Transcripts For CSPAN2 Stephen 20240705

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 when Brett Kavanaugh replaces Anthony Kennedy in 2018, you know, one of the big things that happens is kavanaugh is not nearly as sort of pendulum swing in as kennedy. Right. And so, you know, the other conservatives can be a little more confident about what hes going to do. And then when Justice Barrett replaces justice ginsburg, that marginalizes john who between 2018, 2020 had actually been the speed brake on the shadow docket. He actually is with the more liberal justices in a much less case. So i think part of it is, who they are, but i dont want i dont want to lose this point. Part of it is that i think the shadow docket is also and this gets to some of the outside of the book stuff. Yeah a symptom of a broader disease which just how remarkably and unaccountable the current Supreme Court is and that would be true regardless who is sitting on it. Right. And so we might not be as troubled by lack of accountability or we have justices who are not reminding every day of the unaccountable. But that wouldnt change the fact that it is in ways weve never seen before, unaccountable to congress in problematic respects that are not partizan or okay, but i want to push you on this question of the court versus this court. Lets say fanfiction, the ideological makeup of the court is six three in favor of the justices and not the conservative. And theyre doing the same thing, but theyre doing it in ways that you, steve, that agree with is a problem. Do you write book like how much of this is theyre doing and it sucks that theyre doing it and the decisions that result from them doing it. I really dont agree thats it. Yeah, its the right question. So listen i, i would still write this book. Would it be doing well would be like the shadow docket and the shadow docket. I mean it would be it would be published by an academic press. Right. And do doing sit in University Bookstores and and my assignment would be signing it for myself. So i think there are plenty of folks who i think are going to view the court the by the direction of the bottom lines. And thats perfectly fine. Im not one of them. Right . So the book tries hard to point out examples of, cases where i think the court reached what i thought was the wrong bottom line, but through the right process, the, the cdc Eviction Moratorium case, heres another that dies on the shadow docket where in august 2021, the court nixes, the cdc Eviction Moratorium. But they wrote an opinion. I mean there is a lot transparency thats right there was an eight or nine page majority opinion that says, hey, heres the relief. The Alabama Association realtors is asking for. Right. Heres why we think each the prongs of that relief is satisfied. I disagree with how the majority of however many justices interpreted the statute, the Public Health service act, which was the the statutory basis for the Eviction Moratorium. But they did it right right. They provided a rationale. We know why it blocked the Eviction Moratorium. Contrast that with, for example the navy seals Vaccine Mandate case. Right. This was a case where a federal judge here in texas blocked covid Vaccine Mandate for navy seals. The fifth circuit did, a fifth circuit, right. And and it went to this and the Supreme Court on froze the District Court injunction basically put mandate back into effect without any explanation. And i you know i like that result i think military has the power to require especially seals to be vaccinated but theres a really important legal question lurking in that case about the courts newfound interest in expansive protections of religious liberty apply to the military. In contrast to a 1980s era Supreme Court decision that says the military gets deference even where religious liberty is concerned is why the court did not granted relief in that case. Was there a procedural problem . And so i actually think that is a case where the theres the right result from my perspective, but the wrong process. Why cant they show their work every like what is stopping them from doing it . Its a choice. I mean, it is it is. Justice alito would say and has publicly said it is not a choice. He says, you know, we are often right in against a deadline and that is, do you buy that . So i was about to get there so that is true in a non zero set of cases, but not true in anywhere close to a majority of these. Right. So there are right he can point to examples of i mean the mifepristone case. Right. The cosmetics order was going to go effect at midnight. Right. They had to all day in the capital cases. Right. The execution warrant says know were going to execute you at 601 day. Right. So there are cases where true. But the sba case where the decision go down at 11 58 p. M. , no reason they missed the by 23 hours. Right. And you know, other cases, the navy seals vaccine. No, theres no theres no one in clock. Plus they have ability i mean, lets get a nerdy youre right they can issue called an administrative stay, which is just a temporary freeze to give them time to write so. Its not that they cant write. Its not that they dont have the means to buy themselves time to write its that theyre just the court not of the view that its under an obligation to write in these cases its such a bad look and know its a bad look when decision like the sba decision is released without. At 1158 at night when. I mean you couldnt make it look like you care about people regard your intentions or your work less than doing it that way and they dont seem to care at all about how they look. So. Roberts talked sometimes. Why . Oh, its really important. The court you know, we dont, you know, we have a duty to