Transcript of The Rise of the Supreme Court’s So-Called Shadow Docket

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The Supreme Court has cleared the way for President Trump to remake American government, siding with the President over and over again. But many of these rulings lack something fundamental, an explanation for why the most important judges in the country came to their decision. Today, my colleague Adam Lipptack explains why the rise of the so-called shadow docket has sown confusion, and in some cases, frustration in courts around the country. It's Monday, September 15th. Adam, I think that when most people think of the Supreme Court, they imagine oral arguments and lawyers standing in front of justices making impassioned cases for their clients, and then the justices asking questions and writing these lengthy opinions and dissents. But you recently wrote about how there's been this flurry of cases recently that are the exact opposite of everything I just described, which felt a little bit surprising I wondered if you could just start off by telling us what has been going on at the Supreme Court lately.

The Supreme Court is operating these days on two tracks. One of those tracks, the one you refer to, Rachel, is the merit stocket. On the merit stocket, people ask the Supreme Court to hear a case. If it does, it hears oral arguments, the justices meet, vote, deliberate, exchange draughts. And about 60 times a year, they issue long-involved considered decisions, majority opinions, dissenting opinions, often 100 pages or more. And that's what we're used to. Now, at the same time, on a separate track, there's the so-called, and People use different names for this. There's the shadow docket or the emergency docket, or lately, some justices have been calling it the interim docket. But the short of it is that this happens really fast. Parties race through the court. They submit only very thin briefs. There's no oral argument. In a matter of weeks, the court issues orders deciding consequential matters in a way that will last a year or two in a very terse opinion. This different procedure has really accelerated in the second Trump administration, which has run to the court maybe 24 times already in its first seven or eight months in office. That's a larger number than the Biden administration did over four years.

It's a much larger number than the Obama and George W Bush administrations combined. So order of magnitude, we're in a different area.

Wow.

And also the subject matter of these applications is really consequential, and the court has green lighted immigration stops in LA, canceling NIH grants, firing thousands of federal workers, discharging transgender service members. It's essentially the entire Trump agenda.

Okay, that helps me understand why something that I don't think I've really heard about before this week. Suddenly, it feels as though I'm hearing about it everywhere. Can you just explain what is this? How does it work?

Here's how these cases typically arise. A president, say President Trump, issues an executive order, setting out some bold piece of his agenda, some program, that gets challenged in court. A federal district court judge says, I don't know yet. I haven't had a chance to look at all the evidence. I don't know yet whether it's lawful or not. But I'm going to maintain the status quo. The status quo is, We didn't have this program yesterday. Let's not have it today either. I'm going to block this program for now while the case goes forward because I think it might not be lawful. The administration doesn't like that answer, and they'll go to an appeals court and say, Would you pause this ruling? Because we think this ruling is wrong. The appeals court might well say, No, It's okay with us. Then within days, it goes to the Supreme Court, and the Supreme Court is asked to pause that ruling, blocking the initiative, not to rule on its ultimate lawfulness, just to say whether it can be in place or not. The court does that very fast, generally without in-person deliberation among the justices, shooting from the hip, and importantly, issues orders that contain either very little reasoning, paragraph or two, or quite often, no reasoning at all.

It just says yay or yay, and you don't know why.

It basically sounds like this is a process that allows decisions to both get expedited and also does not provide a lot of transparency into why they are made. Why has this procedure become more popular recently?

I mean, the basic answer is that presidents of both parties have been increasingly aggressive in trying to do stuff by executive order. That gives rise as night follows day to court challenges, to court rulings, to initiatives being blocked, and the Supreme Court being asked to weigh in on really short notice. I should say that this acceleration, this uptick, has exploded in the second Trump administration. The administration thought that the Supreme Court will generally be sympathetic to them, either because it's a 6-3 Republican appointee majority that might be inclined to be sympathetic to a Republican President or a court that in general defers to executive power of presidents of either party. But the Trump administration, as has gone to the Supreme Court over and over again in the knowledge that they are quite likely to succeed, and they have been.

What it sounds like is that the Trump administration has basically figured out that this is an effective strategy to execute their agenda quickly, and they have been proven right in the many decisions that we've seen handed down so far this year. But I feel like a lot of people listening might be thinking like, Wait a minute, don't the Supreme Court justices typically vote along party lines? There's a reason we call them Conservatives or liberal justices, right?

There is an element of politics in Supreme Court judging. But in argued cases on the so-called merit stocket, they're unanimous like 40% of the time. The number of cases that break strictly along the 6-3 line is like a large handful. Unusual alliances and weird permutations and strange bedfellows are not uncommon on the merit stocket.

In the normal course of business, you do see more agreement among the conservative and the liberal justices.

