Trust in the Supreme Court's addition is very low.

Our next guest says part of the reason is the rise of The Shadow Docket, where cases decided quickly without written opinions or oral arguments.

A professor traces how it is changing in his new book, and he joins Hari Sreenivasan to discuss.

HARI: Thank you for joining us.

Your book is titled "The Shadow Docket," what is a shadow docket?

GUEST: it's not much more than an umbrella term for most of what the U.S. Supreme Court does.

We tend to talk a lot about the merit docket, the 65 decisions the court hands down each term after cases have been argued, but in reality, that is just a small slice of the overall output of the Supreme Court.

The shadow docket was coined by a Chicago professor in 2015 to describe everything else the Supreme Court does, the unexplained orders that usually account for most of the Supreme Court's work.

That can often times be just as consequential and as impactful as the big, fancy decisions we tend to focus on in our public discussions.

HARI: Right, we forget the Supreme Court rejects most of the cases that come to it, there is a small fraction that they even choose to hear.

So as a refresher, how do these cases get to the Supreme Court before they go down either The Shadow Docket or the merit case route?

Stephen: The typical lawsuit gets to the Supreme Court at the very end of litigation, after years of back-and-forth in lower courts, and usually it is only at the very end that whoever lost in the last round will go to the U.S. Supreme Court and asked the justices to take up the appeal.

As you said, the justices can choose whether or not to take the place.

One of the themes in recent years is another type of border where even before we get to the point, before the case has made it all the way through, the party that lost sales the federal government had one of its policies and join, or someone challenging a state COVID measure might go to the Supreme Court early in the case and ask for something called emergency relief, asking the justices basically to freeze the status quo or to unfreeze the status quo while the rest of that litigation process plays out.

That is where we have seen a real uptick in the last five or six years in how often the justices are granting that kind of relief, in the impact of orders granted on that kind of relief and where those impacts have been felt by all of us, from federal vaccination mandates to state abortion ban s to Congressional District maps.

We have seen these orders reshape large swaths of American public policy.

Hari: I want to go through each of those policies.

A quote you wrote, "As The Shadow Docket has grown, the merit docket has shrunk, given the justices less time in which to conduct a review cases that presented real or conjured emergencies."

Let's talk about their frequency.

How often are these types of 1-sentence, 1-paragraph rulings happening?

Stephen: We're seeing them just about every week now.

We should distinguish between when the court's granting or denying review of appeal.

But of the emergency side we are seeing somewhere between 75 to 100 of these rulings each term.

We are seeing the court grant somewhere between 15-25 of these for term.

The court is not even taking 75-100 merit cases per term, the last few terms it has been around 60. .

The number of times we are seeing justices intervene through emergency applications is way up in both number and qualitative assessment from as recently as 10 years ago.

10 years ago maybe the justices would have intervened, 5, 6, seven times per term and those interventions would have almost all been in death penalty cases, where the emergency was a last-minute request to block an execution or to unblock an execution.

Now we are seeing these emergency requests on questions of statewide or federal policy, everything from the student loan program to the Title 42 immigration policy, so litigation measures.

Hari: So how long are these decisions, and what do they typically say?

What do they share about why they got to a particular decision?

Stephen: Usually, nothing.

That is the problem.

The typical disposition is something like, "The application for a stay presented to Justice Alito and it is granted."

That is it.

We might get concurrent or dissenting opinions, but it really is the exception that the court will write a majority opinion when it hands down one of these orders.

Historically that is not unusual .

20 years ago when all the court was doing through emergency applications was last-minute stays of execution.

I don't think there is a big clamor for the justices to provide lengthy explanations.

Now that these orders are having profound effect on the ground, the fact that we see the court intervening, often times and hundreds of pages of analysis from lower court judges and providing no explanation, I think it is a real part of the problem and it deprives all of us, the lower courts, the relevant government decision-makers and the public of any ability to assess whether justices ruled the way they did.

Hari: Justice Alito has pushed back on this idea in multiple ways, one of the quotes you have from him is, "The catchy and sinister term 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 way."