the institution. No, they dont seem to act that way at that. They care about other court seems so i think, i think the question is which theyre, which they are we talking about. Okay so so okay then let me ask the question of wait. Who the villain here . I mean, who is responsible . I want i mean, you know, you have an you have a thought about it at least. Who is villain whos responsible for this, that. Well, i mean, i think this is going to jump way far ahead. The real villain and is too easy to say. But im saying anyway, as congress. Right. But because go on. Be right back to the sort the court being unaccountable. Its congress that taken its hands off of any checking function congress that for the first 200 years of our history, regularly pulled all of these levers to keep the court in line. Congress tells the court in 1802, dont coming in dc, were not going to have a term this year. Congress the court in 1868. Oh, you think youre to decide the legality of reconstruction . No. Go home. 1964 Congress Gives every federal judge pay raise, but gives the supreme justices a very like middle, tiny pay raise because they were mad at them. Right. So there are levers congress has pulled historically to keep the court from veering into, you know, deeply problematic procedural holes that is not pulling. So you say that if the if if congress wanted to to effectively end the use of the shadow docket, congress could do it. Yeah, i yes, but i want to stress because i think this a point that Justice Alito dines out on that isnt actually an accurate summary of the critique. The problem is not the shadow docket. Shadows are not inherently nefarious. Right. The problem is how court is using it, and so does the court need some mechanism for dealing with emergency applications. Absolutely. Are there going to be outlier district judges in, you know, that sound like texas, that hand down the cities that sound like amarillo, right. That hand down rulings that are going to precipitate these of. So the problem is not the shadow docket. The problem is exactly what justice said in the case. Its that when the decisions are unreasonably right, when theyre inconsistent right, you get this problem of depriving the court of the principle the mechanism by which its supposed persuade us that its acting judicially as opposed to politically. Right. Historically, the court says our comes from our ability to principled justifications for our decision making. We dont expect you to agree with our principles we expect you to agree that they are principles and when the court is not even providing principles and when the best sort of through line that explains why party a is winning and party b is losing is that party is a red state and party b is a democratic president. Thats we get into. Thats the problem of the shadow when it appears to be like a parent to a small child. The answer is i said so with no explanation or justification then it does have the effect of undermining faith and confidence. Especially, especially theres no obvious reason why the parent so here and not there. Yeah, so weve got maybe 10 minutes or so before i want to go to questions the audience. I know there will be a lot, but i want to move the conversation off of this really excellent book. I want to talk about clarence thomas. Hes on the book. Well, i know hes in the book, but i want to talk about something not really in the book, because the reporting on this happened after the book was turned in and, the galleys were in hand. The inside edition, the propublica excellent reporting, the on the conflicts that they identified in the gifts provided to i would say alleged, except it doesnt seem to have been in a dispute about this by the texas billionaire harlan crowe of dallas Justice Thomas over the years what you think about the reporting when you it what did you make of as it relates to the business of court and should it shake further our faith and confidence in the judiciary . Small questions very, very questions with no significance at all. Right. So let me start let me start small and go to sort of the bit. Right. So i think the small point thats worth saying because it absolutely is deeply consistent with the project of the book is i think says a lot that it was propublica, right . Like, why isnt this the Court Reporter for the new york times, the Washington Post . Like, why . Why does it take this, you know, excellent but sort of not necessarily classically Mainstream Media organization to do the legwork here . I think thats a reflection of this broader disease of sort of thinking about the court, a function of the sum total of its merits. Right. That that the Supreme Court corps, such as it is, reports the court, as the court holds itself out to be right in ways that we wouldnt think, you know, white house reporters would report on the white house or congressional and report on congress. So this is not just a failure of ethics. Its a failure of investigative journalism. Well, at least its i mean, yes, i think its also a reflection on the broader problem that the book tries to start pulling us back from, which is how we talk about the court and that starts with the the people who are the front lines of talking about the to the public, which is the courts press corps. And i say this as someone who is part of that body right now, i im, you know, cnn Supreme Court analyst. So its my fault. A newsletter you write about the court, right. So your but so thats the sort of the the low hanging fruit, right . It is. And Dahlia Lithwick wrote a great piece about this for slate last week. Like we should they should not conversation we seem to have every ten years about why we cover the court the way we do with regard to the specific