Charles allen wright chair in federal courts at the University Texas school of law. His work been published in the new york times, the Los Angeles Times and the slate. He has argued before the Supreme Court a feat in of itself and has been since Supreme Court analysts since 2013. And he lives in austin, texas. All right. So im going to hand it over to them. Okay. Good evening. Can you hear me . Okay. Great. Its very good to be with you. Steve vladeck, a hero in his own hometown. Absolutely. Great. Great to be here. I had injection of you, but among many other things i didnt know that was going to go that way either. So well just actually right into it. So the first thing i want to ask you, as im sure you dont want, to move this conversation to twitter spaces, but theres still time. I mean, i think, you know, 20 minutes of silence is about right. A book about unsigned, unexplained supreme decisions. Id say this already gone better than last night when actually the night is young. Are you sure you dont want to just talk about ken paxton. For . An hour. Yeah. Yeah. Okay. Id kind of like to talk about ken paxton. Right. So that if youve not already seen or read the book, let me tell you, its terrific. It lives up to its billing and more. Steve extraordinary. And the book is itself the right book for this moment when the Supreme Court is so much in the news and so much on our minds. Were going to talk a lot about the Supreme Court today in the context the book and not. But lets first talk about the book and lets begin by defining our terms, you immediately in the book make a distinction between merits docket and the shadow. Defined define those things so we understand exactly what were talking about. Sure. I mean so word i think most familiar with decisions that the Supreme Court hands down after argument after multiple rounds of the court, handed down three today, including one largely gutting the clean water act. And when we think of the Supreme Court thats, i think, at least until recently what we tended to view as the Supreme Court, the work of the supreme and the shadow docket. This is term that was coined by a chicago law professor then will both in 2015 basically to describe Everything Else that the supreme does by volume, it actually up being almost 99 of what the Supreme Court does, not the merits docket, but rather these unsigned usually unexplained orders and. Most of those are banal. I mean, i dont think wed all be here on a thursday if we were really upset. Parties got more time to file a brief a case. But one of the wills insights that the book tries to build upon not shamelessly exploited, is that a lot of important stuff happens in these unsigned, unexplained orders, more and more important stuff happens through these unsigned, unexplained orders. And so we who care about the Supreme Court, whether professionally person or both, should be paying more attention. What happens in these in able, often inaccessible rulings. So i was curious after reading the book about the will bode coining of this term, and i went back and read the paper that he wrote in, he coined the term and he explained what he talked about and what i was clearer on as a result was that were really talking about two things. Were talking about. On the one hand, orders and vote says that one of the problems with these orders, which as you say, are banal, many of the times but they lack transparency. Right. Weve come to expect. The court they at least tell us this is the thinking, see signed opinions, all that these orders not visible to us lack transparency. But then there were these reversals right summary reversals become part of the practice of of the court and thats more complicated. Can you talk about those please. Sure. I mean, so i guess the shortest way of describing it is even though we spend most of our talking about the merits docket, the merits docket is the exception. Its unusual for the court to resolve a case by writing a 50 page decision. Right. And so we get summary reversals. Are where the court writes very, very short opinions reverse the lower Court Without oral argument, without the parties having had a full opportunity to, break the case. Thats what impelled will write in 2015. Right. But there are other orders that could produce pretty dramatic effects here in texas. Right. It was an unsigned, mostly unexplained order late at night on september. 2021 that basically cleared the way for sb eight for the six week abortion ban to go into effect. It was an unsigned unexplained order just last month that actually kept in place access to mifepristone right part of medication, abortion. So these orders come in different shapes and sizes. The critical point that the book tries to basically introduce everyone to is, they are actually the bulk of what the Supreme Court does and increasingly their stuff in those orders. That is actually monu mentally important in ways we really had not until at least i think the case publicly appreciate. But whats extraordinary that for most of us who grew up paying some to the Supreme Court, not an expert like you, but at least educated folks who read the news, we would not that 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 subject interpretation. Talk bit about that. Sure. I mean, so if you think the sort of the flow of litigation right. A typical lawsuit before it gets to the Supreme Court has gone through years of litigation in lower state courts in texas courts, whatever and the supreme its fond of saying we are court of