Divided Argument

Normal Procedural Regularity

Episode Summary

Will and Dan have the first part of a two-episode discussion of the Supreme Court's "shadow docket."

Episode Notes

In the inaugural episode of Divided Argument, Will and Dan have the first part of a two-part discussion of the Supreme Court's "shadow docket." Will explains how he came to coin the now-famous phrase in a 2013 article, and how good advice from a friend helped him avoid a "terrible title" for that piece. Will and Dan also discuss Justice Alito's contribution to the important field of original jurisdiction before closing out the episode with a plea for reviews on your podcast app of choice. 

Episode Transcription

Will (00:17):

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Dan (00:25):

And I'm Dan Epps. As Will said, this is going to be an unscheduled podcast, so no promises about when we release episodes, how often we release episodes. But basically we'll record whenever we have something interesting to say. Interesting to us, maybe not interesting to everybody else.

Dan (00:44):

Will, I thought we would talk about a topic I think that you're a little bit familiar with. The shadow docket.

Will (00:49):

Great term.

Dan (00:50):

You've heard of that, right?

Will (00:51):

I've heard of that.

Dan (00:52):

Okay. This is something that has gotten, say, a tremendous amount of attention. It's been building up, but I feel like in the last two or three years it's really gone into a fever pitch. People are talking about the Supreme Court shadow docket.

Dan (01:05):

We're going to talk about that, but actually I think at the outset it would be really helpful just to try to figure out what that means. Now, this is a term you first created in a 2013 article. Since then, a lot of people have taken it and run with it.

Dan (01:18):

But my sense is that maybe sometimes people use it to refer to slightly different things. I want to get your definition of what the Supreme Court shadow docket is out on the table.

Will (01:27):

Sure. The shadow docket is everything that's not the ordinary merits docket of the Supreme Court. The ordinary merits docket being the cases everybody spends the most time paying attention to. You file a cert petition, you grant cert, they're orally argued at some point during the court's term, and then they get an opinion sometime between October and June. That's the ordinary docket.

Will (01:46):

The shadow docket is just a catchall terms for everything else. Everything that falls outside.

Dan (01:49):

Literally everything else.

Will (01:50):

Literally everything else, from injunctions to opinions respecting orders to dissents from the denial of cert to everything like that.

Will (01:59):

I will say my original title was paying attention to the orders list. What at Supreme Court people would call the orders list is the core, but Supreme Court actually has multiple orders lists.

Dan (02:09):

It's very good you didn't call it that because I think the article would've had less influence and then maybe somebody else would've written an article about the shadow docket or some other clever phrase. Then that would be getting repeated all the time.

Will (02:21):

My good friend and colleague Justin Driver came to my office when I gave him a draft of this article and said, "Will, this is a fine article. But you cannot call it paying attention to the orders list. That is a terrible title. You need to come up with something." Then we brainstormed and ended up with the shadow docket.

Dan (02:34):

I think that was extremely good academic advice. I hope you're giving him some intellectual royalties on your dividends from this article, such as they are.

Dan (02:44):

Okay. Basically it's everything, everything that isn't opinions after oral argument. So you said it's dissents from denial of cert. That's interesting. Would you say the cert process generally is part of the shadow docket or just when people write separately about what's going on in the cert process?

Will (03:02):

Well, I think it's anything out of the ordinary in the cert process. So like a summary reversal is technically a cert petition. You get a cert petition and then rather than granting it the normal way, you grant and reverse all at once. That's part of the shadow docket.

Dan (03:14):

Okay. Looking back at your original article published in NYU Journal of Law and Liberty, it's a forward, the Supreme Court shadow docket, you defined it, in the abstract at least, as a range of orders and summary decisions that defy the court's normal procedural regularity.

Will (03:32):


Dan (03:33):

That's part of it too, doing something a little different than the process that you laid out. That actually raises a question for me before we get too deep into this.

Dan (03:43):

Is there a point at which something stops being the shadow docket if the court does it a lot?

Will (03:49):

Yes. I mean obviously in a sense the point is to capture this, this sense of stuff we're not paying attention to that we don't quite have the normal rules for, the less shadow it becomes. The less it's part of the shadow docket.

Dan (04:01):

Okay. Now I'm wondering is there a shadow docket anymore? By identifying this idea, now you're destroyed it because when you say the shadow docket, this is not really in the shadows. Right? People are talking about it, there's articles. I did a Google search, there's tons of popular press articles. We had the House Judiciary Committee had a hearing about paying attention to the shadow docket.

Dan (04:21):

At a certain point, the stuff is getting a lot of scrutiny. So is it important? Is the idea of it being in the shadows really important? Or do you think that maybe just now it's the weird docket or it's the non-procedural regularity docket?

Will (04:36):

I mean look. We don't have to get too hung up on labels. We can call it the penumbra docket now if we want. But I think it still has ... the key feature is still for things that we're paying attention, these injunctions and stays pending appeal, it's still the case that nobody quite knows what cases are on that docket. What case the court's going to do something in. We don't know when the court's going to rule on them, we don't know exactly what it's going to look like.

Will (05:00):

I think you can imagine a world where the court had an official summary reversal docket and it takes a cert petition, puts it on the summary reversal docket, you know then the next two months you're going to get a summary reversal. Then they have a separate set of rules for summary reversals that they communicate to us. I could imagine us getting there. We're not there yet.

Dan (05:17):

Yeah, yeah, definitely not there. I think there's still just a lot of stuff that they do that we don't expect. One thing that people note about the shadow docket is some of these orders are released like at 10:00 PM on Friday night, when some of the Supreme Court reporters are maybe not as available.

Dan (05:32):

That may not be intentional. It may just be that's when these things are ready. But that is something that we just don't know. All of the sudden we get one of these and you're like oh wow.

Will (05:42):

For opinions, they tell us. They're like next Monday we're going to have opinions, or whenever.

Dan (05:46):

They don't tell us which ones, which is a lot of people complain about. They say why can't they just say we're getting the ACA opinion next week.

Will (05:52):

Yeah. But still, imagine if at 2:00 AM, randomly, as soon as Justice Thomas was done with his concurrence, the ACA opinion just went up on the website. That would be different.

Dan (06:01):

Maybe that would be better, because then right now for every non argument session at the end of the year, everybody's there hitting refresh. You waste your whole morning and then you get two patent decisions and then you've wasted your morning for no good reason.