stuff mean i wrote about, you know, the resignation of Justice Fortas in 1969 and fortas resigned. I dont think this is remotely a lot less right than what justice the propublica reporting says happened in the Justice Thomas case. But one big source of the money fortas got in a lot of trouble for he already paid back before it even became a public scandal. Why did fortas resign anyway . Because earl warren went to him and said, you have to resign for the good of the court. Right . And if you dont resign, nixon is going to go after congress is going to go after you. Douglas might next right like that. That 1969, this a very different political moment. The thing will say is that i think the other where the current ethics kerfuffles dovetail with what im to do in the book is its the same disease from the perspective of Congress Just abdicating and in responsibility and so forth. When john roberts is invited to testify by the senator durbin, by the chair of judiciary committee, roberts writes back and actually it raise separation of powers concerns and interfere with judicial independence. Were i to voluntarily come and testify before the judiciary committee. And hes not that up like he genuinely believes that because we live in an era where the kind congressional involvement and in the court that characterized the first hundred and 5075 years doesnt exist anymore. But that is profoundly a historic. And so, you know the notion that congress couldnt exercise some meaningful mechanism here is just wholly belied by practices. The obstacle is not the constitution. The obstacle is not separation of powers. The obstacles are current politics. Yeah, you said around time that the thomas stuff broke. You wrote on twitter an independent judiciary does not mean it has never been on an judiciary. Its never been an unaccountable judiciary. This is really about accountability at this point and whether its Justice Roberts not appearing voluntarily or this week, harlan crow telling durbin through his lawyer, basically take a long walk off a short pier right. I am not to provide you with what you asked for in the name of the public being better aware of what actually went on here this really just about accountability at this point, not even about the work of the court. Its about accountability and its accountability. Its also about i mean, if we if we can tie it back to the constitution for a second, what really, really struck me about the letter that i think it was jones day it was. It was it was harlan crows lawyer i wrote to durbin right . So i was getting done right there. What really struck me about that letter was the suggestion that congress no legitimate purpose in investigating anything crow might or might not have given the Justice Thomas and my response, that is actually the most important textual check on the supreme in the constitution is congresss express power to impeach Supreme Court justices. Like maybe we dont all agree that that the the stories that the revelations and the propublica reporting gives rise to an impeachable offense. But the notion that congress lacks the authority to decide that question right and to actually investigate whether individual justices have engaged in impeach liable conduct if is both like horrifying to me as a separation of powers person. But such like perfect of the moment were in and as a civics textbook person, i think texas civics textbook, no, just civics textbooks. Its going to make a generic the part that is striking to me is that in the Case Congress has made the decision to begin articles of impeachment. There was a mechanism on the other side of that, regardless of how that came out, called an election in which the person in question be held accountable. If these are lifetime appointees, there is no mechanism for all of us to to in at election time on a clarence and this and this and goes back to the the the tweet of mine you mentioned i guess one person read it right i should have warned my professor a twitter account t shirt you are the king of law school twitter. Theres no question about that. We know that. I dont know that, folks, but over there so im not looking that way. You know, bobby is remarkably on twitter that much you are online. He is not my tweets are not confused with official statements at the university of texas complete of exactly. I am speaking i am speaking an individual. You say every time get there. I think its implied. So again, the point is this is i mean its we teach this in constitutional law classes, but i think its gotten on modern eyes in years, which is, yes, broke from the british practice by creating an independ judiciary and the independence, a critically important part of the constitutional. But as hamilton rights famously in federal 78. Right. The you know, the court is supposed to be the least dangerous branch. It doesnt have an army, it doesnt have force or will only has judgment. And its judgments depend upon some modicum of support for enforcement. And the notion that its there, that thats sort of the emerging argument, especially on the right, that its somehow illegitimate it for that very source, Popular Support to exercise its power to be critical, the court and to exert leverage. The court is so fundamentally to that understanding and to that balance that the constitution tries to strike. I you would acknowledge that theres something sort of delicious about this controversy being thomas as opposed to one of the other justices, simply because thomas has been the least visible, accountable audible justice like court, like thomas has a particular conundrum for anybody watching the court because hes of done everything he can to exempt himself from any form of scrutin yeah i guess i