law is safe and historical, and you can lock it up in a jar and say, "All I'm teaching right now is the history of the New Deal. That hasn't changed, the New Deal still happened," whereas Federal Courts you are constantly confronted with both the high and the low politics of the moment, and so it's interesting 'cause while we were doing our regular syllabus, I was also basically live teaching the Mifepristone litigation, 'cause I thought it was both relevant and local, and there's a moment one day where one of my students basically said, "Why does any of this matter?" And I basically stopped class, and we had a 25-minute conversation about teaching and taking Federal Courts in a time of 2023.
0:37:42.5 Michael: For our listeners who don't know, that's a class that's very much about literally the power and jurisdiction of the courts, what they can and can't do, their relationship with Congress, what Congress can and can't do to limit the courts, things like that. So that stuff is in a lot of ways even more in flux right now than a lot of constitutional law, because the Supreme Court and the right-wing courts are busy irrigating so much power to themselves in the face of a dysfunctional Congress.
0:38:18.7 Steve Vladeck: And I guess I don't have a perfect answer. I think I have sort of a two-part answer, and you guys should grade it 'cause I don't get graded enough.
[laughter]
0:38:24.9 Michael: Okay.
0:38:25.7 Steve Vladeck: Although the Texas legislature is trying to change that.
[laughter]
0:38:32.1 Steve Vladeck: Any day now. So the first part of my answer is that I am not a typical professor, but I've always thought that the institutions are the important players in the classes I teach, and that Constitutional Law is not an abstraction, it is a product of the institutions that form it, and so I spend a lot of time, even in the first year of Con Law class teaching like the history of the Supreme Court as an institution. Federal courts is all about the federal court as an institution. And so what I say is, part of why I think the institutional focus is so important is because institutional norms and priorities shift in ways that if you didn't look at the institution as such, you would miss or at least you wouldn't properly contextualize what's happening, you know, the switch in time in 1937.
0:39:11.1 Michael: Yeah, the switch in time saves nine was basically when one Supreme Court Justice changed his vote on the New Deal, upheld this broad federal authority to do minimum wage laws and do all this important stuff, but if he hadn't, the threat was that Roosevelt would add justices to outnumber and overrule the reactionaries who stood in the way of his agenda.
0:39:36.6 Steve Vladeck: And you can't teach that without teaching the broader history of FDR running against the court, of the court's hostility to the New Deal, of the court packing plan. All of that seems like part of the story. So the top level, like Disneyland version is like, it's the institutions that matter, not the law, and law is just something the institutions do, but the second part of that, and this is where I think I get a little more trouble, is that I also say, and in any event that you or I think that various courts are acting deeply irresponsibly today, does not mean that there's no law. And I used the 2020 election as my example, and the Supreme Court's repeated refusal to intervene in the election. There were, at various points, 13 different requests for the Supreme Court to take up one of the election cases, the most visible of which was Ken Paxton's crazy bananas original jurisdiction suit against Pennsylvania and Michigan and Wisconsin.
0:40:36.7 Michael: With the Kraken lawsuit and...
0:40:39.7 Steve Vladeck: They're the Krakens, right. And I say like, listen, why did the court turn those cases down? Presumably, this was the political result that we assume that a majority of the justices wanted was four more years of Republican administration, four more years of Leonard Leo's judicial nominees. So why not do it, right? And they had the right reaction, which is, some lines you don't cross. There are things even this court won't do, and my response was, yeah, that's law. They draw the line in a different place than you and I would. And indeed, than you and I might think they should, but that's still law. And I think that's not necessarily a comfortable place to take that conversation, but I think it was an important point to make to them. The Mifepristone stay, why did probably at least six of the justices, including at least three of the Conservatives vote to stay that ruling by Kacsmaryk? Because law still matters a little bit, even if it's not the conception of law that we would prefer this court to endorse.
0:41:38.7 Rhiannon: Yeah, yeah, we talk about the Overton window shifting a lot, right? It's shifted a lot, but it means something to them in some way, right? There is a line.
0:41:48.5 Peter: Or that what you consider the outer boundaries of any given constitutional doctrine to be are dictated by your ideology, and ideology includes not just your partisan beliefs about who should win the election, for example, but your ideological beliefs about the court's role in elections, etcetera. So my sort of answer to why didn't the court intervene in 2020 is... Sure, maybe it was completely cynical. We don't think we can get away with this, or something along those lines, but it's also that we've always said that law is the output of ideology, but that has nuance, right? What ideology is, is more nuanced than who I want to win an election. And that's sort of what you're looking at when you look at 2020, for example.
