The Supreme Court’s “Shadow Docket”

We the People

National Constitution Center

News, News Commentary, History

4.6 • 1.1K Ratings

🗓️ 7 October 2021

⏱️ 58 minutes

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Summary

Last week, Supreme Court Justice Samuel A. Alito gave a speech responding to criticism of the Supreme Court’s emergency docket levied by, among others, his fellow Justices Elena Kagan and Stephen Breyer. On this week’s episode, we explain what types of cases comprise the Court’s the emergency docket—sometimes referred to as the “shadow docket,” a term coined by scholar Will Baude—and whether the Court’s approach to emergency decision-making has changed in recent years, and why. Host Jeffrey Rosen is joined by law professors Jennifer Mascott of George Mason Law School and Stephen Vladeck of the University of Texas Law School, both of whom testified before the Senate Judiciary Committee at its hearing about the shadow docket this week. They illuminate current debates surrounding the shadow docket and detail some recent decisions that have drawn increased scrutiny to the Court’s emergency rulings, including in COVID-related cases, the Texas abortion case, and in challenges to some of President Trump’s immigration policies. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Transcript

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0:00.0	I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome
0:07.7	to We The People, a weekly show of constitutional debate.
0:11.3	The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase
0:16.7	awareness and understanding of the Constitution among the American people.
0:21.5	Last week Justice Alito delivered a speech defending the Supreme Court's so-called
0:26.4	shadow docket where it issues emergency orders and summary opinions.
0:30.7	But in a recent dissent in the Texas abortion case, Justice Kagan wrote,
0:35.0	the majority's decision is emblematic of too much of this court's shadow docket decision-making,
0:40.0	which every day becomes more unreasoned, inconsistent, and impossible to defend.
0:45.0	Here to illuminate the debate around the Shadow docket are two of America's leading Supreme Court experts and two of our greatest experts on the Shadow docket.
0:53.9	Steve Vladick holds the Charles Allen Wright chair
0:56.8	in federal courts at the University of Texas Law School.
0:59.4	He's the co-host of the National Security Law
1:01.7	Podcast and his CNN's lead Supreme Court analyst.
1:06.0	He also testified before the Senate Judiciary Committee on the Shadow Duckett and is currently
1:09.9	working on a book on the rise of the Shadow docket to be published in spring
1:14.8	2023. Steve, congrats on the book and welcome to We The People.
1:18.9	Thanks, Jeff. Great to be back with you.
1:20.5	And Jennifer Mascott is an assistant professor of law and co-executive director of the
1:24.9	C. Boyden-Grays Center for the study of the administrative state at the Antonin Scalia Law School.
1:30.5	She recently testified before the Senate Judiciary Committee about the Supreme Court's shadow docket as well.
1:36.0	Jen, it's wonderful to have you back on the show.
	...

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