take point i would just say that you know can point to less serious but still probable emphatic misreporting by justice sotomayor. Right by justice jackson. Right. You can point to book deals multimillion dollar book deals that justices get. And we dont write that i think are problematic regardless of whether the author is someone whose book im going to like or somebody whose book im going to throw out the window, right . So again, like this is im you know, i am i mean, battered me on like i am, i think, quite visibly identified as a progressive. But im trying tell a story that should not be sort of specific to, you know, whos in power and whos not. The real story here is an institutional one about how should and ought to be in congresss interests to rein in the court across a lot. I mean, just one last data point. This is probably the one that that that you might have, you know, never thought youd think about before tonight of the court this term. We thought we start the merits docket. The court this term is probably going to side maybe 57 cases on the merits docket. That is crazy and low historically. Its going to be the fourth term in a row that the courts 60 before 2019, the last time that the last one had ever been below 50 with 1864. Now you might be saying im fine with this court deciding less, but but not deciding. But theyre not deciding unless theyre just deciding a date sight. Well, and theyre deciding a different cases. Right. And so you know why why has that happened . Why has the courts docket shrunk . Because no one is telling the justices which cases to take even, though, for 101 years, the court had no discretion over its docket, even for 135 years, it had only a little discretion over its docket, even until 1988, it still only had partial right. Congress used to tell the court which cases to hear, and that was part of the story of how the branches pushed against each other. I want to note, while yes identified or you identify yourself on social media as progressive, let us note that the person who coined the phrase the shadow docket will vote was a conservative, which i get in trouble for because people im shamelessly taking advantage of that fact. Well, but but he was troubled by it when coined the phrase in 2015. I mean, to me this is not about left or right, but this is about transparency and accountability. He or yolo and i think thats the the challenge for people like. Right. And the challenge that the tries to surmount is to tell a story about why every should be bothered by the institution and the behavior of the court right. Even if you are more favorable to the outcomes thats emerging that behavior than perhaps i am to be outcome agnostic. But but but you need to be procedure devout. Yes. And in the end. All right. So well go to questions now. We have microphone. Hands up. Were to take as many as time permit. Well try to. Be cruel, but fair. So why dont we take one right here in the front and then well go to the back. Well come back front. Well kind of go side to side as well. Promise and you mentioned it a moment ago with the propublica revelations. But im curious, you talk a couple of times in the book about, the role of the press in all of this. I think a particularly compelling example you make is the sort of media consensus about. Justice barretts first term of not much has changed and you point out a sort of stark contrast. Justice barretts voting on the merits docket versus the shadow docket. And im just curious to hear more about i guess its hard not to feel myself, like the media has abdicated as much responsibility congress has, and how i mean, where do they fit in all of this . Can you say more that. Sure. So do you guys all hear the question right. So thats thats its something something hard on the media. No no, no. Of the so the the short version is, you know, i think the media i do keep some blame on the press corps, but keep in mind right. The press corps has to cover the court. And part of the problem here is the Court Conditions access in ways that decent set of eyes, folks who are visibly in the press corps from defying those conventions. Right. So the way comes out of the court is incredibly narrowly circumscribed. There is one Public Information office, not one per justice. Right. The pew has this remarkably sort of will tell you when we feel like it approach, think to, you know, to its relationship the with the press corps. So i its theres a theres a theres the court is more part of the story and the press because the court itself demands that its corps comply with these nor is the pio vindictive to the point that a journalist got a little bit too aggressive in covering the court that that person might be denied access. So if a hard pass holder probably not. If theyre not, maybe right. And again, the pio is not making policy. Pio is doing what the justices are telling her to do. Right. Right. Mean. So part of the issue here is that i think, you know, the court itself is just so not used to being treated like the other institutions in washington because of the notion that the court is above the fray and the that we come to accept and appreciate that the court is actually part of the fray, the more maybe the court ought to act like its part of the fray from, you know, from that kind of media perspective as. Well, i mean, just one little point on this, right . The the court has finally reopened to the public fully right this term in response to covid. But what like good news, theyre still Live Streaming oral bad news. They wont live stream opinion announcements. Right. Which means the actual audio of justices handing down the rulings the things that matter as opposed to the weird exchanges in oral arguments where