He officially does not like not just the phrasing, but the entire concept that the court is doing something untoward.

And you take almost an entire chapter to try to push back against that.

What is your evidence against what he is saying?

Stephen: The evidence is the decisions.

For example, one of justice Alito's responses to critiques, I have been critical of the fact that the court is treating some of these orders as precedential and yelling at lower courts that haven't followed unexplained orders, justice Alito denies they are doing that.

We can point to specific cases where it has happened.

What is going on here is that from Justice Alito's perspective , of the court is doing is what it had always done in the death penalty context, just in a slightly different context.

What that totally fails to acknowledge and feels to account for is why it is problematic that the court is not explaining itself, that we are not seeing rationale.

We are not even seeing the vote count.

We don't even know which justices are on which side in a lot of these contexts when the decision is having these downstream effects.

When the decision is affecting who is voted for for Congress, as we saw in the Congressional redistricting cases, a decision affecting whether or not immigration policy will be allowed to be enforced, when a decision is blocking California or New York COVID mitigation measures.

This is where the Alito critique fails to account for what the court is actually doing.

He is defending a strawman.

If you look at the whole body of these cases, which is what the book does, you see a far more troubling pattern not of conservatives versus liberals, but a court that just seems to be on beholden to any need to explain itself, even when these decisions are having such massive effects.

Hari: The fact you are also concerned about is this precedent-setting nature of these really unexplained decisions.

Tell the audience why that is important.

Stephen: To put it into plain terms why this matters if, you go back to why we as a polity give our power to unelected judges, it is because we expect them to act in a way that is judicious and judicial.

At the heart of judicial power, what separates judges from politicians and rogues is principled rationales.

The willingness to provide justifications for why the ruling one way or the other, the Supreme Court has oversight, our power comes from our ability to provide explanations.

When you don't have those explanations, are missing not only principles -- we might disagree with the principles the court is adopting in cases like Dobbs, or when it comes to abortion organs.

What is missing in the unsigned and unexplained orders is any sense that the justices are ruling the way they are because of fidelity to some legal rule, as opposed to because they want party a to win and party b to lose.

When we look at all of these cases in the aggregate, there is really seldom a coherent legal through-line that explains why in some cases the court rules one way, in some cases it was the other.

Often times the best predictor is whether the case has a partisan balance.

What it does, we have seen the court turned to rule against Republicans and favor -- the rule against Democrats and favor Republicans.

Hari: Is there an effect on when these unsigned decisions increased in volume, a partisan effect?

Stephen: There is certainly an alignment and correlation between the shift and the change in membership on the Supreme Court.

I think it is harder to prove causation, but we really see this pattern start to pick up in 2017 before there were any big changes in the court's composition.

It is with the confirmation of Justice Kavanaugh to replace Justice Kennedy, the confirmation of Justice Barrett to replace Justice Ginsburg, that is when we see it really accelerate.

Not because these are conservative as opposed to liberal justices.

I think it is because the moderating influence of having a justice like Justice Kennedy who was in the middle, was removed.

The court has found it more convenient to use these unsigned, unexplained orders.

Not necessarily intentionally, but in a way that has produced these significant, downstream effects.

Hari: When we think about these emergency applications, a lot of people will understand the idea of death penalty cases.

The Supreme Court had a finding plate in the 1970's about this.

What is that due to, to the context of where we are today?

Stephen: In response to the reinstitution of the death penalty in the 1970's, we see the court move towards resolving all remotely contentious emergency applications as a full court.

We see the court move away from having oral arguments on emergency applications, having extended --, writing opinions.

I think what got lost in history is that for 35 years, those moves, which I think are deeply problematic, were confined to the unique space of the death penalty so we didn't talk about it much, we did not notice it much.

.

We ask people who clerked on the Supreme Court in the 1970's and 1980's and the 90's, and what they remember is The Shadow Docket.

The move from 2017 onwards is, all of these pathologies that have come to mark how the Supreme Court handles last-minute applications in the death penalty context have become normalized into contexts that have nationwide policy locations.