Yes. But when we looked recently at just these emergency applications in the last two administrations, the picture is quite different. There's a lot more partisan voting, there are essentially no strange bedfellows. The Biden administration did win a slight majority of its emergency applications, about 53%. The Trump administration, far more successful at 84%, but I don't think those are the most interesting numbers. The most interesting numbers are when you look at the voting records of individual justices, and the right side of the court and the left side of the court are both completely playing to type. Justice Alito may well be the most conservative member of the court, voted for President Trump 95% of the time, and President Biden, 18 70% of the time. That is a 77 percentage point gap. I did that math because when you look at Justice Sotomayor and Fittanji Brown Jackson, probably the two most liberal members of the court, they also have a 77 percentage point gap, but going the other direction. Now, this is not completely apples to apples. They're not the same cases. They're different legal issues, but in a sense, not. In a sense, it's the same fundamental legal issue.

How much difference do you give the President, and how do you calculate whether leaving a program in place causes harm to one side or the other? That's the basic question in all of these emergency applications. The justices, I just mentioned, come to very different conclusions, if not based on, at least correlated to the President who they might be thought to like or dislike.

Why do you think we see so much more partisanship in these emergency decisions.

I think the justices themselves will say they don't do their best work on short notice, that long consideration of briefs and arguments and deliberations helps them understand the issues, find consensus.

Find common ground.

Find common ground. Find ways to rule maybe more narrowly, but with a greater majority. When you're operating at this speed, things other than the law may take a greater role. Now, the justices will say, Well, that's why we don't write anything, because we don't want to be locked in, because we haven't thought it through completely, because we're being required to give a quick answer, and we will defer to another day the chance to give a more considered answer. They say that if you were to write something now, you'd be locked in, and it would be harder for you to come to a different conclusion later. But the rise of this procedure, the rise of emergency orders, has real consequences for the work of the Supreme Court, and it's causing some real chaos in the legal system itself.

We'll be right back.

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Adam, I can imagine why these kinds of decisions might be confusing, because these orders, as you explained, are issued really, really quickly, and the Supreme Court isn't explaining itself in great detail. I wonder if you could give an example of a case that would allow us to see how that lack of explanation leads to this confusion in real-time.

Well, just recently, there was a challenge to the immigration crackdown in the Los Angeles area. Where, as you know, ICE agents were stopping detaining lots of people. Challenges said that violated the Fourth Amendment. They said it was indiscriminate racial profiling. They persuaded a federal trial judge to issue an injunction that says, We're not saying you can't enforce the immigration laws, but saying you can't rely on certain factors alone or in combination. Those factors were someone's apparent ethnicity. You can't stop somebody just for looking Hispanic, whether they speak Spanish or accent in English, whether they're at a work site that you might associate with unauthorized immigrants or the type of work people do, say, land landscaping or construction. And the Trump administration didn't like those restrictions. They go to the appeals court, the Ninth Circuit. The Ninth Circuit won't pause it, and they go to the Supreme Court, and the Supreme Court rules for the administration in a decision that contains precisely zero reasoning.

Like nothing. They didn't explain any part of the decision.

Yeah. We don't know whether it was because the party is challenging the order didn't have standing or whether the lower courts had ruled too broadly on immigration enforcement tactics. The majority gave no reasons. All we know is the Supreme Court orders that in Los Angeles, at least, ICE agents are free to use these tactics to pick people up, at least for now. Does it apply elsewhere? We just don't know.

In other words, and I think this gets at the confusion that you were talking about earlier, if you are, for example, a judge in Chicago, and you're dealing with this exact same type of issue, whether or not law enforcement can racially profile, you don't know how the Supreme Court made its decision. So therefore, you don't understand what the actual precedent is, and you are just basically guessing about whether or not your decision is an appropriate application of the Supreme Court's precedent.

Right. I mean, one thing in this case, in particular, was that the trial judge's ruling looked at four factors and said that you can't, alone or in combination, relying on only those factors, stop somebody. Well, that raises a ton of questions. And the next judge may wonder, well, what about two or three of those factors? Or what about apparent ethnicity by itself? An ordinary merits decision would methodically work through these issues and give litigents and judges real guidance about what the law is. Now, we haven't yet seen real life examples of lower courts grappling with the quite recent decision on immigration stops in LA. But in other cases involving federal grants and whether the President can fire the leaders of independent agencies, whether he can deport people to South Sudan, those cases have caused actual judges to be actually confused. Justice Neil Gorsuch, actually last month, in a case involving NIH grants, said that a federal judge in Boston had ignored the reasoning of a four-paragraph order in April in a different case, and that he should have understood that even though that wasn't a ruling on the merits and whether, as Justice Gorsuch said, it was only probabilistic, that it still had presidential force, and that judge had done something gravely wrong.

That gave the judge, William Young of the Federal district Court in Boston, a real I don't know what to call it. He actually went into a court hearing and at length apologized and said he didn't realize he had not meant to defy the Supreme Court. Oh, wow. That he was a Reagan appointee. He said in his 40-some years on the bench, he's never tried to defy a higher court ruling. He is committed to precedent.

He's like, I'm not a troublemaker.

He just didn't know. This is not an isolated incident. Lots A lot of judges are really struggling to figure out what precedent a shadow docket ruling represents. The problem we have is the extreme court isn't giving us opinions. It's giving us signals. Just last week, federal appeals court judges in Virginia, debated this in open court. The Supreme Court's action must mean something. It doesn't do these things just for the kicks of it. We can't just blow past it. You can hear them weighing how, on the one hand, these orders are quite opaque.