0:42:39.4 Steve Vladeck: I agree with all of that, but that still means the law is doing work, maybe not law as you or I would want it, but law. To take this one step further back, the question started as being about the state of legal academia. I think part of the problem is that I'm pretty confident that I'm an outlier in all of these respects.
0:42:56.8 Michael: Yeah, the way you were talking about teaching Con Law, I was like, that's great. That's, like we literally just... I literally said that this is how Con Law should be taught, I think at UChicago, just a couple weeks ago, so...
0:43:06.0 Steve Vladeck: Definitely, that's the right audience for that.
[laughter]
0:43:12.2 Rhiannon: Yeah. They were struggling.
0:43:15.7 Michael: Dude, they were...
0:43:16.7 Rhiannon: We need to take a minute. Shoutout to the students of UChicago.
0:43:17.4 Michael: Oh man...
0:43:19.5 Rhiannon: They were struggling. It was desperation in the air, stay strong. Stay strong, friends.
[laughter]
0:43:24.6 Steve Vladeck: But I think there's an important point here, guys, which is that law school applicants are consumers, and it seems like one of the things that these consumers should be arming themselves with is information about how prevalent or not prevalent that kind of, whether you wanna call it pragmatic or realistic, or legal realist methodology is in core courses. And it's probably about maybe 50-50 on my faculty of the folks who teach the big public law courses, how much we are trying to teach them about the world we live in, as opposed to the idealized version of the law, I think different schools have different balances, but that is a thing that can't be known. I don't expect all of my colleagues to teach their courses the way that I teach mine, partly because I think we are all different, and one of the first, most important things I learned about teaching is the importance of being yourself, but I do think that it's reasonable for students and for prospective students to actually ask like, "Hey, what kinds of events are going on at the law school? Who's teaching these courses? Can you take these classes and actually learn about what's happening in say, the Fifth Circuit?"
0:44:32.0 Steve Vladeck: So part of it is also just like, it is inevitable that the answer is gonna vary, and I just... I wish that folks sort of viewed it as more of the informational package and the recruiting package that they actually look at like, is the academic culture of the place one that actually lends itself to that kind of real world? If not... I'm not sure I can say critical for much longer, but right realist approach.
0:44:54.3 Michael: I wanna offer quickly though, maybe a sharp criticism.
0:45:00.5 Steve Vladeck: Please.
0:45:00.6 Michael: Not of you, but of the other approach to law, the more sort of proceduralist, positivist approach and get your thoughts on it, because we just did Palmer v. Thompson, which if you remember is the drained pool case.
0:45:14.9 Steve Vladeck: Yes.
0:45:15.6 Michael: You know, reading it and thinking about how it fit into my legal education, where I read a few paragraphs about it, excerpted it in a case book as part of this very formalistic structure about how equal protection is done. Oh, is there explicit discrimination and what standard of review are you in? Blah, blah, blah. And looking back, it feels like a lot of that, if you're not taking the institution seriously and not talking about the context, all you end up doing is whitewashing racism, whitewashing white supremacy and apologizing for reactionary forces. It's something more insidious than just incomplete, like you're doing work here for them. You're doing their job for them, in a sense.
0:46:01.1 Steve Vladeck: It depends on what the professor's stated pedagogical goal is. If the goal is to equip the students with the best possible education to go out into the legal world and have an impact, then I think your criticism is incredibly fair. If the goal is to allow the student to develop an understanding of doctrine as such, I think that criticism is a little bit sort of askew, not 'cause it's wrong, but just because it's not tailored to the professor's goals.
0:46:30.1 Peter: But is that... I don't wanna say is that a valid goal because it feels a little too binary, but surely we can make subjective judgments about the value of that as a goal, and I think that when I was in law school a bit over a decade ago, you had a bunch of professors who were very oriented towards doctrine, very heavy on jurisprudence. And I feel like, as a result, the modern era caught them off guard and they were not able to predict what the court would become. And that is an objective failure, in a sense. And now it might be that in a vacuum, their goal was to teach this line of jurisprudence as it was understood, and that a student would come out understanding the doctrine accurately, as it was articulated by the court, but they are missing something. It feels a little bit inaccurate to say that their goal is simply different, again, I'm generalizing, but those professors...
0:47:32.2 Michael: We know these are your friends and colleagues too, so... Colleagues anyway.
0:47:34.6 Rhiannon: Yeah.
[laughter]
0:47:36.9 Peter: Many of these professors were simply caught flat-footed by the modern court, and so I guess I'm not sure that you can sort of look at that in a vacuum.