review, not first view. We go last emergency is counter to that emergency relief is hey its going to take four years for the myth of pristine to get all the way to the Supreme Court. What is the status quo going to be. Well, that happens for now for now, right. So is the status going to be that the first ruling by the trial in amarillo that would vacate the fda approves the myth . Is that going to the law . Well, this case works its way through the court, or is that ruling going to be frozen . Yeah, well, it works its way through the court. Thats sort of where we talk about emergency, not because those are all emergency is in the sort of colloquial, but because they are judicial emergencies from the perspective of short circuiting the normal process, seeking relief. That is extraordinary because of the implications of letting this early in lawsuit ruling go effect or not go into effect. Yeah. So this so this book you lay out a long sort of subject matter lines areas of the law where the shadow docket has been particularly important and one maybe the one that i want to start off by asking you about is Capital Punishment. The really as it relates to Capital Punishment, the shadow docket has been enormously important not just the doorstep. I mean, Capital Punishment. I think actually the the independent variable that really moves the shadow docket. So if you guys i mean, if we think about it, especially in a state like texas executions are in some the quintessential case for emergency relief, right . You have a state that sets an execution date. You have a prisoner on death row who is seeking to have full throated judicial review of his or her challenges to their conviction or their sentence or the method of execution. And theres not going to be enough time for the court to actually provide process before the execution. So historically, that was actually the classic trigger. It also turns out this is one of the things ive learned in researching and the book. It is the Supreme Courts reinstitution of the Death Penalty in 1976 that precipitates real shift in how the court handles all emergency. So in the old days, the norm was if you one of these applications, you would go to the circuit justice, the one of the nine justices, as with just wrapped up responsibility for your part of the country. Right now for us, thats alito. Alito, right. You guys like i wish i didnt know that. Well talk about alito, i think, a little more as the night goes on. Yes yes, we will. But but the personality is not supposed to matter. Circuit justice. His job was to basically act as a proxy for the full court. And what that meant in the old is the circuit justice would often hold oral argument by themselves, sometimes commandeering the nearest local courtroom. If they werent in d. C. , they would often write opinions by themselves. And this meant that there was actually a modicum of transparency where the parties had an to be heard, where there was some for decisions that intervening. Were not intervening and were no one would confuse a ruling by a single justice for some kind of broader pronouncement by the court. Right. And that was the model all the way up to 1980 . And its the Death Penalty and the the the courts of concern about that model in capital that pushes the court started in 1980 to start all remotely divisive emergency application was resolved by the full court but because its the full Court Without oral argument without full briefing and usually without an opinion and that happens in the early 1980s, you ask folks who worked on the Supreme Court in the 1980s, the nineties, the 2000 where yes, it was a shadow docket there. Yeah, it was the death docket. And so it was the death panels that really pushed the court to take the steps. We didnt tend to focus on the procedural moves because everyone assumed it was just unique to the Death Penalty space, that it was over there. Yeah. And one of the things that really happened starting in the mid 20 tens is the court starts taking what had been a Death Penalty approach and starts applying it to everything to obamas clean power to trump immigration policies, covid mitigation measures to, Congressional Redistricting so that now these procedures are all i would say you know sort, of problems become magnified exacerbated because theyre being applied in context much broader. So the public is completely in the dark as to who decided whos in agreement, whos in disagreement. You have an unsigned or a b, you have a public dissent like my memory of the abortion in case in texas that you alluded to is, that elena kagan lost her after after that term. That is after that decision and said this is crazy so i mean, the one that. But we only know i mean, we have suspected that she would have opposed the decision, but we knew it because we knew from her. But largely this is the exception yeah. So we know the vote in the case. We know it was 5 to 4 because we can do math. And so when four justices publicly dissent, we can figure out that that means didnt what . But whats striking about the case is not just the sort of fierceness of Justice Kagans dissent where she says at the end of every day the shadow docket becomes more inconsistent unreason and to defend. And so were clear about this what she objected to, what she said. This is out of sync with roe. So this is completely in conflict. Yeah. Although i actually i think that yes, that was one of her objections. Thats really more the breyer and sotomayor dissents in case she was really going after the