Justice Breyer when hes still on the court would go on a tangent about. Jay oglethorpe, second cousin right the things that matter if you want to actually to the other to be in the courtroom or have to wait ten months until the audio post right, this is an institution that is just allergic. What we would think of as basic transparency. And so i wouldnt put all the blame on the press corps. I think they have a tough job. Quickly, before we go to the questions, but how did the leak of the Dobbs Decision by politico, which somehow did not get the pulitzer, dont understand how did that change the relationship between the media and the court made it even even messier. Right. Even more tight lipped. I mean, i think that our sources that dried up in the aftermath of that leak, i think are folks inside the building who have become much more paranoid about to anyone outside the building. Right. And so if anything, it has compli cated the story, right. As opposed to moving toward transparency. Right. Lets take one in the back and then were going to come over here. Hi, steve. How are you. Hey, thanks so much for this. So my question relates to congressional oversight. Since congress hasnt exercised its power to legislate scotus in so long. Whats it likelihood that the Supreme Court would then that legislation and say its unconstitutional . Maybe you talk about in the book. I just i brought it tonight. No, its its its its a great question. I mean, the short version is i think it depends on what the legislation is. And so if it was legislation doing things that like 150 years ago, congress did all the time. I think even this court would have a really hard time striking it down. So if its, for example, right, like one of the ways congress exerted power over the court in the 19th century is it made the justices ride circuit. They learned to go out on the road to hear cases of what if congress brought that back . I mean sure some of them might take private jets too, to get to those. So but like thered be historical precedent for that. Right. Where legislation looks newer, looks like theres less precedent. Yeah, i think thats a risk. But the two things that difference is, one, thats not a reason not try. And two, again, if the court is striking down legislation designed to make court more publicly accountable. Thats basically proof of concept, too, isnt it . Right. Where actually congress would have accomplished its purpose without sort of accomplish this purpose. So again. You know, i think the the politics are such that its going to be hard to see how we get there. But if we got there, i actually think the either either outcome is actually probably good from an institutional design perspective. Okay lets go over here, please. Hi. Hi. Thanks for being tonight. Am i . I recognize that your argument is not about partizanship. Right . You made that really clear. But i wonder if you could to, um. You know, when you say above the fray, for example. Right. That the kind of understanding that they ought to not be that political. Right. And and yet theres long history of justices who have been candidates for governor or various things like. So i was wondering if you could speak to sort of whether theres just a fundamental misunderstanding on the part of the public about what it means to be a justice and also like a human being whos also potentially also cough, cough, ginni thomas cough, cough, yeah. I mean you know, william about douglas i mean the you know this is i tell the story i had a longer version of the story in the book and my editor made me take it out. Douglas comes within a whisker of being fdr, his running mate in 1944, which if you play that forward, means douglas within a whisker of being president. Right. In april of 1945. Its only because whats his name, the missouri guy, flipped the names on the piece of paper so that trumans name was first. Anyway, so but historically, frankfurter routinely consulted with fdr, even when hes on the court. Fortas i mean, but the the real reason why people were mad at fortas wasnt his ethical call like the financial problems. It was that he still like an advisor to lbj when hes on when hes on the court. So i think we have buried for all time the notion that the justices are not political actors. And i think good, but theres political and then theres partizan and i think theres, you know, theres theres a distinction between those things that we blurred a lot in recent years, partly the court itself has spread out. I mean, since 2010, before 2010, there was never a moment in the courts history where party of the president appointed the justices matched perfectly on to the ideological alignment of the court. You had liberal republicans, you had conservative democrats. Its only since 2010 that we have this perfect sorting. And i think that has consequence is that the justices ought to be responding to an and responsive. And instead that just sort of leaned into that or at least conscious of. Yes. At least acknowledge. I mean, theres where i think roberts when he does feint in the direction of trying to preserve the institution kind of well, i sort of agree that the institutions be preserved. Well, i note where roberts gives that speech. Roberts gives that speech to, for example, the american law institute. Right. Not a partizan body, but a, you know, a sort of a nerdy group of lawyers, right. Versus the conservative justices going to the Mitch Mcconnell center to complain about being criticized for being partizan. Right . I mean, like so so theres you know, theres an extent to which i think the justices their own worst enemies in not and not taking steps to rebut this proposition this question of the politicization of court. We know every four