Whether it is.

Donald Trump building his Border wall, whether it is about the attempt to ban access to Mifepristone on a nationwide basis.

Even if that move in the early 1980's was remotely justifiable in the death penalty context, it doesn't hold up once the Supreme Court is handing down orders in this contexts that are having such massive legal and practical impacts in the real world.

Hari: I know that Justice Alito is opposed to the idea.

Did you have a chance to speak to the other justices about this practice, or have they been making statements that you can cite on the record about how they feel about this?

Stephen: The best evidence we have is what they have been writing publicly.

Justice Kagan has been leading the criticisms of how the conservative majority has been using The Shadow Docket.

She has written I think four separate dissenting opinions in some of these cases where she has called out not just the result, but the procedural shortcuts that the majority was taking.

I think the most interesting figure here is Chief Justice John Roberts, who I think is deeply sympathetic to the results court is reaching in all of these cases.

He has been dissenting a lot with the Democratic appointed justices.

In the Texas abortion case, in the Alabama redistricting case, in the clean water case from April 2022.

In that last one, that clean water case, he actually joined Justice Kagan's dissenting opinion that accused the five other conservative justices of taking procedural shortcuts.

This is such an important point, because it really underscores why criticism of the court's behavior is not necessarily partisan.

You can be a conservative judge like John Roberts and still think that there is a right way for the Supreme Court to hand down these rulings, and a wrong way for the court to hand down these rulings, and I think the fact that Chief Justice Roberts has been so critical in such a telling part of this story.

Hari: So what is the check that exists on the Supreme Court, perhaps a check that we are not exercising today, that we used to find normal question mark these are lifetime-appointed justices.

At some point, there is a decreased confidence in how they are doing their jobs.

Stephen: This is I think where we are.

In that respect, the riser docket is a symptom of a broader disease.

This is where we also have to bring in all of these stories about justices' ethics and financial disclosures.

Historically, the principal check on the court was Congress.

Indeed until 1935, the Supreme Court sat in the Capitol.

Part of what has gotten us to where we are is that aggressively, and especially the last 35 years, Congress has basically taken its hands-off and has gotten out of the business of being part of this ongoing inter-branch dialogue about keeping the court in its lane.

So when John Roberts writes back to Illinois Senator Dick Durbin and says "I will not come and testify before the Senate Judiciary committee because of separation of powers concerns," that is a reflection of a very modern and not remotely historical view of the separation of powers.

Historically the court was part of this conversation, as a poster today where it seems completely above and oblivious to it.

Hari: What has happened to our public confidence in the Supreme Court the last few years?

Stephen: If you look at the survey out there, it is going down.

I think this is a bigger problem than the justices want to admit publicly.

It's not that the Supreme Court should be guided by public opinion polls and, it's not that the Supreme Court should do what the majority wants it to do.

But the Supreme Court does not have an army.

The reason why we as a polity follow the Supreme Court is because there is at least some substantial belief in the court's legitimacy as an institution.

The more that belief erodes, the more that we lose faith in the idea that the justices are exercising judicial power as opposed to political power, I think the more dangerous a slope we are on, because if we get to a point where there are large swaths of the population that refused to accept the legitimacy of decisions from the Supreme Court, then the Supreme Court at that point becomes almost a pointless institution, one that can't stand up when we need it to, to the majority.

That would be a huge problem, one that frankly justices should be at the front of the line in trying to avoid.

But from the perspective of the court as an overall institution, we see a bit more of a historical ebb and flow, that suggests that our current moment, however exasperating it might be, is not one from which we cannot recover.

What we need no is to have consensus that the court should be more accountable, that Congress ought to be more involved in the relationship with the court about its docket, that the justices should be committed to providing principled rationales for their decision even though we will not agree with them.

And finally, that justices should be less in the business of criticizing critics who are worried about the court, who are trying to save the court from itself.

That is why I think this is such an important moment for the court, but also one that has a lot of time, a lot of games still to be played.

Hari: Professor Stephen Vladeck, author of the book "The Shadow Docket."

Thank you for joining us.