Dan (06:16):

But I digress. I think that there's some normative content here. This idea that they're not following procedural regularity, there's things that we might think are troubling about that. I want to get into that. But I think maybe we should just talk about what's been happening on the shadow docket and then step back later on.

Will (06:38):


Dan (06:38):

And do a little bit of evaluation. You wrote this article, 2013. There's been, I think, a fair amount that's happened in Supreme Court world since then and in shadow docket world since then.

Dan (06:51):

We've had two changes of an administration. We've had significant changes of personnel on the court. And we have, at least according to some, changes in behavior by the court and how it handles the shadow docket. I want to see if we think that's true.

Dan (07:10):

I don't think we can really recap everything that's happened in the last eight years.

Will (07:13):

Please don't.

Dan (07:14):

But maybe we should just talk about, yeah, some of the stuff that's happened.

Will (07:17):

Should I start with the COVID cases?

Dan (07:18):

Yeah, yeah. That's big, right? That's something that quite controversial, high profile. Let's talk about those. Where should we start there?

Will (07:26):

I was thinking all the COVID church cases. One of the most important things that's happened in the shadow docket is in a series of, I've lost track of how many decisions, the Supreme Court has ruled over and over again in different directions, changing back and forth, about how lockdown/shutdown orders can affect religious services.

Will (07:45):

In the process, maybe made quite a bit of law about the legal status, the Supreme Court's decision in Jacobson v. Massachusetts about deference during public health, about the legal status of Employment v. Smith which is a major free access precedent that the court might be reinterpreting on the shadow docket.

Will (08:02):

The oversimplified story being at the beginning of the pandemic and before the most recent appointee to the court, the court seemed to adopt a somewhat deferential rule. By the end of the pandemic and with new appointees on the court, the court seemed to be quite skeptical of the ability of a lockdown order to seriously restrict [crosstalk 00:08:23].

Dan (08:22):

That does seem like that's a function of pushing Chief Justice Roberts out of the median spot. Because one of the important early decisions was South Bay United Pentecostal Church v. Newsom for a case out of California, where the Chief Justice wrote a concurrence to why he was denying an application for injunction of relief there and explained his views.

Dan (08:46):

Then it seems like with the change in personnel, Justice Barrett replaces Justice Ginsberg, that kind of shifts the balance of power on the court. The remaining five more conservative justices seem more religious, pro-religious liberty in this context. And in other contexts of course.

Will (09:06):

I think that's all right, although I do think there's also some, even among the two justices votes I think shift a little bit over time. There is also just a sense of the court getting its feet under it here.

Will (09:16):

At the beginning the pandemic, it's more a sense of we don't know what's going on and we have to let local governments try to solve this. By the end, as everybody has stronger views, some informed, some not, about what causes COVID to spread [crosstalk 00:09:30].

Dan (09:30):

But also not just that. I mean the mere fact of the length changes it too. You might say this is okay at the beginning, but you can't do this forever. That's what Justice Gorsuch's opinion is. I think it was in the Roman Catholic Diocese opinion where he says the Constitution doesn't let us shelter in place. Right?

Will (09:51):


Dan (09:53):

That could be relevant too.

Will (09:54):

Yeah. Exactly. But I think a bunch of these cases, they've been controversial, they've been moving over time, but I think part of what's interesting and controversial is that right now the court has on the regular docket a case of whether to overturn its religious liberty precedent, Employment Division v. Smith, which says in general you can't claim a religious exemption from a neutral order and people argue what it means for them to be neutral.

Will (10:20):

The court is arguing about these things and reaching controversial decisions about what the principle means. In five decisions that have been briefed and decided, while one merits case is pending.

Dan (10:32):

Yeah. This is an interesting development, which is the fact that they're actually writing these lengthy opinions. Which they often don't do. They often just ... it shows up on the orders list or miscellaneous order.

Dan (10:45):

I mean one thing I was trying to do in preparing for this was just get a handle on everything that's happened in the last year or so. I couldn't really because it was you just have to look. You go to the orders list and there's a bunch of PDFs that say miscellaneous order and they don't tell you anything.

Dan (11:01):

So it's actually quite hard to even know what they were doing. You have to look up the docket number. But here they're writing some pretty lengthy opinions. Do you think that they would've handled these...

Dan (11:15):

Put aside the merits, put aside the merits. Do you think that they would've handled these the same way in terms of writing these opinions if this was 10, 20 years ago? Or do you think this is a change in practice?

Will (11:25):

I think this is a change. I mean I think the year I was writing about it, there were all these cases about same-sex marriage, which used to be a big issue.

Will (11:35):

They were doing weird stuff. They would stay some of the lower court decisions then suddenly un-stay them. Judges were trying to figure out is the court signaling which way they're going to go, before we knew that. They wrote nothing. I think occasionally Justice Thomas let loose a short dissent, but the court said nothing.

Will (11:53):

Even that [crosstalk 00:11:54].

Dan (11:54):

Then sometimes Justice Ginsberg gave public remarks where she said here's what I was thinking.

Will (11:58):

If you were lucky, Justice Ginsberg would mouth off to a reporter and you'd get a little bit of information.

Will (12:03):

I do think they're writing more. I think they seem to be aware people are paying more attention to these and trying to get the signals. They're trying to give more signals.

Dan (12:10):

I mean do you think maybe that's because of criticism from folks like you and the fact that Congress is maybe paying attention and voicing concerns about this? Or some other? Is it that the court is more polarized, or at least arguably seen as more polarized? Where do you think that's coming from?

Will (12:30):

Yeah. I mean I don't know. I'm not fully taking the credit for it. I do think they're increasingly aware that people are trying to get the message of whatever they're doing with these orders, is they're trying to give people the message. Whether that's a matter of criticism or just the court trying to give people a sense of what it wants. Yeah.

Dan (12:50):

Maybe we could say a couple things. We could say this is good. It's good that they're telling us what they think rather than just giving us a series of petitioner wins, respondent loses, respondent wins. Those kind of outcomes.

Dan (13:04):

On the other hand, it poses other risks. Which are related to some of the things you mentioned. That these are opinions that are being issued without full briefing. I mean the briefing is just stay applications, right?

