What’s Up With SCOTUS? The Shadow Docket, Accountability, And Justice
Sep 5, 2023
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Guest Stephen Vladeck, a constitutional law expert, discusses the Supreme Court's lack of accountability and its use of the 'shadow docket.' The podcast also explores the complexities of execution procedures, the lack of explanation and accountability in rulings, and the power struggle between branches of government. Additionally, there are tips for navigating discovery challenges with third-party collaboration apps.
The US Supreme Court's lack of accountability and use of unsigned and unexplained orders on the 'shadow docket' raises concerns about its decision-making process and undermines its moral authority.
Understanding Chief Justice Taft's influence is crucial in comprehending the Supreme Court's current behavior, highlighting the need for reforms to restore balance and accountability.
Deep dives
Understanding the Current State of the US Supreme Court
The latest term of the US Supreme Court has raised concerns about the court's legitimacy and its conservative majority's impact on the rights of minority groups. Professor Stephen Bladick, an expert on federal courts and constitutional law, highlights the court's lack of accountability and unprecedented level of power. He argues that the court's behavior, including the use of unsigned and unexplained orders, raises questions about its decision-making process and undermines its moral authority. Bladick also discusses the historical development of the court's power and the influence of Chief Justice Taft. He calls for a broader understanding of the court's role and suggests that Congress should reclaim some control over the court to restore a healthier balance of power.
The Concept of the Shadow Docket
Professor Bladick's book, 'The Shadow Docket,' explores the Supreme Court's use of unsigned and unexplained orders, which are referred to as the shadow docket. These orders make up the majority of the court's output and often have significant impact. Bladick explains how the rise of these orders has allowed the court to be involved in divisive social and policy issues, deviating from its historical role. He emphasizes that the lack of explanations for these orders undermines the court's legitimacy and leads to concerns of partisanship and policy-driven decision-making.
Chief Justice Taft's Influence on the Supreme Court
Bladick discusses the important role played by Chief Justice Taft in shaping the Supreme Court's relationship with lower courts and other branches of government. Taft believed in granting the court discretion and autonomy, making it a constitutional court rather than just a court of appeals. He pushed for reforms that increased the court's control over its docket and resulted in a more independent and unaccountable judiciary. Bladick argues that understanding Taft's influence is crucial in comprehending the court's current behavior and the need for reforms to restore balance and accountability.
Potential Reforms and the Role of Congress
Bladick suggests that Congress has the power to enact reforms to address the Supreme Court's lack of accountability and unchecked power. He proposes various measures, such as expanding the court's docket, limiting its jurisdiction, and imposing ethical and financial disclosure requirements on the justices. Bladick emphasizes that these reforms are not meant to undermine judicial independence but to restore a healthier balance between the court and the other branches of government. He urges Congress to reassert its institutional authority to ensure greater transparency and accountability in the Supreme Court's decision-making process.
What’s up at the U.S. Supreme Court, which has rocked the legal world with a conservative majority rolling back rights the rights of minorities, including 2023 rulings against affirmative action for college admissions and affirming the rights of business owners to deny service to LGBTQ patrons based on religious beliefs.
Guest Stephen Vladeck is a professor of law, nationally recognized expert on constitutional law and the Supreme Court, and the author of the book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
The Supreme Court has been exposed in recent years as an institution unbound by checks and balances and appears unaccountable to anyone. The Court regularly shapes the American system of justice through a “shadow docket,” decisions and rules made apart from headline cases.
Are we witnessing a crisis in the judicial branch? Is this a Court that can do what it wants when it wants? What happens to ethics, accountability, improprieties?
Plus, tips about discovery and the potential pitfalls of third-party collaboration apps (such as Slack and Teams). Hear what rules apply, and which ones don’t.
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