0:47:46.5 Steve Vladeck: I think that's a fair critique. I don't mean to be dismissive of it. I guess I will just say, and I think this is where things get really complicated, law schools are really doing two very different things, and how much of each they're doing is very much a function of where they are in the pecking order. Right? So there's the vocational side of law school, which is, we are training you to be lawyers. Our goal is to get you out of the building so you can pass the Bar and so you can go be a practicing lawyer. And then there are the more sort of academic or graduate school law schools, where you're not gonna need us to pass the Bar, you're gonna pass the Bar just fine, we wanna teach you how to be legal thinkers, and how to be the next generation of legal leaders. And I think every school has their own sense of where they fall in that calibration. I think only really, maybe one school is all the way at the academic side of that conversation, which is why no one thinks I went to law school. That's why Justice Alito said he didn't learn any law in law school.
[laughter]
0:48:44.0 Steve Vladeck: And Peter, I think a lot of schools are at the other end. I think the question then is, if you are a constitutional law professor teaching a required course, and you teach at a school where Bar passage is the sine qua non, why the court turned sharply to the right in the 1970s is not gonna be on the Bar, versus why US versus O'Brien is an intermediate scrutiny case is. And so I guess I'm just not as quick to suggest that this is a failure on the part of the professors who teach that way, so much as it is just sort of an inevitable, if unfortunate consequence of just how legal education is structured.
0:49:17.5 Rhiannon: And a culture thing, right?
0:49:18.6 Steve Vladeck: And a cultural thing.
0:49:20.1 Rhiannon: It's a culture problem, I would say, at the elite schools, right?
0:49:23.3 Peter: Yeah, and to be clear, I'm not saying that any professor that teaches like that is a failure, but I am saying that my professors...
[laughter]
0:49:32.8 Peter: Specifically.
0:49:32.9 Michael: I actually liked my Con Law professor.
0:49:35.9 Steve Vladeck: So my Con Law professor was Jed Rubenfeld.
0:49:40.5 Michael: Oh, did you get sexually harassed?
[laughter]
0:49:44.1 Michael: Look, his suspension is a matter of public record.
0:49:49.3 Steve Vladeck: Fair enough. So the moment where he lost me was we were doing the US versus O'Brien, US versus O'Brien is about whether the government can prosecute people for mutilating and burning their draft cards, right? In the middle of Vietnam War in 1968, and the Warren Court upholds the Draft Card Mutilation statute even though it's pure political protest at that point. Right? And so, Professor Rubenfeld is doing his doctrinal threading, where he's trying to explain why this is wholly consistent with all of the Warren Court's other First Amendment jurisprudence. And I was this plucky, schmucky 21-year-old jerk who'd just got out of college. And so I raised my hand and I said, "I appreciate the effort, Professor Rubenfeld, but how can you explain O'Brien is anything other than it was the summer of 1968 and there were cities on fire?" And he latches into this whole thing about how there are some professors who want you to understand all of the cases in context. And he says, "But I'm not one of them."
[laughter]
0:50:46.7 Rhiannon: Like it's a good thing. Yeah.
0:50:48.0 Steve Vladeck: I was done with Con Law, and it's really good it was Pass/ Fail, 'cause I was done with Con Law. My students now, they ask me, "You must have loved your Con Law professor," I was like, "Ugh."
[laughter]
0:50:57.0 Steve Vladeck: So Peter, it's a long way of saying that I think there's a lot in what you're saying that's very true and very fair, and I just think that to Rhiannon's point, I think some of this is cultural in that like the culture of legal education is so obsessively geared toward Bar passage, that it's the culture of legal education itself, that actually doesn't reward the professors who wanna go out of their way to take a more critical, pragmatic, institutional approach to these courses, and why I think it's easier for people like me to do it, relatively up the totem pole, at schools like UT versus say, really good, but sort of more vocational-oriented law schools elsewhere in Texas.
0:51:42.5 Michael: I also think there's maybe a cultural thing where there's a certain level of prestige that like either professors or schools get from perceived association with the court, right? And so an institutional approach almost seems like it's tarnishing that prestige, right?
0:51:57.7 Steve Vladeck: I mean, this goes to the New York Times story about George Mason and Notre Dame, right? And just sort of what kind of relationship the academy ought to have with the court.
0:52:06.6 Rhiannon: Exactly.
0:52:07.5 Michael: Yeah. That was one of the latest scandals we've learned about where these universities were being used to effectively launder right-wing money to the justices in the form of professorships and study abroad, speaking gigs and things like that.
0:52:19.3 Steve Vladeck: I mean, I'm in Texas, right? And the court for me is the Fifth Circuit or the Texas Supreme Court. And so, I spend a lot of time being very sharply critical of what both of those courts do. And yet, I also spend a lot of time trying to get my students clerkships on those courts. So even for me, and I'm not exactly bashful, it's a tight rope that the cultural structure of the profession requires us to walk.
