Chair federal Court University of texas school of law. As work has been published in the new york times, the los angeless times. Has argued before the Supreme Court of feat in and of itself is Supreme Court analyst of 2013 and he lives in austin, texas from going to hand it over to them. [applause] okay, good evening, can you hear me okay . Great. Its great to be with you. Here in his own hometown. Its great to be here. I hit introduction of you but among many other things i did not know that was going to go that way either. The first thing i want to ask you is you sure you do not want to move this conversation to twitter spaces . [laughter] there isth still time. 20 minutes of silence as about right. I wouldy say this is already gone better than last night actually. The night is young. Are you sure you do not want to talk about ken paxton . Yes. S. [laughter] all right. If you have not already seen or read the book let me tell you it is terrific it lives up seat is extraordinary in the book. Its the right book for this moment when the Supreme Court is so much in the news and so much on our minds. We are going to talk a lot about the Supreme Court today but first lets talk aboutut the bok lets begin by defining our terms. You immediately in the book make a distinction the define the sink so we understand exactly or talking about. Sure. The word and must fill me with decisions the Supreme Court hands a down after oral argument after multiple rounds the court hands down today including one largely the clean water act. We think of the Supreme Court at least until recently but we tended to view as the Supreme Court the work of the Supreme Court. The shadow docket is a term coined by a chicago law professor in 2015, basically to describe Everything Else of the Supreme Court does. By volumeng it ends up being almost 99 of what the Supreme Courtoe does is not the merits t docket, but rather these unsigned, usually unexplained orders. And, youou know, most of those e banal. I dont think we would all be here on the thursday night if we were really upset the parties got more time to file a brief in the case. But one of wills insight the book tries to build upon if not shamefully exploit is that a lot of important stuff happens in these unsigned unexplained orders. Increasingly more and more important stuff happens through these unsigned add unexplained orders. So we who care about the Supreme Court whether professionally, personally, or both should be paying more attention to what happens in these inscrutable, often inaccessible rulings. So i was curious after reading the book about the will boat coining of this term. And i went back and read the paper that he wrote in which she coined the term and he explained what he talked about. What i was clearer on as a result is that he talked about two t things. We are talking to on the one hand orders and bowed says one of the problems which are the orders which are but knelt many times they lacked transparency. We have come to expect from the court they at least tell us this is the thinking we see signed opinions, all ofrs that. These orders not visible to us lack transparency. But then there are these reversals, right . Summary reversal set to become part of the practice of the courts. And that is more complicated. Can you talk about those please . Cocksure, i mean i guess the shortest way of describing it as even though we spend most of our time talking about the merits it dockets a. The merits it docket is the exception. It is unusual for the court to resolve a case by writing a 50 page decision. Until you get summary reversals over the court writes very, very short opinions. Reversing a lower Court Without oral argument, without the parties having a full opportunity to brief the case but that is what impels a will to write in 2015. But there are other orders that could produce pretty dramatic effects. Here in texas, right . It was an unsigned, mostly unexplained order it late at night on september 1, 2021 that basically cleared the way for sb8 for the six week apportionment to go into effect. It was an unsigned unexplained order just last month that actually kept in place tinationwide access, part of medication abortion. These orders can come in different shapes and sizes. The critical point that the book tries to influence you is there action the bulk of what the Supreme Court does. An increasingly their stuff happening in those orders thats a monumentally important in ways that we really had not until the case of publicly appreciate. Tht were talking about 1 . What weve seen all our lives is 1 of what this the visible part of the iceberg is teeny tiny. But theres whole submerged part. Well and that is perfect because it wasnt the visible part of the iceberg that sunk the titanic. It was the submerged part. Right. And and so. Right. The the the have i should have put that in the book of course. But. Right. But thats i mean that thats exactly the metaphor which is the book tries to do to different things. The first part is to say, hey the stuff below the surface is really important. Right . Lets all spend some time understanding it and developing it and figure out what it is. And then the second part, where i think they get into a little more trouble is when i said, oh, by the way, once we, look at whats happening beneath the surface the last five, six years, we see lots of problems. Look at the impact. The i want to just stay with boat for one more second and talk about concept of emergency relief when. People seek emergency relief that often results in a decision that comes through the door of the shadow docket. What constitutes an is really the point right its totally emergency is the point its totally subject to interpretation. Talk a bit about that. If you think about the flow