But I have to say, I read the Supreme Court as telling us, We are the ultimate deciders of the interim status of the case. How do we get around that here?

On the other hand, they have an obligation to follow Supreme Court precedent if they can figure out what that precedent is. But they're telling us nothing. And so you had one judge really bristling at the Supreme Court for putting them in this position, for giving them so little detail, so little guidance. We're out here flailing. We're just in the water, thrown in the water. Just give me some guidance. Yeah, no disagreement there.

And I guess Adam, I think one of the previous, recent times we've had you on the show was to discuss this growing tension between the lower courts and the Supreme Courts. This feels like a really clear example of how that tension is playing out in the open.

Right. In general, that is not the way the federal judicial system usually works. There's great respect and admiration across the levels of the judicial system, and people know their roles, and This controversy, dispute, schism, and out in the open is really unusual.

I guess one thing I'm wondering is, it's clear why what you have outlined could be frustrating to a judge, but why Why should an average person care that this is going on?

Well, if judges are confused, the people affected by these decisions are confused, and that's not a handful of people. That's thousands, maybe tens of thousands of federal workers. It's many hundreds of thousands of immigrants. These are decisions that are not abstractions. They are real life, life-altering decisions from the court.

Given all of the confusion this is causing for people and for the lower courts, I just want to ask, is this the only mechanism by which these cases can be decided? Do they really have to be decided this quickly just because the government asks for them to be decided on this emergency basis?

There is another way, and the court has done this occasionally. Instead of issuing an order based only on these thin stay application briefs, it could set the case down for argument. It could call for more briefs. It could do that pretty quickly. Maybe the answer is, in these hard cases, rather than moving at lightning speed, slow it down a little bit and give a more conclusive answer after briefing argument deliberation.

The Short answer is no, it does not have to be this way. There could actually be an in between option.

Yes. But what's more common is that these same cases in which the court has temporarily green lighted programs will They'll come back to the court in due course in a year on the merits, and they'll set it down for real arguments, and they won't necessarily go the same way. In the Biden years, there were three instances where the court refused to lift injunctions blocking Biden programs, but ultimately ruled in favor of Biden. In the Trump scenario, it may be that when cases return to the court, Trump loses. But in the meantime, things will will have happened. If the court greenlights lifting immigration protections for hundreds of thousands of people, some of those people will have been deported. If the court greenlights firing thousands of federal workers, maybe someday they'll go, You know what? You shouldn't have fired them.

But they got fired nonetheless. They got deported nonetheless.

Right. You can call these interim orders, provisional orders, temporary orders, but they have real-world immediate consequences that can't necessarily be undone.

I wonder how you think we should understand the moment that the court is now in in terms of whether what we are seeing represents a fundamentally different Supreme Court or a phase of the Supreme Court.

I think this could be a new normal with the court which has, for centuries, operated in great deliberation. There are scattered around the Supreme Court grounds little sculptures of tortues. And that's a representation from the court that what they do is slow and deliberate and considered and not moving at lightning speed. But these days, seemingly, half of the court's efforts are devoted to this speedy, unexplained work. Remember that we have three branches of government. Two of them are elected. They claim legitimacy by dint of having been elected by the public. The Supreme Court, the justices are obviously unelected, and they claim legitimacy and authority by dint of reason, by dint of explaining themselves and persuading people that the issue before them has gotten their full attention and a careful opinion that you may not agree with, but at least you can follow it. At least you can engage with it. At least you can test where it's right or wrong. At a court that just says, like a parent would say to a child, Why? Because I said so. That is a different version of the American justice system than the one we've been used to, and it has the potential to reshape not only the Supreme Court, but American justice.

Adam, thank you so much.

Thank you, Rachel.

We'll be We'll be right back. Here's what else you need to know today. Governor Spencer Cox of Utah, provided new information about the background and political leanings of the 22-year-old accused of killing Charlie Kirk, saying that the suspect had, leftist ideology, and that he had been in a romantic relationship with someone who was in the process of transitioning from male to female.

I will say that that person has been very cooperative with authorities. What we have learned specifically is that this person did not have any knowledge, was shocked when they found out about it.

Cox said on NBC's Meet the Press that the romantic partner who lived with the suspect had provided investigators with private messages that incriminated the alleged gunman. Cox also said that the suspect appeared to have been, quote, radicalized sometime after dropping out of college, and that the man had spent much of his time immersed in online gaming, message boards, and part of what Cox called the, quote, Deep Dark Internet. And in a livestream from the set of Kirk's podcast, his wife, Erica, spoke for the first time publicly since the assassination mission, vowing that her husband's work would continue. If you thought that my husband's mission was powerful before, you have no idea. You have no idea what you just have unleashed that has been pushed across this entire country and this world. You have no idea. Today's episode was produced by Mary Wilson, Ricky Nowetsky, and Michael Simon Johnson. It was edited by Rob Zypko, Lexie Dio, and Devon Taylor, and was engineered by Alyssa Moxley. It for The Daily. I'm Rachel Abrams. See you tomorrow.