0:52:43.6 Rhiannon: Yeah. I had a question prepared about exactly this, just like that tension in your experience, this is more personal about your career and your experience, in observing over the past few years, since your star has sort of risen certainly on Twitter and in other media spaces... Okay, so about a month ago, a federal judge referred to you in a written opinion as a law professor with a Twitter account. Yes. And you have the shirt.
[laughter]
0:53:10.7 Peter: It's also, I have to say, it was one of those insults that despite being innocuous in a vacuum feels devastating, as someone who's been called just a lawyer with a Twitter account, and you're sort of like, "Ah, shit, he got me."
[laughter]
0:53:25.3 Rhiannon: That was in a case... That was Judge Matthew Kaczmarek. He sits in Amarillo in the Northern District of Texas. The Justice Department had asked for the case to be transferred away from Judge Kaczmarek's court. And Kaczmarek ruled denying that request. And he was referring to an amicus brief, correct me if I'm wrong, that you submitted in a totally different case that was regarding judge shopping and exactly the problem the Justice Department was bringing up. He calls you a law professor with a Twitter account, to kind of dismiss I guess the incontrovertible data that you had collected. So I wonder if you could just talk about like, the three of us have like experienced in various ways, consequences of being on this podcast in our careers, right? So what's the balance that you strike? Law professor, legal advocate, you have argued in front of the Supreme Court...
0:54:16.5 Steve Vladeck: Probably never again at this rate.
0:54:19.6 Rhiannon: Yeah. And you are part of this legal media ecosystem now, legal commentator. What points of tension do you experience between a sort of legal persona and a legal practice?
0:54:30.5 Steve Vladeck: Again, I'm only gonna... I'm gonna have a totally crappy answer 'cause it's just mine.
[laughter]
0:54:34.1 Steve Vladeck: So there came a point, I did not use to be sort of very out politically, right? I mean, anyone who knew me knew my politics, but my Twitter account for the first, I don't know, five or six years that I had it, like, yeah, you could find threads of what I thought, but I was a nerd, right? And I was attacking everybody. And I was sort of just being a law professor on Twitter back when that was more innocuous. I guess I go back to what I said before about how important it is to just be yourself.
0:54:57.7 Rhiannon: Yeah.
0:55:00.8 Steve Vladeck: And for me, guys, like, I just, I can't look at what's happening and not be public about my criticisms, right? I just, I feel like I almost have an obligation to use whatever platform I have to say, these are the things that I think are wrong. And these are the things that I think are wrong, not just like I would have done them differently, but wrong, like unhealthy for the institution. And it's interesting because the Kacsmaryk episode is not the first time I've been sort of called out in that kind of weird way. Some folks were like, "Oh my gosh, you must feel like really awkward." I'm like, "I don't feel awkward. I feel awkward for him. I think I come out better in this exchange than he does." But it's just, it's weird that we're here.
0:55:42.8 Rhiannon: Right. Right.
0:55:44.5 Steve Vladeck: I mean, this is a problem for me with the book. Like, I think there are a lot of folks on the right who are gonna not even pick up the book 'cause they're gonna assume that, "Oh, well Vladeck wrote it, therefore... " And I just think that like, there's nothing you can do other than be who you are. And for me, that means, if I see something that I think is wrong, I'm gonna put it out there why I think it's wrong. I'm gonna post to Twitter stupid Excel spreadsheets that document like why I think it's wrong. And people are gonna be persuaded or they're not. But, the... I think it would be worse for me to feel cowed into sort of silence because I'm worried about whether my next cert petition will be granted. Right? Or because I'm worried about not getting invited back to the Fifth Circuit judicial conference next year.
0:56:26.7 Rhiannon: How do I get on the invite list, by the way?
[laughter]
0:56:28.6 Rhiannon: I'm just wondering, like, do I get an invitation? It's applied or...
[laughter]
0:56:35.4 Peter: Is this like a Bluesky situation? Can you give one every two weeks?
[laughter]
0:56:38.1 Rhiannon: Yeah. We'll wait for a code.
0:56:38.6 Steve Vladeck: It might be.
[laughter]
0:56:39.8 Steve Vladeck: Yeah. I wrote a piece for Slate about the Kacsmaryk thing. I had just had this exchange with a Fifth Circuit judge who will not be named, who I'd had this sort of series of emails back and forth with, at the end of which the judge basically said, it was meant I think as a bit of a put down, but like, "I hope you'll stop casting aspersions on my judicial colleagues." And I wrote back politely and I said, "I don't aim to cast aspersions on anybody. I aim to call out behavior that I believe is problematic. I actually try very hard to not accuse people of acting in bad faith. So much so that like, people often yell at me, like, 'Can't you just accept that they're bad faith actors?'" And like...