of litigation before it gets to the Supreme Court hase gone through litigation, federal courts. Emergency relief is its going to take four years for the case toto get through the Supreme Court. What is the status quo going to be while that happens for now. Is it going to be by the trial . Judge that would vacate the limit is that going to be the law while it works its way through the court or is it going to beso frozen . Thats where we talk about the emergency relief but the judicial emergencies from the perspective of shortcircuited in the normal process. Because of the implications of early in the lawsuit going to or nota affect. In this book you layout along thee subject matter lines areaf the law where the shadow docket has been important and may be the one i want to start by asking his Capital Punishment as it relates to Capital Punishment in the shadow dockets but the part that moves the shadow docket if we think about in Texas Execution in some context the quintessential case for emergency relief. A prisoner on death row and to his or her challenges for the convictions or the sentence with the method of execution. Theres not going to be enough time. Historically that was the point. Ited also turns out it is the Supreme Courts reinstitution of the Death Penalty that precipitates how they handle all applications. If you had one of the supplications you would go to the socalled circuit judge, the one of the nine with the geographic responsibilities. Rightyo now that is justice ali. We will talk about alito or a little more as the night goes on. Yes, we will. But the circuit job is to basically ask for the proxy for the fullcourt and what that meant the circuit justice by themselves sometimes in the local court. That meant there was a modicum of transparency. No one would confuse the justice for some kind of broad pronouncement and that is the model and the concern about following that model in capital cases that pushes the courts in the 1980s to start remotely divisive emergency applications but because it is the fullCourt Without the argument, without the breathing and without an opinion that happens in the early 1980s. The 80s, 90s and 2,000 so it pushed the court to take the steps and we didnt tend toyo focus on the procedural moves because everything was unique to the Death Penaltys case that was over there and one of the things that happened the court starts taking the Death Penalty specific jim starts applying it to everything to the trump immigration policies and covid measures, the Congressional Redistricting so that now these procedural problems. s at the public is in the dark who decided, whos in agreement and unless you have a public dissent. Elena kegan lost it. We expected she would oppose the decision but largely this is the exception. As we know the vote in the case is 54 because we can do math and the four justices publicly dissented we could figure out but what is striking about the case is not just the dissent where she says at the end it is inconsistent. Of what she objected to she said this is out of sync completely in t conflict. She was going after the procedural. September 2021 is the end of a ten month period where the court had been more aggressive and active in intervening on the shadow docket of the applications. In those cases often times running over procedural obstacles and issues that now is the exact same 54 majority saying our hands are tied in these questions as though we can step in to protect them. In the way the only through line for the case not any sort of principle but the last thing to say about that is she disagrees with the conservatives. The data didnt say why but 54. One of the points that it helps to underscore his they are not strictly partisan is one of the most repeat players that criticized the majority have been the conservative chief justice through the dissent in the case who defended in the alabama redistricting case and april 2022 the dissent would say the same thing. I am john roberts. Ive not changed my strengths. Im sympathetic he sees the courts legitimacy and credibility is negatively impacted by these. And using the sort of emergency application is doing things the way they are supposed to be done with full throated deliberation. So incidentally is the religious liberty there seem to be a number of cases which the religious liberty matters are e decided in the shadow docket. One thing that i thought, and i knew when you said it but i didnt think about it before was a lot of this is trump year. I know that you say the shadow docket goes back to 1980 or 2010 2010in the biblical moment. What changed it wasnt just that it was the Trump Administration versus the Obama Administration its the Trump Administration took an aggressive approach to this particular procedural maneuver to seek the emergency relief than the Supreme Court that none of the predecessors on both parties had tried to slow this one data point across the 16 years of the administration, the government goes to the court eight times so once every other year. Seven of the decisions have noes public dissent so seven of the cases there is no obvious partisanl ideological balance like the government is saying help us out. So that is part of the course if you look at the average. Trump goes 41 times in four years and the justices acquiesce in 28 of the cases and almost all of the 28 the book tries really hard in chapter four to suggest the beginning of the recent shift the justices were not leading the charge. The charge is led by the Trump Justice Department but thereer were all these opportunities for the courts to push back and say this is and what these kind of applications are for. This isnt what we should be doing and instead they kept saying sure. How much of this is the court and how much of it is