“The Shadow Docket” with Steve Vladeck

Why Is This Happening? The Chris Hayes Podcast

NBCNews

News, Nbcnews, Why Is This Happening?, The Chris Hayes Podcast, Chris Hayes, Politics, Government, Society & Culture, Msnbc, Withpod

4.6 • 8.9K Ratings

🗓️ 23 May 2023

⏱️ 54 minutes

🔗️ Recording | iTunes | RSS

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Summary

The Supreme Court has long had incredible authority to make decisions that affect millions of Americans. But in recent years, it has increasingly used its power to make stealth emergency decisions without public hearings or explanations. The cases that we often hear about on the high court’s so-called merits docket only represent about one percent of what the court decides. Since the mid-2010s, 99 percent of SCOTUS rulings, including ones increasingly related to consequential issues like abortion, immigration and COVID restrictions, have taken place on what some legal scholars have taken to calling “the shadow docket.” What does this obscure procedure mean for each of us? Steve Vladeck is the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law. He’s also author of a new book, “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” He joins WITHpod to discuss how we got to this moment, what the shadow docket means for the rule of law and strategies for ameliorating inconsistencies in the court’s process.

Transcript

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0:00.0	To me, the way we fix this problem is we actually build a consensus, a hopefully bipartisan consensus,
0:09.5	that the court as an institution is healthier when it's part of a meaningful, inter-branch
0:14.7	dynamic and dialogue and not when it is a looph to it, and that an independent court
0:19.3	doesn't meet an unaccountable court, or else you're just going to see more and more examples
0:23.9	of the justice is doing whatever the heck they want without regard to procedural norms
0:27.9	to principles of transparency, to even sort of broader concern about their eroding legitimacy.
0:37.4	Hello and welcome to Why is this happening with me, your host, Chris Hayes.
0:46.6	Well, if you follow the news closely, or even not that closely, or just, you know, sort of
0:51.8	osmatically get it being across your ear holes as you're making breakfast for your kids during
0:57.4	MPR, something that you hear a lot is about a judge somewhere, or a panel of judges, or sometimes
1:04.4	a Supreme Court issuing a ruling that does something immediately, or stops something from happening
1:11.0	immediately, or sometimes implements some whole new policy. This is particularly true in immigration
1:16.6	recently, and I honestly, I've been following this very closely and I'm utterly confused by it,
1:21.5	like it'll be like this federal judge says that title 42 has to go into effect, has to stay in
1:26.8	effect, and then it'll be like another federal judge says title 42 can't go into effect.
1:32.2	And it's like, wait a second, aren't those contradictory? Also, why does these individual judges,
1:37.1	why are they making immigration policy if the entire country? Like, how did this happen?
1:41.7	And who's going to resolve this? And then you'll hear the Supreme Court declined to block an
1:47.2	appellate court's stay of a district court's ruling of a temporary restraining order on an
1:52.7	injunction on MPR, and I'm like, whoa, whoa, whoa, wait, I feel like I'm back in logic class and
1:57.4	undergraduate. I'm like, not, not, not, not, not P is okay, so the knots line up, so then we're back,
2:04.2	okay, we're back to P. So there is a tremendous, and if you feel like there's a lot of this, and if
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