0:57:18.8 Michael: Yeah, I think I've probably said that to you on Twitter.
[laughter]
0:57:24.9 Steve Vladeck: I don't mind it, right?
0:57:25.4 Michael: Not in an antagonistic way, we're buddies. Come on, man.
0:57:28.8 Steve Vladeck: No.
[laughter]
0:57:31.0 Steve Vladeck: I mean, hey, I'm a New Yorker. Like this is how we roll.
[laughter]
0:57:34.9 Steve Vladeck: I don't mean to sort of derail the answer.
0:57:37.5 Rhiannon: No.
0:57:38.1 Steve Vladeck: To me the serious point here is that like I try to sort of hue the line between what sometimes might seem like very, very blunt criticisms of judges and justices who, I'll call out by name 'cause their names are on the opinions usually versus personal attacks. Like, you're never gonna see me calling a judge like, I don't know, stupid. Right? Or accusing them of like doing something for nefarious reasons unless there's like incontrovertible evidence of that. And do I think that my critics have any appreciation for how hard I try to walk that line?
[laughter]
0:58:08.7 Steve Vladeck: No, but that's their problem. All I can do is what I know. And so, if that means that my cert petitions now aren't gonna be granted, c'est la vie. Some things are more important than that.
0:58:19.7 Peter: The $10 million book advance.
[laughter]
0:58:25.7 Steve Vladeck: If only.
[laughter]
0:58:26.4 Steve Vladeck: To take the... I mean, the cert petition point, right? Like, I represented Steve Donziger in the Supreme Court in his attempt to get the court to take up his criminal contempt conviction. And there were more than a few folks who said like, "Hey, are you worried that because your name's on the petition that's gonna hurt his chances?" And I said like, "Listen, if the court finds an otherwise cert worthy case and denies 'cause I'm on the petition, like that's on them, I have a hard time believing that that's where we are." And indeed, like when the court denied cert, boo, we actually got a pretty good dissent from Gorsuch and Kavanaugh, right? Who I think would've been maybe two of the justices more inclined to be mean to me if they wanted to be mean to me. So I guess like, Rhiannon, for me it's just about being true to yourself, honoring whatever the lines are that you care about.
0:59:06.0 Steve Vladeck: And then if folks don't see the lines that you're drawing, then like, try to explain it to them. And if they don't get it, that's on them. But I say this from like the most comfortable position, right? I mean, here I am, a straight white male tenured Chair holding Professor at a public university. I mean, even Dan Patrick would have a hard time really coming after me if he wanted to.
0:59:28.1 Rhiannon: Right, [laughter], right, Yeah.
0:59:28.2 Steve Vladeck: So I'm mindful of the fact that like, it's actually very easy for me to say a lot of these things. But again, like you gotta be you, which means you also have to take advantage of what your personal circumstances allow you to take advantage of.
0:59:38.9 Rhiannon: That's right.
0:59:40.4 Michael: Yeah, I think sometimes it feels like 10 years wasted on some cowards. It's good. Like you said, this is what tenure is for is to be free and outspoken and...
0:59:50.6 Peter: For the Steve Vladecks and Amy Waxes of things.
[laughter]
0:59:54.2 Steve Vladeck: That is a sentence I'm gonna have a hard time with Peter. Man!
[laughter]
1:00:00.6 Peter: Such that they cannot be removed from their positions.
1:00:04.4 Michael: Amy Wax is a notorious virulent racist for our listeners at home.
1:00:10.6 Peter: Our listeners should know about Amy, my old professor.
1:00:13.8 Michael: Yeah, that's right.
1:00:14.8 Peter: That's the thing, Steve, is we can't relate at all to the idea of a federal judge calling us out and disparaging us publicly being potentially bad.
[laughter]
1:00:25.4 Michael: Right? I feel like popping the champagne if that happens.
1:00:25.4 Peter: That is nothing but good press in my world.
[laughter]
1:00:27.8 Peter: As someone without a real career.
[laughter]
1:00:31.7 Michael: Yeah.
1:00:31.8 Steve Vladeck: I realize we're past the point, but let me just say one last thing, which is...
1:00:36.0 Michael: Sure.
1:00:37.4 Steve Vladeck: I would've been a lot more troubled by Judge Kacsmaryk's response if it had been three pages of analysis about why I'm wrong.
1:00:42.2 Rhiannon: Right. Exactly. That's it. That's it. Period.
1:00:44.4 Steve Vladeck: And it's back to the whole like, when they start calling you names, like that's when you know you've done... You've accomplished something.