Will (13:17):


Dan (13:17):

Or injunction applications, which are short. They're drafted on very short timelines. I think it's quite rare to have any amicus filings at that stage. You'd have to be acting very quickly.

Will (13:31):

It's gotten more common, though. The Becket Fund, they're on it. But yes, it's not [crosstalk 00:13:36].

Dan (13:36):

But you need resources, you need lawyers that can do it quickly. And you need to even know that this is happening. Right?

Will (13:41):


Dan (13:42):

And no oral argument obviously. It does seem like these opinions, and these opinions are precedential right? That's the thing that's always I thought was interesting.

Will (13:54):

[crosstalk 00:13:54] I said that's confusing whether they're precedential.

Dan (13:57):

Yeah. But I guess my sense is that Supreme Court opinions deciding things on the merits are precedential. I didn't think that the Supreme Court issued ... it doesn't really issue unpublished nonprecedential opinions right?

Will (14:09):

That's right. That's right.

Dan (14:12):

I mean maybe how much it's precedential we can debate, but it's like this, in theory, makes some law. Right? At the very least, lower courts are going to read it and think oh gosh, we got to do what they're telling us to do. They could screw things up right?

Dan (14:28):

Like the thing you noted. Did they maybe overrule Employment Division v. Smith without clearly telling us? In Tandon where there was a ban on indoor gatherings at homes and then court says well, but you're letting other gatherings happen other places. And so basically it's not a neutral rule.

Dan (14:49):

Which I found, I think a lot of people found, quite controversial and strained. I didn't find that totally persuasive, although some friends of mine have made arguments to me. But that is, yeah, that's quite interesting and potentially problematic.

Will (15:06):

Yeah, exactly. In a religious liberty world, there's long been this question about how do you understand the principle that you don't have to give religious exemption from neutral rules, but you can't discriminate against them because going back to the legal realists, equality always depends on what's the baseline and what's the comparator.

Will (15:27):

So the court has been making some new advances, moving the ball. Whether for better or worse.

Dan (15:34):

An argument somebody made to me was well, it's not really a neutral rule because you just think of it at a different level of generality. There's rules about stuff you can do with lots of people and this one basically ends up carving out religious stuff, because that's the kind of stuff people want to do in their homes, but doesn't carve out, doesn't prohibit commercial activity.

Dan (15:58):

I didn't totally find that persuasive. But I thought it was the best someone could do to try to explain that to me. At least without saying okay, we're just overruling Smith.

Dan (16:09):

Which I think would be quite inappropriate to do in a shadow docket type context.

Will (16:16):

That's the way I was going to go. I think when the court didn't write opinions in these cases, it was easier to say well obviously they're not making any new law when they just say stay granted, stay denied. You know? They couldn't because they wouldn't say anything.

Will (16:29):

As they write more opinions, that's good because now we know more of what's going on. But then they're more tempted to get into normal opinion writing mode where they get to make new law or overrule cases. I mean they probably think look, we have five people here who think Smith should be overruled. Why don't we just tell everybody?

Dan (16:44):

Yeah. Although even when that's true, don't you usually ask for briefing on that question? Isn't that the normal? Even if it's an argued case, if they go back to conference and they're like yeah, I really think we have to overrule this case, let's have some briefing on that. Right?  

Will (16:58):


Dan (16:59):

Sometimes, yeah. Maybe not all the time.

Will (17:01):

But I'll just say the more ... the point is the more they say in these opinions, the less it's clear why they get some sort of lesser procedural status.

Dan (17:11):

Mm-hmm (affirmative). If it's a two sentence order, I mean what do you do with that? I mean obviously the parties have to follow it. But it's hard to say that creates much law.

Will (17:20):

Right. But if you're going to write a five page precedential opinion, then should we do the stuff we normally do before the court writes a five page precedential opinion?

Dan (17:28):

Yeah. In some of these we just have the two line order plus concurrences and dissents. But in tandem, we actually have a per curium.

Will (17:37):


Dan (17:37):

That's like okay, that's binding.

Will (17:42):

My sense is part of what happens is so there, they start out trying to avoid making any new law in these church COVID cases. But they do have a general approach they want to have happen. Then the lower courts get quite conflicted about what to do with that.

Will (17:56):

Some lower courts think they get the message, other lower courts get a different message. The court finds it has to keep deciding these cases over and over. At some point they get understandably frustrated and so they decide all right, fine, we'll give you a per curium opinion and tell you what we want.

Will (18:11):

But then we might look and say well wow, if that's actually making some new law, did we get there the right way?

Dan (18:17):

Yeah. Okay. A lot more we could talk about with the church COVID cases. But there's a lot of other stuff to talk about too.

Will (18:26):

The one other example, some of which happened a couple years ago, are these death penalty cases. Involving can you execute somebody without letting them have their chaplain, their Buddhist or the imam or their chaplain, in the execution chamber with them.

Dan (18:44):

And the answer is yes, if they're Muslim, no if they're Buddhist. Right? Basically.

Will (18:48):

Or maybe not anymore. I mean this is another one of these [crosstalk 00:18:52]. They ruled against a Muslim prisoner, then in favor of a Buddhist prisoner, and then understandably said whoa, is the rule that Muslims don't have rights? So then they were concurrences and I think they dropped a weird footnote in a merits case that wasn't really about this issue, to try to explain their past behavior.

Will (19:09):

It's another one of these cases where the court clearly had some thoughts and they were struggling with how to communicate them to us.

Dan (19:16):

Yeah. It seems like it's moved a little bit. First they say it's okay to go ahead with the execution and that one was Dunn v. Ray, that was the Muslim prisoner. And then they say no, it's not okay to go ahead with the Buddhist prisoner and execute him, because you have a non-neutral rule, you're letting other kinds of religious spiritual advisors into the death chamber but not Buddhist. That's Murphy v. Collier.

Dan (19:49):

Then we have Dunn v. Smith, which seems to basically say you just have to let them in. Right? That you can't even have a rule that says no spiritual advisors, because of the religious land use

Will (20:03):

And Institutionalized Persons Act.

Dan (20:04):

Okay. The I was hanging me up. Yeah, which imposes some accommodation, religious accommodation requirements, on prisons and some other places where there's federal jurisdiction.

Dan (20:17):

That's been an interesting saga. I think one thing we haven't really addressed in talking about that is the first one, Dunn v. Ray. Widely criticized right? Very very, maybe I'd say even pilloried. Some people said between Dunn v. Ray and Murphy v. Collier, the Buddhist one, the court maybe heard the criticism.