years a president ial candidate Campaign Wins either by winking or by acknowledging out loud that this is about the court, as much as its about the president , especially republican candidates. Well, but i mean, they can do they can see that you have a justice who is x number of years old. This is the message implied or explicit is elect me, because im going to fill that seat. Right. Right. But i think whats changed . Inevitable. But but, i mean, as recently, as you know, 90 or 100 years ago, im going to fill that seat. Doesnt mean im going to fill that seat with the person farthest to my flank of the party who i can get through the senate. Right. It was still, you know, brennan appointed by eisenhower, because eisenhower wanted a state court judge who was a catholic. So the shift. Right. Thats the shift in behavior thats deeply rooted in our contemporary politics that the court to and has not responded to. I want to take lots of questions. I hope one of them is about expanding the size of the court. I hope somebody ask that, sir. I do that. I know you can do it. Ill do a spin on your question. Because it relates to that. Yeah. If we had more than nine on the Supreme Court, more justices with the shadow of the shadow docket, do you think the or lighter. Im to get to, as we all said . Yes. So i i think the short version is with more justices would come, more more possibilities for weird things happening through obscure procedural. Right but you know, and that that sort of you know, the more judges have, the more youre going to have weird things happening in random combinations and less its always the full court. But and this is know ill take the chance to answer evans question. So i am perhaps idiosyncratic against expanding of the court for two reasons. The first is sort of very realpolitik, right . If democrats, when they were in control of both chambers of congress and the presidency, added four seats to the court, the next the republicans were in charge, they would add 610, the ten right that the democrats would. 17 so that by, you know, 20 years from now, wed have a court with 51 justices and no legitimacy. And if you want to destroy the court, great. I dont right. Im im here to have to praise the court not to bury it right. The other problem, though, is, again, and this is whats consistent, hopefully what ive been saying, you know, for the last long, its the problem is not as much the justices are as how they are. And if you add four justices who we might like but dont make them more accountable, that doesnt make them accountable and doesnt make the court more accountable. So to me, like we fall a trap when we think that the whole about who the justices are so can change what the bottom line rulings are. Because what that misses is that weve here in part because of who the justice happened, in part because of the institutional relationship breaking down. Right. Would you would you come over here next, you be open some shift in the way justice served so that rather than being lifetime appointed, there were retention elections or some other mechanism that would give form of accountability. So i mean, i think retention elections would be unconstitutional. Yeah, but thats im just so what . Yes. In a world in which way to go. Buzzkill. Im just no, im just like playing around in a world in which you can get something through two thirds of both chambers of congress, three fourths of the states to reform the Supreme Court. Do it. So this, again, like that would be fairly down my list of reforms right . I mean, like, you know, we dont need a constitutional to restore a much healthier, much more accountable dynamic between congress and the court. We just need a Congress Actually thinks part of its job is institutional, not just partizan like the my my friend ben shots right there from the the i do have a brief supreme related question. But first, you know, i understand youve been on the road for a long time. Youre finally home and. Maybe its time for just small comment off in frivolity in that vein. So yeah, i see that so and yeah, i want to make sure that you coming back right to texas. No, no, i think that nessel oh, thats up to him. Okay, well, we want to see it. We want to hear about our record right after this. My comment is, yeah, you know that evans an enormous yankees fan. I do. And hes an enormous mets fan. Okay. I just want to make sure knew that this is how we, you know, like cats and dogs living together was also totally backwards because evan grew up in queens and i grew up in manhattan. So its totally, totally counter to counter predicted thats what happened anyway to the Supreme Court. Do you find it and this gets a little bit off or it goes beyond your book a little bit. You find it ironic and ironic, maybe too soft or weak . A term that the Supreme Court now in, you know, in taking apart administrative state, is in one sense, in the simplest terms, um, congress is providing enough guidance to the executive. And here you have the Supreme Court. I mean, really the heart of your objection to shadow docket is that it doesnt provide guidance. I mean, there is a contradiction there. I dont think its a contradiction. I think its i think its the opposite side of the same coin. Right. Which is the the court has claimed power in the context of the substantive law youre talking about in the context of administrative regulation by suggesting that congress has to speak more clearly. Right. And so the court has said and over again, like if its a question of vast political or economic significance, this is the major questions doctrine, right . Congress to expressly authorize the program. Else its not authorized. We might see that coming soon in the student loan