1:00:50.6 Rhiannon: Yeah, yeah.
1:00:51.7 Michael: Right.
1:00:52.3 Peter: Well, I don't want to get that on the record on 5-4 as a...
[laughter]
1:00:55.9 Michael: 'Cause we call it a lot of names.
1:00:58.8 Peter: As a podcast that throws around the occasional insults.
[laughter]
1:01:02.7 Michael: We occupy a different space in this whole...
1:01:07.4 Rhiannon: Right, right.
1:01:07.5 Michael: In this whole thing.
1:01:07.6 Rhiannon: Right. That's right.
1:01:07.4 Steve Vladeck: But guys, I mean, this is why, I mean, this is... I think you guys occupy an important space, right? And it's a space that needs to be occupied and I proudly have both my 5-4 and my Strict Scrutiny mugs, on my desk at work because I think there's... We should all live in peace.
1:01:21.0 Michael: Yeah. Agreed. Agreed.
1:01:23.2 Peter: True enough. We... That's something that we're very willing to say privately.
[laughter]
1:01:29.4 Michael: So I did want to loop back to reform before we finish up. So, earlier you mentioned that you are less concerned with the specifics of what Congress could do than just the act of getting involved in the shadow docket. And this is also something that I've said too, recently at events where I just think it's important for Congress to assert itself. That being said, a lot of people aren't really familiar with the history of congressional oversight of the federal courts. And I was hoping you could maybe give us some examples of how Congress has tried to bring the federal courts in general and the Supreme Court in specific to heel in the past.
1:02:12.4 Steve Vladeck: I appreciate that Michael because I'm actually in the midst of working on a newsletter post where I'm recounting some of these examples.
1:02:17.7 Michael: Oh. Awesome. Perfect.
1:02:19.5 Steve Vladeck: I mean, listen, a quick hit list, right? Of some of the things Congress has done to the Supreme Court. So in 1802, Congress made the Supreme Court's entire term disappear. That was an especially, a fancy magic trick.
[laughter]
1:02:32.4 Michael: That's awesome. Just no term, right?
[laughter]
1:02:34.6 Steve Vladeck: No, I mean, it's like the 1904 World Series didn't happen.
[laughter]
1:02:39.5 Steve Vladeck: Wow. I can't believe I just dragged that out of my... Okay.
[laughter]
1:02:44.1 Steve Vladeck: And it was this, super transparent, like, "Hey, court, we have the power and you don't statute," it was basically in April, the Jeffersonians passed the statute that moved the court's term from December to February and February had already passed.
[laughter]
1:03:00.7 Steve Vladeck: So like everyone understood what that meant. There are two examples where congress literally takes seats away from the Supreme Court, right? One in 1801 and one more familiar in 1866, right? For the first, gosh, 121 years that the court exists, Congress literally makes the justices go ride circuit.
1:03:17.4 Rhiannon: Yep.
1:03:18.1 Steve Vladeck: Which by fairly early on in that period served no purpose other than exerting a dominion over the court.
1:03:25.5 Michael: Yeah, humbling them. By riding circuit you mean they had to go sit as circuit like appellate judges, right?
1:03:32.0 Rhiannon: Yeah.
1:03:32.7 Steve Vladeck: They were the circuit court. Right? I mean there were no circuit judges and so the justices and the local district judge comprised the circuit, right? And these are before airplanes. I mean, this is horse and buggy stuff. Where for a long time actually the justice had to pay for all of their travel, even though it was like work travel.
1:03:49.3 Peter: Now, were any robber barons providing free horse and carriage travel to certain Supreme Court Justices?
[laughter]
1:04:00.9 Steve Vladeck: We may never know.
1:04:01.0 Michael: There's no ProPublica back then.
[laughter]
1:04:05.5 Steve Vladeck: One of my favorite titbits that you guys know, until 1935, the Supreme Court literally sits in the Capitol.
1:04:12.2 Rhiannon: Yes.
1:04:12.9 Michael: Yeah.
1:04:13.6 Steve Vladeck: Including in the basement of the Capitol for much of that period. Right? How do we feel about your institution? You're in the basement of our institution, right? That's power.
1:04:20.6 Rhiannon: You don't even get your own building.
1:04:22.2 Steve Vladeck: Budget-wise, the Supreme Court's budget used to be a laughing stock. There was no official reporter of decisions even until well after the Civil War. I mean, justices don't get pensions until after the Civil War and then the 1930s Congress halves them. Right? Poor Justice Holmes [laughter], the list goes on and on, there are all these contexts where congress asserted authority over the structure of the courts institution. And that's before we got to all the jurisdictional stuff. Right? Congress, for the first 101 years of the court's institution, all of its jurisdiction was mandatory. It had literally no control over which cases it heard. Right? Congress in some of those cases decides after oral argument to make the court's jurisdiction go away.