Dan (20:40):

Now, there are some distinctions that can be drawn. I think you have a blog post somewhere addressing some of those. Am I making that up?

Will (20:48):

You're not making that up.

Dan (20:49):

Okay. Good. You have a lot of blog posts. But it did seem like at least a possible explanation for what was going on, that part of what was going on that maybe the court recognized that this was very controversial, got a lot of criticism?

Will (21:03):

Yeah. It's also possible, honestly, that not all the justices were totally paying attention the first time. I mean one of the things you don't ... I mean you hope the justices are always all paying attention to everything. But sometimes with something where the justice isn't in person attending oral argument in conference, you don't always know how much did they just get a call from their clerk saying it's another stay application, we should deny it, and how much did they really dial in.

Dan (21:26):

I'm not sure which of the two explanations we just went over is less flattering to the court, that they're cravenly following public opinion or they're just not paying attention. They both seem not ideal.

Dan (21:37):

But yeah, that's an interesting thing to know, that we haven't really put on the table, is we're talking about this specific issue in the death penalty context. But shadow docket stuff is capital cases all the time.

Will (21:47):


Dan (21:48):

Right? I don't have a sense at this point of exactly how many executions are taking place in the United States. Fewer than I think a decade or two ago, for sure.

Dan (21:58):

But when I was clerking, when you were clerking, there was this death list and you would know okay, Texas has one scheduled for next Tuesday. The clerks would rotate who was on that. Every chambers would have a clerk who's on it and you'd be there staying late. There would always be somebody filing last minute motions and the clerks are calling the justices at home sometimes.

Dan (22:25):

People are writing dissents, more of the time they're just issuing one sentence orders. Sometimes where they say Justice Sotomayor would have granted the application or something like that. Sometimes not even that.

Dan (22:38):

It is possible that this death penalty case, Dunn v. Ray, which a lot of people think was wrongly decided or at least deserved a lot more consideration than it got, could have slipped through the cracks. People are just like oh gosh, another one of these capital cases. And that's troubling.

Will (22:57):

Yeah, I agree. But I mean that has to ... maybe that doesn’t have to happen in a death case, but it has to happen on the orders list. The court issues thousands of orders. They are not ... not every justice is personally reviewing every single one.

Will (23:09):

Allocation of the court's attention is one of the things that the shadow docket is ultimately about.

Dan (23:13):

When you say thousands of orders, you mean they [crosstalk 00:23:15] thousands of cert denials?

Will (23:16):


Dan (23:17):


Will (23:17):

You think of that, though, as there could be a case where they deny cert in something and then later on you might ask a justice why did you deny cert in this case, and they might say honestly, I didn't even know we denied cert in that case.

Dan (23:28):

Yeah. yeah. I mean because there's the cert pool. I think seven of them are in the cert pool now. Right?

Will (23:33):

As far as I know.

Dan (23:35):

Gorsuch and Alito are not. You've got seven of them, they have clerks sharing memos about the petitions. Someone could just write a memo that doesn't attract anybody's attention, case doesn't get put by the justices on the discuss list. Doesn't get discussed at a conference and then it's just denied as a matter of course.

Dan (23:54):

So yeah. That could absolutely happen.

Will (23:58):

We should talk about this more in a minute. But I have one last thing on this death thing, one last thing that could be going on.  

Will (24:02):

One thing the court has said in some footnotes in some merits opinions and some concurrences in these opinions is it doesn't want people to file these things at the last minute. It really ... even an otherwise meritorious claim, if they feel like it's the day of your execution and you didn't have to file it the day of your execution, you might lose.

Dan (24:20):


Will (24:21):

I do think this is an area where on the one hand, that's actually a very sensible rule as a matter of administration. If you think look, we don't handle these cases very well when you give us six hours notice and we're all trying to figure out what's going on.

Will (24:31):

On the other hand, they haven't ... it's not like there's a Supreme Court rule that says this is when your claim is timely filed or anything like that. Part of what's going on in these cases also seems to be the justices making their own decisions about whether or not your petition is fast enough, without any hard and fast rules.

Dan (24:50):

Yeah. I think that is really troubling, because there clearly are some of these that are just death penalty counsel throwing everything they can against the wall. Which I think they should. I mean at least it's arguably their ethical obligation to do so, right?

Dan (25:06):

I mean because they have to be doing everything they can to save their client. Ethically they're not supposed to say well, I could file something that has a small chance but I want to preserve my credibility for the next capital defendant I have. No. They really need to do everything.

Dan (25:20):

Then also, which kind of makes me a little resentful of Justice Alito complaining about, I think he's used the phrase guerrilla tactics, by death penalty counsel. What do you want people to do? This is literally the most ... they're lawyers who have ethical obligations and they're trying to prevent the worst possible outcome for their clients that any lawyer could ever face.

Dan (25:43):

But I get why it's inconvenient for the court. But then also there are things where the claims really don't ripen until right before. Right? Some of these about the religious advisors in the death room, that could be that the prison administrators don't even make a decision until a week before.

Dan (26:00):

Then you have to go through potentially the state courts, the federal courts, and so it might not get to the Supreme Court, through no fault of the prisoner.

Will (26:11):

Right. That's what makes it such a difficult area for the court to then be making these, in a way, meta decisions also fast in the middle of the night. Like okay, your spiritual advisor claim was just filed and you knew seven days ago, but did you really know.

Dan (26:25):


Will (26:26):


Dan (26:27):

Yeah. They don't have their ... I mean maybe they have the full record, maybe they don't. I mean that's kind of a mess.

Will (26:35):

Again, I think to give the court credit, I think they are aware this is not a good system. They are aware of the incentives. It's not the death penalty lawyers are doing something wrong. They're responding to what the system gives them. But they do not have a good system for dealing with this.

Dan (26:50):

Do you have any thoughts on how that could be fixed?

Will (26:53):

Yeah. I mean I think the court ought to probably, at this point, just write a rule or something. I mean there are a lot of ways you could fix it, but if the court has some view about when they'd like these cases to be filed, they could make a Supreme Court rule telling people what to do.

Dan (27:08):

But I mean it would have to be a pretty tailored rule, because of the problem we just talked about that sometimes you might have a legitimate claim that couldn't have been brought sooner than two days before or the day of.