procedural shortcuts because what she was reacting to was that the, you know, september 20, 21 is the end of a month period where the court had been more aggressive and more active in intervening in on the shadow docket through emergency applications to block all kinds of state laws in the covid context, where the court was repeatedly stepping in to block covid mitigation measures in new york, california, you might notice political valence of those two states, right and in those cases, oftentimes running roughshod over procedure obstacles over a procedural sort of issues that should have said, you know, hold your fire Supreme Court. Now, its the exact same five four majority saying. Oh, our hands are tied by this questions. And so cant step in to block to protect roes inconsistency that she was calling it in a way where the only sort of through line the valence is the partizan valence of the case not any sort of coherent neutral principle. But the last thing to say about that. So you guys might say, oh, Justice Kagan disagrees with the conservatives, hey, its a day that ends. And why. But 5 to 4 in the sba case, the fourth was chief Justice Roberts. And one of the points that i think really to underscore how the critique of the shadow docket are not at least strictly partizan is one of the most, you know, sort of one of the repeat players in criticizing the conservative majority has the conservative chief justice who dissented in the sbrt case, who dissented in the alabama redistricting case, who dissented a clean water case in april 2022, and his dissents are always saying the same thing. So, hey, im john roberts, right . I have not changed my stripes. I am absolutely sympathetic to where my conservative colleagues hes in institutionalist and he that the courts legitimacy credibility is impacted negatively by playing these games. Well, and by using the sort of the emergency mechanism as a way of doing things that are supposed to be done with full throated deliberation on the merits docket. So Capital Punishment is a through line in this book. So incident is religious liberty a through line . There are to be a number of cases in which religious matters are decided also through, the shadow docket. One thing that i thought i knew it when you said, but i didnt think about it before was a lot of this is trump era. I know that you say the shadow docket goes back to 1980 or that you say that 2010 is a Pivotal Moment in this. But really, its the last six years that this stuff is really accelerated. Yeah, and i think thats the sort of this is i started paying attention to the topic really in the summer of 2017 because what changed it wasnt that it was the Trump Administration versus the obama administration. It was that the Trump Administration, an aggressive approach to this particular nerdy procedural maneuver to seek an emergency relief in the supreme that none of its predecessors, both parties, had tried. So just data point across the 16 years of the George W Bush and administrations to slightly different president is right the government goes to the court for emergency relief eight times so once every year seven of those decisions have no public dissent. Right. So in seven of those cases, theres no obvious partizan or ideological balance. Its the federal government saying, hey, help us out. And, you know, thats par for the course. If you look at the historical average, trump goes to the court, 41 times in four years and. The end, the justices acquiesce. Justices grant relief in 28 of those cases. And in almost all of those 28, there dissent republican right. And so, you know, i think its its part of the book tries really hard in four to sort of suggest at least at the beginning of the recent shift, the justices were not leading the charge right. That the the charges really led by the trump justice department. But there were all these opportunities for the court to push back and say this is not what these kinds of applications are for. This is not what we should be doing in this context. And instead, the court has kept saying, sure, so how much of this is the court and how much of this is this court . You cannot talk about the trump years acknowledging that during his years as president , he appointed gorsuch. He appointed kavanaugh, he appointed barrett. The court looks the way the court does the composition. The court is the composition of the court, because of those four years, those things have had consequences, not only in terms of the outcome of decision, but also just in terms of the way the court operates. This is you writing in the book the courts new conservative majority has used obscure procedural orders to shift american jurisprudence to the right, said flatly. So is that two parts of two questions of this question . First is, is that whats going on here . Trump appointed justices were more open to the idea of this procedural trick being used and this is the way it goes, or am i missing something . So the problem is we dont the counter the counter side of, that argument. Right. We dont know whether a majority of democratic appointed in the same circumstance like justice garland, for instance, would behave the same. So i think two Different Things are true and. I think its worth stressing both points. The first is i do think that there is something specific not about conservative judicial, not about concern of methodological approaches to constitutional, but about these particular justices. That meant that brakes came off as they appointed. Right. That