Leah, Kate, and Melissa talk to Steve Vladeck, author of 'The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic', about the Supreme Court's secretive shadow docket and its impact on issues like LGBTQ+ rights, abortion, and COVID orders. They discuss the historical development of the shadow docket, the role of William Howard Taft in shaping it, and incidents involving Supreme Court justices. The chapter also mentions the podcast's sponsors and raises concerns about the court's inconsistent behavior on the shadow docket.
The Supreme Court's use of the shadow docket allows for discreet changes in the law and expansion of its power and influence.
The Trump administration leveraged the shadow docket to implement policies like the federal death penalty and immigration measures, often bypassing legal challenges and lower court rulings.
The opacity and lack of detailed explanations in shadow docket orders raise concerns about transparency, accountability, and the court's ability to make policy without establishing legal precedent.
Deep dives
The Evolution of the Shadow Docket
The book discusses the historical development of the Supreme Court's docket, particularly the role played by William Howard Taft in reshaping the court's authority. Taft advocated for certiorari, granting the court the power to choose which cases to hear, and pushed for other reforms to enhance the court's control and influence. This transformation from a court of appeals to a constitutional court gave the justices tremendous discretion in shaping constitutional rules and principles.
The Rise of the Shadow Docket under the Trump Administration
The book explores how the shadow docket proliferated during the Trump administration, coinciding with an ideological shift to the right on the court. The Trump administration utilized the shadow docket to push policies such as the federal death penalty and immigration measures, often obtaining emergency orders that allowed the implementation of these policies despite legal challenges and lower court rulings. The lack of transparency and minimal explanation in these orders obscured the ideological nature of the court's decisions.
Implications of the Shadow Docket and the Need for Transparency
The shadow docket has significant implications for understanding the current Supreme Court and its exercise of power. The focus on the merits docket alone distorts the true ideological shift on the court, as the shadow docket reveals a more consistently conservative alignment. The use of emergency orders without detailed explanations enables the court to make policy without establishing legal precedent, raising concerns about transparency and accountability. The book highlights the importance of considering the shadow docket to fully comprehend the court's actions and the need for greater transparency in its decision-making process.
The Rise of the Shadow Docket
The podcast explores the concept and evolution of the shadow docket in the Supreme Court. It discusses how the court's use of these stealth rulings on the shadow docket has grown over time and highlights the lack of transparency, accountability, and public scrutiny in these decisions. The episode examines the origins of the shadow docket and its impact on key legal issues, such as capital punishment and election cases. It raises concerns about the court making significant legal decisions without full briefing, oral arguments, or public explanations, and how this undermines democratic principles and the legitimacy of the court's actions.
Partisan Politics and the Shadow Docket
This part of the podcast focuses on the court's use of the shadow docket in election cases and its potential partisan implications. It discusses how the court's actions on the shadow docket in various election-related cases have raised concerns about undermining democracy and favoring the Republican party. The episode highlights the Purcell principle, which guides the court's approach to election-related injunctions, but argues that its application lacks clear guidelines and can be used to block or freeze lower court decisions that facilitate voter access. The discussion emphasizes the need for judicial reforms and a restoration of a healthy inner branch balance to address the issues with the shadow docket.