case thats similar move to me right to the court saying you hey congress you know you havent done these things you cant do these things as what were seeing in that space. Its a good i mean the subtitle of the book right. How the Supreme Court uses stealth rules to power. Its amassing power in both directions. And its capitalizing on what justices know to be true, which is that our current Political Landscape is one in which theres no appetite for institution, no reforms either. On the substance right, either to, for example, restore the epas authority that the Supreme Court took today. Right. Or to restore the sort of legislative control over the court that we saw historically. So i see those as deeply consistent, not not inconsistent. We have time for one that we have time for. How about over there . But i want to be sure we have a woman so. Who do you think leaked . Dobbs do you think it effective. Do do you think it affected what ultimately and why do you think chief Justice Roberts never followed up on his investigation, quote unquote. I dont know who leaked . Dobbs my, my theory has always been for us written it was a Second Generation leak. Was that that the justice leaked the draft to a friend, not expected it to become public and that it was the friend who made the decision to sort of, you send it out into the world that i have no information. But but but you would acknowledge the problem was not the friend sending it out into the world the problem was the justice leaking it to friend desk. But we know that thats happened before, right. That doesnt make it right. I agree but it makes it less extreme it makes it less acceptable but the lot of what we dont talk about enough about the dobbs leak is that a week before dobbs leak, the wall street journal ran an editorial talking about how there were you know, it was 5 to 4 and there were efforts underway to try to intimidate the cabinet to sort of softening. That seems very wellsourced given what followed. Right. It seemed very speculative at the time. Like who was talking to the wall street journal. It doesnt account for how four days after the dobbs leak, theres a story in the Washington Post that specifically identified as, quote, lawyers close to the conservative justices reporting on what was said in conference in dobbs conference, where the only nine people in the room are, the justices right. So unless you snuck a listening device in there, which, by the way, that would be pretty cool, right . So so like the story of the dobbs to me is not just who leaked it, but we dont talk more about the the clear leaks surrounding it that that would have been on their own some of the most remarkable leaks out of the court in recent years. To your question about Justice Roberts sometimes you dont want to find out and so you know so i think there are two features of the courts internal investigation. One is the chief was to let the executive branch come investigative or his dead body right . There was no universe in which he was going to invite the fbi to come investigate the internal workings of the court. And the second is that, you know, its not hard to. Imagine a universe where if he had suspicions about where the leak came, especially if the suspicions were relative higher in the organization chart, he might have been inclined to not push that hard to, have those suspicions verified, and theres this you know, this goes back to i mean, the the book ends actually a lot with the chief because find roberts this fascinating character in the story. Hes hes the most unproved all in a way of the of the court justice. It comes to the topic of the book and two things are true one is like he does not have as much power as you might think he does just because hes chief right here. He is not the boss of the other justices. Something i think you know didnt, we might not have thought that between 2018 and 2020 when he was also the median. And so he could really do whatever he wanted. But two, he has a bully pulpit that he has used before. And where i actually think, you know, one of the real question is why isnt he using it more right now . Because, you know, i have no trouble believing that he sees lot of whats happening right now is Serious Problems for the court in the long term whether thats because theyre going to get in the way of his substantive agenda or whether because his institutional views are actually altruistic right. He could right say more he could be more public and and this is not a suggestion, its just an observation. If he really thinks the court needs to be saved, he can resign and let a democratic with a Democratic Senate fill his. And so i think, know, hes a complicated character. Hes not doing those things even as hes complaining about rightly, these institutional erosions. I want to just ask you, as we leave here. Do you agree with the premise on roberts that the person who leaked it higher in the org chart because remember the talk immediately was its a staff member and its a staff member to a liberal justice who was mad, i would say. I mean, if you talk to folks who have ever worked inside that building, i havent. Right. But folks have worked on the court, folks who have worked at the court. They would, i think, almost all say that the odds go up the higher in the totem pole you go, because a clerk who is bound to have been the leaker is risking their entire career whereas a justice who found to be the leaker will be invited to give speeches at fancy and flown on private jets to them. Okay on that note, were going to stop inside one of the big men in great, but have more him. Allthank you very much. Ladies and gentlemen, coming. Our topic today is medicare, the largest care player in the american, a