Will (27:20):

Yeah, no. I mean I don't want to get [inaudible 00:27:22] you can have a rule that says if your claim is brought less than 48 hours beforehand, you have to have a section in your brief explaining why it's being brought in less than 48 hours beforehand and explain exactly why it didn't accrue until, or whatever.

Dan (27:33):

Yeah. Because sometimes people are just making new, writing opinion, filing petitions to raise an issue that they've already had cert denied on and the clerks and everything are trying to figure that out.

Will (27:46):

Yeah. I guess [inaudible 00:27:47] this is not rocket science and it doesn't have to be super formal. But if there are things the court thinks are really important in deciding what it should do, it should tell the lawyers what those are an tell the lawyers to spend some time addressing them.

Dan (27:57):

Yeah. I mean the other part of the problem maybe is that the court doesn't think any one thing about this.

Will (28:03):


Dan (28:03):

There's traditionally been a pretty wide range of opinion about how to handle these capital cases.

Will (28:08):

Right. That's, I think, really tough for litigants to deal with.

Dan (28:11):

Yeah. Because certainly maybe in the era a decade ago, around the time when we were clerking, I think that it was not fair to say that the liberal justices would always vote to stay. But they were much more likely to do so. I think they were much more likely to do so if they thought maybe there's something here we might want to look at, we can just figure it out later.

Dan (28:35):

I think the conservative justices think gosh, we better be really sure this is something that's cert worthy, really needs to be heard, because they see it as a real cost. That you're granting a stay, that restarts the whole process, it could push everything off by a year.

Will (28:53):

Right. Yeah. I mean obviously in capital cases some people view it as a ... if we accidentally save somebody's life for a while, who we shouldn't have legally, that's a bonus. Other people view that as a minus.

Dan (29:06):

Yeah. Yeah. The whole system, I mean it's just ... procedurally I think it's kind of a monstrous system. I mean even putting aside whatever your substantive views are on the death penalty, I mean everyone involved, I mean the prisoner is having to just live in a state of, often decades, of uncertainty. Right? As these things get kicked back and forth between different court systems and up and down between different layers of appellate review.

Dan (29:34):

The victims’ families, they're in a state of uncertainty. Lawyers are just scrambling. It's a huge amount of resources that's put into this. I think there's an argument that just there's not really a way to fix that system without really sacrificing some really significant due process type values that we want to respect before we kill somebody.

Dan (29:59):

That strikes me as a reasonably good argument for maybe just not having this penalty. But obviously there's a lot of just screaming about that point.

Will (30:07):

Yeah. To give Justice Alito his due, I mean we might say a lot of the procedures aren't really serving due process values at this point. They're really just proving to be useful tools that lawyers can use.

Dan (30:19):

Yeah. Although I would struggle to figure out the right rule that would carve out the things that we care about. I mean it seems like maybe the system currently misfires in both directions. Right?

Dan (30:32):

I mean it creates a lot of room for not particularly meritorious claims to gum up the works. But then there's a bunch of contexts where people have maybe legitimate claims of actual innocence that are not tied into some procedural violation, or something that was adjudicated a long time ago.

Dan (30:51):

And that it seems like maybe it would be better to have that heard by a court. I wonder. It's one of those areas where you wonder, why can't we just make a one-for-one trade, you know? Get rid of those cases but then allow these kind of cases to come in.

Dan (31:07):

But of course things don't work that way in law and politics.

Will (31:11):

The standard critique is why can't we just have one really fair trial rather than having a bunch of moderately unfair trials and then trying to catch them later.

Dan (31:21):

But how do we do that, right? Do we spend a million dollars on every criminal trial? I mean do you spend?

Will (31:26):

I mean maybe not a million dollars. But we could, we might have to have more federal standards for competent counsel, for due process principles. Maybe that federalism plus the current resources and attitudes towards criminal justice don't let us do that. It may not be possible. But.

Dan (31:45):

Yeah. There's an interesting Jim Liebman article about this, professor at Columbia, called, I think it's called The Overproduction of Death. Where he just says we have all this bad lawyering on the front end and then we try to deal with it on the backend, through these tools like habeas. And the incentives on the front end are to seek the death penalty more often than we should, in part because of those incentives on the backend.

Dan (32:15):

I'm skeptical of the idea that we can just have the perfect trial and then everything is taken care of. But we could probably do better.

Will (32:22):

The point is more just ... I mean it's back to where the Supreme Court is the ultimate backend. Every imperfection in a criminal justice system eventually, in a capital case, there'll be a stay petition at the Supreme Court where the court has to confront that.

Dan (32:35):

Yeah. I mean in any given year, I mean I feel like there's a hundred of these. Or at least number of these. I haven't gone through and counted them up recently. But at least when I was clerking there were a bunch.

Will (32:49):


Dan (32:50):

I had to do several, clerks had to do several. Okay.

Dan (32:55):

But so that. I think that does ... I think this does continue to be a core shadow docket area. With emphasis on the shadow part of it right? Because we still don't get much in the way of opinions in these cases.

Dan (33:08):

We did get more in the way of opinions in the spiritual advisor cases we were talking about. But for the most part, we tend to get super short denials.

Dan (33:20):

Another interesting thing about those is we don't even know the actual vote. Right? I'm always puzzled by this. Which is that let's say there's five people who vote to deny the emergency relief and four who vote to grant it. But then they say okay, let us know if you want your dissent noted. Right?

Will (33:42):

Right. Again, if you think of a cert denial, the court never tells us who voted to grant cert or not. Justices have the option of telling us, so every once in a while somebody will say hey, I would've voted to grant this case. But mostly the default is we don't know.

Will (33:54):

Everything else on the shadow docket follows the same default rule. The default rule is they don't tell us the vote unless the justices feel like it. But the more they look like merits cases, the weirder that is.

Dan (34:04):

Then even in summary reversals, it is possible for there to be a summary reversal and there's someone who says I don't agree with the summary reversal but I'm also not going to write a dissent or sign somebody else's dissent.

Will (34:16):

Right. Because the first step in a summary reversal is a cert grant. The first stage is we vote to grant this petition and reverse. Since you could well think look, I don't really have a view about the merits, I just didn't want to spend my time on it.