this court. You cant talk about the trumpap years without acknowledging during the four years he appointed it is the court because the four years. The way the courts operate, this isis you writing in the book the conservative majority is used to obscure procedural orders to shift the jurisprudence to the right. So is that, two parts to the question. Is that whats going on here . Trump appointed justices were open to the idea of the procedural trick being used and therefore this is the way it goes or am i missing something . The problem is we dont have the account her side of the argument. We dont know whether the majority of the democratic appointed justices. If there was something specific not about the conservative judicial philosophy, not about the conservative approaches to the constitutional interpretation but about these particular justices that meant that the brakes came on when brett replaces, one of the big things that happened is he is not merely as pendulum swinging as kennedy so the other conservatives can be more confident about what hes going to do and then when Justice Barrett replaces Justice Ginsburg between that is with the more liberal justices so i think part of it is who they are but i dont want to lose this point. Part of i it is to some of the outside of the book stuff the symptom of a broader disease which is how remarkably end in defensively unaccountable the Supreme Court is and that would be true regardless. So we might not be as troubled by the last of the accountability but every day of the unaccountability that wouldnt change the fact that it is in ways weve never seen before unaccountable to congress and problematic respects are not necessarily partisan. But i want to push you on this question of the court versus this court. At the ideological makeup of the court in favor of the liberal justices and they are doing the same thing is that a problem, do you write this book . How much of it is they are doing this and it sucks that they are doing it but the result from them doing it i really dont agree with. If it is the right question. Listen, i would still write this book. Would it be doing so well it would be published by an Academic Press in the University Bookstores and i think there are plenty of folks by the director of the bottom line and that is perfectly fine. Im not one of them. The book tries to point out examples and cases where the court reached what i thought wa the wrong bottom line but through the right process so the cdc moratorium case theres another policy that guides on the docket where in august, 2021 the court mixes the moratorium. There was transparency at least in the majority opinion. The Alabama Association of realtors, heres why we think eachie of those are satisfied. I disagree with however many justices interpreted the statute, the Public Service act that was the statutory basis for the moratorium, but they did it right. They provide a rationale. We know why it blocked the moratorium. Contractvy about with the vaccie mandate case but this is a case where the federal judge in texas blocked the Vaccine Mandate and the Supreme Court basically but the mandate back into effect without any explanation. I like that result. I think the military has the power to require to be imvaccinated but theres a realy important legal question whether the newfound interest in and expands provided the military forsi the 1980s era decision that this is the military gets deference even where the religious liberty is concerned. Is that why the Court Granted the case, was there a procedural problem . I think that is a case where theres the right result from my perspective, but the wrong process. Why cant they show their work every time . What is stopping them from doing it . Justice alito would say and has publicly said it is not a choice just as we are often writing against a deadline. Do you by that . I was about to get there. So, that is true but not in anywhere near the majority of the cases. So he can point to examples where the order was going to go into effect at midnight. The capital cases, the warrant says we have to 6 01. There are cases where thats true that the case where 11 58 p. M. , they missed the deadline by 23 hours and these other cases the navy seals Vaccine Mandate case, know there is no clock. Plus they have the ability they can issue what is called an administrative stay that is a temporary of three is to give them time to write so its not that they cant write or they dont have the means to buy themselves time to write. Just the court is not of the few that its undergo an obligation to write in these cases. But its such about a look and they know its about look when a decision like this is released without transparency at 11 58 at night. You couldnt make it look like you care about people, regardless your intentions were your work doing it that way and they dont seem to care at all about how they look. Roberts talks sometimes its really important in court. We have a duty to protect the institution. No, they dont seem to act that way at all. I think the question is which they are we talking about. Who is the villain here . Who is responsible . We having an answer you havent thought about this, who is the villain, who is responsible fr this . I think the real villain and this is too easy to say back to the court being unaccountable, theyve taken their hands off of any meaningful check in the function for the first 200 years of our history regularly called all of these to keep the line. Dont bother coming into dc we are not going to have it this year. The legality of reconstruction, no, go home. Before Congress Gives every federal judge a pay raise but gives the Supreme Court justices a very tiny pay raise because they were mad. Ri so there are those to keep the court fr