1:05:01.9 Peter: So they don't like where it headed?
[laughter]
1:05:03.9 Steve Vladeck: Right. No, ex parte McCardle. So ex parte McCardle was supposed to be this massive referendum on the legality of military reconstruction and they have oral argument in the Capitol where the people in the audience is Congress. And Congress is like, well, that didn't go well, and so they pass a bill. It's like about that case that you just heard, no.
1:05:25.1 Rhiannon: Right.
[laughter]
1:05:25.3 Rhiannon: Right, right. We're not doing that.
1:05:27.4 Steve Vladeck: So, I realize, like I've given you a whole bunch of examples, none of which postdate 1935. But that to me is just a point about sort of how we've gotten out of practice, not about what the Constitution allows.
1:05:37.7 Rhiannon: Yeah, there are so many examples and I think that's so important because we are also asked all the time, because I don't think law students are hearing it, like what can be done, right? Like what do we do? What does Congress do? What can the government do? What can we as law students do as practicing attorneys? All of that. And I think like to some extent coming of age as a law student or as a student in undergrad during a Trump presidency has like just limited the scope so much and really sort of darkened the imagination of so many people. And I just think it's so important that like all of these examples are still possible, right? Congress could do any of the above, a little bit of imagination and curiosity about what is possible. We could think of other things to do, right? Like the world is your oyster. It doesn't... You said this earlier, Steve, but like it's not inevitable. It doesn't have to be this way. It's about what you do with power when you have it.
1:06:32.1 Steve Vladeck: Yeah. And I mean, there's this remarkable line in the Chief Justice's letter to Senator Durbin where he says, even appearing before a congressional committee would raise separation of powers concerns. At the most general level of abstraction, I mean, that's true, but the separation of powers is a two-way street.
1:06:46.8 Rhiannon: Right, right.
1:06:47.2 Steve Vladeck: Especially for folks who are so outwardly wedded to originalism, the notion that the court's independence requires its unaccountability, it's un-answerability is so completely and comprehensively belied by the historical record, that it's almost silly.
1:07:04.1 Michael: That's what lifelong tenure is for. That's what it's for.
1:07:06.6 Steve Vladeck: Right. Let's assume just to sort of jump over one whole separate argument that good behavior really does mean life tenure. Even assuming that, so the constitution requires good behavior protection and requires no salary diminution. Well, actually I forgot one modern example. So in 1964, Congress gave itself and all of the federal judges a pay raise of $75,000 except for the Supreme Court. The Supreme Court got a pay raise of only $45,000.
[laughter]
1:07:32.7 Steve Vladeck: Because Congress was mad at the court for being too aggressive and liberal and stuff. That might sound silly, like they still got a pay raise. Right? But like, literally the only express things the Constitution prohibits is like removing them without impeachment and stopping payment of their salaries. I think the Constitution prohibits some other stuff. Like I actually do think there are constitutional limits on jurisdiction stripping, but could Congress go after the court's budget, other than the Justices' salaries? Absolutely.
1:08:00.6 Michael: Oh, yeah.
1:08:01.0 Rhiannon: There are levers. That's the point. There are so many levers.
1:08:05.2 Steve Vladeck: Yes. And this is the point that the book tries to make, right? Like the problem with the levers is not that the Constitution has stuck them. The problem with the levers is that the politics are stuck.
1:08:15.4 Rhiannon: Exactly.
1:08:15.5 Peter: One of our listeners once asked whether the Supreme Court Justices could be drafted into a war and just sent to the front lines.
[laughter]
1:08:25.6 Peter: And what we said was almost certainly not, but we appreciate the creative thinking.
[laughter]
1:08:34.1 Peter: I do think that the fact that I, we actually had... I had to, sort of think about, well, could that be done and why not? But I actually think that most people don't realize how many options Congress has. But short of drafting the Supreme Court Justices into a war, I guess Joe Biden in that case, which you can sort of put in the ideal scenario bucket from our perspective.
[laughter]
1:08:54.6 Steve Vladeck: I think this was a real failure of the Biden Supreme Court Reform Commission. And I talk about this a bit in the book, right? The universe of options available to Congress is remarkably broad and actually has tons of historical precedents. And the commission was so focused on the bright light, sort of headline grabbing stuff, expanding the court, term limits, mandatory ethics rules, right? Like all the sort of the hottest button of hottest button topics. And I just, I like to think that if the commission had said we're actually gonna start with all the lowest hanging fruit and just come at this from an institutional reform perspective, maybe it actually ends up with less of a milk toast assessment of reforms and maybe it actually is able to forge some consensus among its 36 members for what some of those reforms should have looked like.