Dan (34:28):

Yeah. I think it's weird, though. It's weird because any other time ... I feel like any other time where the Supreme Court is making a decision on the merits, you are able to go through the breakdown and be like okay, these six are here and then these three are on the dissent.

Dan (34:45):

I didn't think it was ... with an argued case. Let's say there's an argued case and for whatever reason they've decided to do a per curiam. Do you think there it could be the case that one person [crosstalk 00:34:56] was just like I'm out, I don't care?

Will (34:58):

No. The current norm is if it's just a merits case, you're supposed to say which way you are on the merits. But the thing is, all the shadow docket cases are blended merits cases plus procedural cases. The decision to stay or not stay something is partly about the merits and partly about these discretionary factors.

Dan (35:13):


Will (35:14):

I do think back in the day, 100 years ago, 200 years ago, there wasn't the same norm. You get all these unanimous opinions from Justice Marshall some of which other justices didn't agree with. But the norm was you didn't speak up unless you really-

Dan (35:26):

And you also had the one line dissent or whatever, or concurs, whoever concurs in the judgment. With no explanation, just I didn't want to give them a majority.

Dan (35:39):

That's a big part of it. Then there's this other big lurking issue we haven't really talked about. Which is maybe one of the things that's gotten the most attention and Professor Steve Vladeck of University of Texas School of Law has drawn attention to, which is the solicitor general's role. And in particular the Trump administration's solicitor general's role in shadow docket stuff.

Dan (36:05):

The Trump DOJ went to the court and asked for extraordinary relief a lot more than prior administrations. They got it sometimes, they didn't get it sometimes. I think that they got it more than they didn't.

Will (36:21):


Dan (36:21):

I was looking, I think I found Steve's final update, although I might've missed one. Where there were a total of 40 applications for stays or to vacate stays during the Trump administration, by the solicitor general's office. Which is way more than there had been by solicitors general in prior administrations, both Democratic and Republican.

Dan (36:50):

That's true as a factual matter. But then we have a question about what do we take from that. I think a lot of people, Steve has argued this, is this is troubling, the court's being very aggressive, but there's other things as well that explain it.

Dan (37:05):

I was wondering as Mister Shadow Docket, what is your view about all that?

Will (37:11):

I mean I guess I don't think it's that troubling, in the sense that so what happened? A bunch of lower courts issued a bunch of decisions that the Supreme Court didn't agree with. The Trump administration knew the Supreme Court would not agree with them, and so they asked the Supreme Court to fix them.

Will (37:27):

In a way that's totally understandable and it's given the relative speed with which new conservatives were appointed to the court, given the dynamics of the court, the lower courts, and the administration, that's sort of what you'd expect.

Dan (37:42):

But what do you think? Do you think the thing that changed is that lower courts were just, in the Trump period, were just veering wildly and doing a bunch of stuff that the Supreme Court wouldn't like? When that wasn't true, let's say, during the Bush administration?

Will (38:00):

So yeah. Two things I guess. I do think there was a gap between the Supreme Court and the lower courts, and of course if you like the Supreme Court you would say the lower courts were doing all these crazy nationwide injunctions. If you don't like the Supreme Court, you would say the Supreme Court took a hard turn to the right and was suddenly aggressively moving the law.

Will (38:19):

We can get into the merits of particular cases. But either way, just there was a growing gap. But then I do think there's this snowball dynamic.

Will (38:26):

I think previously the SG's office thought it had to save their power for extraordinary cases. Like they can't go to the court too often. I think they discovered that when they went to the court and asked for extraordinary relief, most of the time the court agreed. So they got the message that it was fine to go to the court.

Will (38:41):

The court was upset about it and didn't want them to, they could always start denying them. But they didn't [crosstalk 00:38:48].

Dan (38:47):

Yeah. Even when they did deny, they often would get a few votes in a dissent. Sort of saying they would've granted it. But yeah, there is that nationwide injunction point you just mentioned.

Dan (38:57):

Which is that ... I don't know if I've seen true empirics on this. It certainly seems observationally true that that is maybe a bigger thing that's happened in the last [crosstalk 00:39:09].

Will (39:08):

I think Steve says, and I assume he's right about this, that even if you drop out all of the nationwide injunction cases, the Trump administration still went for extraordinary relief much more than anybody else. So it's not just that.

Will (39:19):

Although I do think that can put the court in a mood the same way that they have a bunch of [AEDPA 00:39:25] summary reversals and they also have a bunch of habeas summary reversals that don't involve AEDPA, because they've just gotten in the habit of looking anytime anybody gets a habeas corpus, to make sure it's okay.

Dan (39:36):


Will (39:37):

Last thing is of course the history as a client. The SG ultimately does have to respond to the White House. I assume that-

Dan (39:42):

Although the White House is not the client, right? The client is the United States.

Will (39:46):

Yes. You're right. The SG has the client of the United States and that client occupies the person of the president of the United States, for better or worse.

Will (39:55):

When people in the White House are saying you need to seek extraordinary relief about this, and look, the Court'll probably give it to you, it's harder to say no we shouldn't. Unless you got a good reason.

Dan (40:06):

Yeah. Because it's not even ... you can't even necessarily make an institutional credibility type argument because if they're giving it to you, it doesn't seem to be hurting your institutional credibility.

Dan (40:15):

But what about this? I mean there is this idea that's always, I thought, was fairly important, that to get this kind of what we call extraordinary relief, to get an injunction or a stay, you had to show not just that a lower court was wrong but you had to show this possibility of irreparable injury.

Dan (40:35):

Then one thing that Steve says is basically that the court majority seems to now think you automatically have irreparable injury every time a federal program or federal law is enjoined. Does that seem descriptively accurate?

Will (40:49):

I think so. I think actually ... I remember this, when I wrote the shadow docket article, that was already ... that was something that Chief Justice Rehnquist and Chief Justice Roberts had said in opinions. Is that there is automatically irreparable injury when the government can't enforce its laws.

Will (41:02):

Then a couple years later there was an opinion where it appeared to be the case that the majority had endorsed that view but it was a little bit ambiguous. This is another one of these examples of the shadow docket problem.

Will (41:13):

I believe it is the case that that is just black letter law now. That when the state can't do something, that's irreparable injury. But it's hard to tell for sure.

Dan (41:22):

Do you think that's a good rule? Do you like that? Because I don't think that we ... I mean I don't think that they strictly follow that in stays and injunctions for state court rulings. Right?