1:09:41.6 Steve Vladeck: This is part of the story of the book is that like there's a lot of stuff about the current court that actually ought to bother people regardless of how they feel about the bottom lines of these cases. And that, the more that we treat the court as simply the sum of the merits docket, the more we're gonna be stuck in this permanent feedback loop where we're always sorted into our camps. Right? And where the liberals just think the court is totally lost and gone as an institution and the conservatives think it's perfectly hunky dory and there's no opportunity to build any consensus on things that have nothing to do with whether Dobbs is rightly decided.
1:10:15.2 Michael: That's a, I think a great point to end on.
1:10:18.1 Peter: Yeah.
1:10:20.1 Steve Vladeck: A suitably depressing place to stop.
[laughter]
1:10:20.9 Peter: Yeah. We wait until we're all very sad and have nothing more to say, 'cause we're so despondent.
1:10:29.3 Michael: And then we're like, that's it.
1:10:30.4 Peter: And then that's the perfect moment.
1:10:32.2 Rhiannon: That's what you get from 5-4, baby. Yeah. [laughter] Thank you Steve so much for coming on with us.
1:10:38.7 Michael: This was great. Thank you so much.
1:10:40.2 Peter: Thanks for coming on.
1:10:41.3 Steve Vladeck: No, you guys, this is a treat.
1:10:41.4 Rhiannon: Is there an actual release date for the book?
1:10:42.6 Steve Vladeck: Yeah, so the book drops May 16th.
1:10:45.6 Rhiannon: Yes.
1:10:46.2 Steve Vladeck: Although pre-orders are available obviously now, and then there's... We're doing a series of in-person events, so New York, San Francisco, Seattle, Austin and DC, and lots of details about that obviously on my Twitter page, while that's still a thing.
[laughter]
1:11:00.7 Rhiannon: You can always find him on Twitter, folks.
[laughter]
1:11:03.4 Steve Vladeck: Until you can't.
[laughter]
1:11:08.5 Rhiannon: Thanks so much.
1:11:08.6 Michael: Yeah, thank you Steve.
1:11:08.7 Steve Vladeck: Thank you guys.
[music]
1:11:12.9 Peter: All right folks. We're taking next week off and then we are coming back strong. United States v. O'Brien, Professor Vladeck just mentioned it, and fuck it, we're gonna do it. If you say the name of a case on our podcast, we will do it the next episode.
[laughter]
1:11:28.4 Rhiannon: Well, if you remind us that there's an interesting case about burning your draft card during the Vietnam War and the Supreme Court really fucked it up, then we're like, oh yeah, okay, we'll do it.
1:11:39.9 Michael: We'll do that.
[laughter]
1:11:41.5 Peter: Absolutely. This is how our creative process works. We're like, oh yeah, what about that one?
[laughter]
1:11:46.3 Rhiannon: That's right.
1:11:46.4 Peter: And we will of course be revealing for the first time ever, 5-4's official pod position on the Vietnam War.
1:11:56.9 Rhiannon: Stay tuned. Whoa.
[laughter]
1:12:00.1 Peter: Whoa. Yeah.
[laughter]
1:12:03.5 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod for premium and ad-free episodes, access to our Slack, special events, all sorts of shit. Subscribe to us on Apple, apple.co/fivefourpod if you don't mess with Patreon, we'll see you in a couple weeks.
1:12:27.2 Rhiannon: Bye.
1:12:27.9 Michael: Bye.
1:12:29.2 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our researcher is Jonathan Debrouwer. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks @chipsny, and our theme song is by Spatial Relations.
1:13:03.4 Michael: Who is it? Like Donald Sterling and Madman, like that's what the money is, that's what the life tenure is for, right? Like that's...
1:13:08.8 Peter: Donald Draper, but...
1:13:10.7 Michael: Was it Draper? I thought it was Sterling.
1:13:11.4 Steve Vladeck: Donald Sterling is a slightly different kind of...
1:13:15.5 Peter: Donald Sterling is...
1:13:16.8 Rhiannon: Former owner of...
1:13:17.0 Steve Vladeck: The former owner of the LA Clippers.
1:13:20.2 Michael: Right. I was thinking of Roger Sterling and...
[laughter]
1:13:21.1 Michael: Donald Draper. Yeah, getting them all confused.
1:13:22.5 Peter: Roger Sterling, Don Draper. Yeah.
1:13:25.3 Michael: Freudian slip.
[laughter]