Will (41:39):

I believe the same thing comes up in the state court.

Dan (41:41):

Yeah. But the point is they're not going out and fixing every ... I don't think they fix every erroneous ruling, or every potentially erroneous ruling where some state law gets enjoined. Right? They could, but there's a lot of stuff like that.

Will (41:55):

I think they do. Justice Thomas takes the view that they should, I believe. And I believe they do think the state automatically satisfies the irreparable injury factor. Even in state, even in state instances.

Dan (42:04):

Okay. Fair enough.

Will (42:06):

I mean so look. On the one hand, I don't love the rule because in general asymmetric rules that give the government extra power in litigation when it's already the big guy seem like a bad idea to me. On the other hand, the injury when thinking about the government is so abstract that it's hard to decide what really counts as an irreparable injury. [crosstalk 00:42:28] for the few.

Dan (42:29):

I mean is this a stupid rule? I mean this is going back to the division between law and equity hundreds of years ago and when could you go to the chancellor and when did you have court of law. Do you think that these distinctions are good ones to follow in our legal system?

Will (42:49):

Yeah. My friend and coauthor Sam Bray will disown me if I say anything bad about the principles equity. I guess actually I think the rule is a good one, though. Still.

Will (42:59):

The question is why should the Supreme Court take time out of its day, time out of its regular cases, to give this case privileged attention? You need to do so right now because if you don't something bad is going to happen is actually a good answer to that question.

Dan (43:14):

Yeah. But they don't do that in other contexts, right? So if someone, if they see a cert petition and there's somebody who's like I'm going to spend the rest of my life in prison, and they see it and they think this is a really stupid legal error, stupid mistake, by the Alabama court of appeals or whatever. Not to pick on Alabama, but I'm going to pick on Alabama.

Dan (43:35):

They're still going to deny that right? Unless it's like you've split and you show that this is some important issue that's going to recur. They're just going to say you know, I got better things to do.

Dan (43:47):

I mean that's not ... I'm not talking about the stay injunction context at this point. But I just ... I do wonder why we're so concerned about fixing some of these but not others.

Will (44:02):

This is the fundamental problem with the shadow docket, is that a huge amount of it is for error correction. And everybody believes the court should do some kind of error correction. When there's something really bad and the court can stop it, and legally wrong, the court should stop it.

Will (44:16):

But then once we go down that road, there are all these heuristics and biases for what kinds of errors you want to correct, that we don't deal with in a fair or systematic way.

Dan (44:25):

We're going to wrap up that shadow docket discussion on a future episode, so stay tuned for that.

Will (44:34):

Dan, you've been ragging on Justice Alito a lot. I feel like we should talk about one of his most important contributions to federal jurisdiction.

Dan (44:41):

What could you possibly be referring to, Will?

Will (44:45):

Justice Alito has these opinions, including one recently in an original jurisdiction case, called Texas v. California. Where he has a critique of the way the court handles its original jurisdiction docket. Do you know about this?

Dan (44:58):

Oh yes. This is something that was not really on my radar that they were doing this. But I guess the Supreme Court, the Constitution says it has original jurisdiction over suits between states. Right?

Dan (45:10):

Then apparently the court has just, if they get one of these suits they don't like, they just sort of say you can't even file the complaint. Is that basically what happens?

Will (45:19):

That's exactly right. They've basically invented, without any statutory authorization, a cert process for their original jurisdiction cases that are supposed to be mandatory. So that the Supreme Court actually has original jurisdiction in a huge range of cases, in theory, not just suits between states but suits involving even one state as a party.

Will (45:35):

A long time ago they said well look, we don't have to take all of these cases. If you could file it in lower court, we'll just abstain and let you file it somewhere else. So they started doing that.

Will (45:45):

And then they started getting cases between two states that can't be filed anywhere else. They have to go to the Supreme Court or nowhere. They started doing the same thing and saying we'll just decide whether we want to let you file the case.

Dan (45:55):

Yeah. I read this and I was like what? Why are they doing that? Also, the thing that I was puzzled by is Justice Alito dissents and says we shouldn't do that. Justice Thomas, it makes sense that he would agree with that. That basically we don't get to make stuff up.

Dan (46:09):

Where are the other conservatives? Are they just thinking this stuff is so boring?

Will (46:14):

You know, we don't know where they are. I think Justice Alito first did this actually almost 10 years ago in a case between Kansas and Oklahoma and Nebraska, some number of those states against Colorado, trying to enjoin Colorado's legalization of marijuana. On the grounds that-

Dan (46:30):

That was pretty bad.

Will (46:31):

Created an interstate nuisance. That was the first time Justice Alito said wait a minute, we can't just deny these cases just because we don't want to hear them. Joined by Justice Thomas, and nobody noticed because it appeared in the wrong part of the orders list and never appeared in Westlaw.

Dan (46:44):

I think I either didn't know about that or I've completely forgotten about that. Because I came to this one, the Texas v. California one, as if it were totally new to me. I'm glad that you teach fed courts and that you're a savvy court watcher, so you remember that one.

Will (46:58):

He's done this now four or five times. It even sort of awkwardly showed up in the Texas original jurisdiction case about the election, the Trump election. Where they tried to file an original jurisdiction case and the court denied. But Justice Alito and Justice Thomas had to write this awkward thing saying-

Dan (47:13):

Which, by the way, is kind of shadow dockety, right? Because they denied it, didn't really give us much in the way of explanation at all.

Will (47:19):

Exactly. Justice Alito's had a bee in his bonnet about this for a long time and Justice Thomas has agreed. I just genuinely don't know. The other justices could think it's settled by precedent, I need to think more about it before I know that it's wrong.

Will (47:34):

I do worry it's just the look, nobody on the court likes the original jurisdiction cases. They're not interesting, they're not very good at them, and they could be worried that with an increasing number of state SGs all looking for the limelight and or partisan cred, if they say what is clearly true, that they have to take these cases, God only knows what the states are going to make them do.

Dan (47:54):

Can't they just decide them on the merits in some way? Can they just say dismissed or don't ... just summary judgment or something?

Will (48:07):

Yes. I mean I think what they could do and should do is create a procedure for dealing with these cases. Just right now, the main procedure they have is the one they use for interstate water cases, where they appoint some special master and look at it every 10 years and defer.

Will (48:22):

I also think a lot of these cases are requests for equitable relief, they're requests for injunctions or things where the court could say we're exercising discretion to just decide that there's no relief.

Will (48:31):

The one thing they can't do is just what they do. Which is just decide not to allow the complaint to be filed.

Dan (48:39):

yeah. And yet, it seems like everybody else is just going to say look, we don't want to deal with these.

Will (48:47):

Yeah. One of the hardest things to do is to convince the Supreme Court that it should not have as much discretion as it currently thinks it has.

Dan (48:55):

Yeah. They value their discretion and sometimes they take it even when they're not supposed to. I read an interesting article, I don't know if this is online yet, by Ben Johnson at Penn State. It's forthcoming in Columbia.

Dan (49:10):

Which basically says, have you seen this? The court, yeah. The court, certiorari was not actually supposed to be this power to just decide discreet questions from cases. It actually was supposed to involve hearing the whole case as an appeal. Like the way you hear it at appeal.

Dan (49:27):

Goes through the history and goes through stuff the justices said to Congress. I had never thought about this. I thought it was pretty persuasive.

Will (49:35):

Yeah, I'm not 100% sure if I agree with it. But it's really good and really thought provoking. It's this general ... there's a great quasi-historical, quasi-fed courts research agenda this was part of, to understand better cert.

Will (49:47):

Because it is, it came out of this political moment where the Supreme Court went to Congress and convinced them to radically change the nature of the Supreme Court's jurisdiction. I've heard these other stories [inaudible 00:49:58] tracked down, that I heard a story that Chief Justice whoever it was, Taft, promised the Congress that they would always have the rule of four as part of.

Will (50:06):

Like if you give us cert petition, we promise that we will never require a majority to grant cert. We'll always allow minority to grant cert. But that's not written in the statute, so is that in some way binding? Were there other principles that are part of that understanding?

Will (50:21):

Especially given how important and how discretionary cert process has become, I think looking more carefully about whether there are any kind of rules or principles there is really important.

Dan (50:31):

Yeah. I can see the argument for having some amount of discretion. But I think that there are problems with it. One thing that I worry about is the idea of the Justices looking at the cases with a real ideological agenda rather than having a more neutral criteria.

Dan (50:52):

It may be in part because that can accelerate the ideological movement of the law in any one direction or another. That there maybe are some forces that push against that.

Will (51:01):

Yeah. Part of why I worry about is, I think, justices, we have a pretty strong norm. Again, we could argue whether the justices always stick to it. They are not supposed to bring partisan considerations into the consideration of the merits.

Dan (51:12):


Will (51:13):

Some of us think that some justices do that when they're not supposed to, but they all agree they're not supposed to do that. It's not even clear totally whether that's true at cert process. It's kind of like there are no rules.

Will (51:26):

It's especially weird and troublesome, though, if you have an idea that once you grant cert you're going to be stuck with the merits regardless of whether you like it or not, therefore you can decide not to grant cert and indulge your partisan preferences there.

Dan (51:41):

Yeah. I don't know if that's a result of the fact that they don't have to give reasons. I mean this is an interesting thing I was thinking about. I was yesterday, just for unrelated reasons, I was reading this article by Fred Schauer about giving reasons in law and why do we require reasons sometimes and not other times.

Will (51:58):


Dan (52:01):

It is really puzzling. There's not obvious answers. Why do we have to have a detailed opinion explaining why one person wins, one person loses in a merits case, but then we let them do whatever they want and not even tell us why in cert. And there's lots of other questions you can ask like that throughout the law.

Will (52:19):

Yeah, I agree. Fred Schauer does make this point in his article, right? That giving reason is implicitly a requirement that you should be treating like cases alike. Or at least that your decision in this case has some implication for how you deal with some other kind of case. Which seems right to me.

Will (52:35):

Then part of the struggle is how generalizable do we want that to be.

Dan (52:39):

Yeah. We have no confidence that that's true at the cert stage.

Will (52:42):

Right. We don't want ... here's the thing is, though. The flip side is we don't want it to be too true at the cert stage because we know the justices don't pay attention all the time.

Will (52:51):

We don't want it to be the rule that if you deny the cert in this issue once you have to deny cert again unless you have a good reason, because honestly, they might just ... the decision in my cert is not that thoughtful. At the same time, we don't want them to use cert as a tool for partisan ends.

Dan (53:05):

Yeah. Although I mean they do. They pass their virtues, let's push this off, let's punt, let's wait till the country is ready. I mean that stuff happens all the time, right?

Will (53:14):

I hope not. I mean it may.

Dan (53:16):

I mean come on. That seems like it has to be true. And also even in some cases, going back to something we talked about a little earlier, didn't Justice Ginsberg basically say that's what they were doing in all the lower court gay marriage cases?

Will (53:26):


Dan (53:26):

They were just like we weren't ready to do that. We needed some time, so we just pushed those off.

Will (53:31):

Yeah. Doesn't that seem irresponsible to you?

Dan (53:35):

It seems a little troubling. I mean I think that maybe there can be good and bad reasons for exercising the passive virtues. I don't know.

Will (53:42):

Yeah. This is actually an underappreciated part of the Bickle book where he talks about the passive virtues. If you go back and look at it he starts, he says people say the court shouldn't use discretion to dock the merits of various cases. But they do it in the cert process all the time. If they can do it in the cert process, why not everywhere else?

Will (54:01):

I read that recently and had the opposite reaction. It was like well, I'm troubled with them doing it everywhere else. Maybe it's time that we took a harder look at the cert process.

Dan (54:10):

I certainly think that there are lots of reasons to take a harder look at the cert process and just make sure we're comfortable with what they're doing there.

Dan (54:16):

And in general, just given how much power Supreme Court justices have, I think we should at least be wary of them exercising too much discretion. And particularly in ways that we don't even know what they're doing it and why they're doing it.

Will (54:29):


Dan (54:40):

Thanks so much for listening. If you wouldn't mind rating and reviewing us on the Apple Podcast app or Spotify or whatever app you're listening on, that would really help. It particularly helps early on when a show is first released, in getting attention for the show. Please do that if you can.

Will (54:55):

I want to say also thank you to the Constitutional Law Institute at the Institute of Chicago for sponsoring this endeavor.

Dan (55:00):

I am grateful for that too.