Divided Argument

Woke to the Trend

Episode Summary

Will and Dan finish up their conversation about the shadow docket.

Episode Notes

Will and Dan finish up their conversation about the shadow docket. They discuss the Court’s summary reversal practices, try to get to the bottom of what might be wrong with the shadow docket, and ponder what it means for Supreme Court justices to act in “good faith.”

Episode Transcription

Dan (00:17):

Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

Will (00:24):

And I'm Will Baude. Let's keep talking about the shadow docket.

Dan (00:27):

Yeah, more to say here. So, let's jump right in.

Will (00:34):

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. If there's something really bad and the court could stop it and legally wrong, then the court should stop it. 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 (00:58):

Does everybody believe that? I mean, some people just say, "Look, the court is not about one-off cases. It's just about getting the big legal principles right." [crosstalk 00:01:07] I mean, Justice Scalia said things that sounded like that at points. I mean, obviously I don't think he lived up to that because I think you can point to him signing on to things that are error correction, but he said stuff like that.

Will (01:17):

I mean, he said stuff like that, yeah, I guess I'll stand by that. I think there's nobody who has zero cases of error correction that they support. There's nobody who would say, yes, if a lower court issues a nationwide injunction against the bombing of Cambodia, we should completely ignore that. And also if a state is about to execute a completely innocent person, we should ignore that. And also because ... nobody is across the board against error correction.

Dan (01:42):

Yeah. I mean, there's some people who say if the state is about to exit, you get a completely innocent person, we don't care, for sure. [crosstalk 00:01:48]

Will (01:47):

But then they think that everybody has some areas they care about.

Dan (01:50):

Yeah. I think that's probably right.

Will (01:53):

I think this is a good segue to talking about summary reversals.

Dan (01:54):

Yeah. So let's talk about that. So summary reversals, these are cases where somebody typically files a cert petition, and maybe they're asking for the case to be argued and heard in the ordinary course, but the court will just say, "This is so clearly wrong, this lower court opinion, let's just grant it, write the opinion and just put it out." And you don't even know that's coming, right? This is something that you noted before. There's no docket so it's just, you just notice. John Elwood, who does Relist Watch, he sort of keeps track of the petitions that have been lingering in some kind of inexplicable way. And that kind of gives you some information about what's going on. This one has been relisted eight times in a row and then all of a sudden, the next week we get this six page per curiam saying, "Gosh, the Sixth Circuit really screwed this one up."

Will (02:39):

Yeah, exactly. And I mean, these are all error correction, which if the court will officially tell us they most don't do, but the reason you summarily reverse a case is because it's wrong and yet it wasn't sufficiently complicated or hard that actually required any further [crosstalk 00:02:54] arguing.

Dan (02:54):

Yeah. In theory, it should be kind of obviously wrong because if it's not obviously wrong, want to be really careful and get your amici in place and all that stuff to give you the best arguments. Yeah. And so I think this is a particularly problematic area because the court seems to have issues that it cares about, where it cares about correcting the errors. And I think that the choices the court makes here, I find them somewhat indefensible in the sense that the court seems to want to correct errors when a lower court erroneously, in its view, releases a prisoner, grants habeas relief, or denies a qualified immunity defense to a law enforcement officer, much, much less likely to go and get the directions. There's some examples, but much, much less likely.

Will (03:41):

Yeah. I agree.

Dan (03:42):

And yeah, that seems really hard to justify.

Will (03:45):

So I agree with you, but let me try.

Dan (03:48):


Will (03:48):

So I think a majority of the court thinks that in these areas, especially habeas relief under AEDPA and official liability under qualified immunity, the majority of the court thinks we have these doctrines, there are a bunch of lower creditors who don't really believe in the doctrines and so while they don't openly say so, they regularly defy us. And there are particularly judges on particular circuits who do it the most. And if the law is going to mean anything, we've got to actually keep an eye on them and not just trust them to be acting in good faith. And I think the court's right about that, isn't it?

Dan (04:19):

I think it is right that some of these cases for sure are not good applications of AEDPA. AEDPA is, for people are not familiar with this, this rule has a bunch of stuff in it. But the one that I think we're probably most concerned with in this context is the rule that federal court can't overturn a state court conviction, unless the state court did something really unreasonable. At least if it's a claim that was previously heard has to not just be legally wrong, but really, really legally wrong. And a lot of times it seems like some of these federal courts are just saying, "We disagree on the merits," in a way that's often kind of debatable and maybe even wrong and then granting habeas relief on that ground.

Will (04:56):

Yeah, exactly. And the courts that interpreted AEDPA in some merits cases to be even stricter maybe then than they have to for wrong it has to be and how much you have to defer. Yeah. And I guess, I mean, you said this, but I think we have to put a sharper point on it. I think there are a bunch of lower court opinions that are not good applications of AEDPA and not even good faith applications of AEDPA, that is there a lot of judges who think it's a bad statute, the Supreme Court has misinterpreted it and they're not going to completely go along with it.

Dan (05:24):

I think that it's true, at least in part. I think that there definitely are cases that I would say probably have to fit into that category. That said, I think there are also a bunch of cases going the other direction, not habeas cases, but criminal cases in general, where you have lower courts, maybe they're not defying precedent, but they're just not giving these cases the kind of attention they deserve. They're being dismissive to meritorious claims. And in terms of numbers, my suspicion is that that pool of cases where people are really getting their fair shake on in criminal cases that could be reviewed by the Supreme Court is probably larger than the number of cases where Circuit Courts are really not doing what they're supposed to be on AEDPA. And yet, I think it is next to impossible to get summary reversal if you're a criminal defendant, habeas petitioner. We can point to some examples, but I think it's a really, really hard.

Will (06:20):

Yeah, I completely agree. But just to be clear, so I think the problem is not so much the summary reversals in AEDPA cases, for example, it's that there aren't also a mirror image set of summary reversals of criminal convictions out of the Alabama Supreme Court, not to pick on Alabama, [crosstalk 00:06:35] I think that's what's really missing. And maybe it's because the Justices don't agree with us that there are a bunch of miscarriages of justice in those courts. Maybe it's because they just normatively don't care or maybe it's because it's harder for them to find them. I do think there is this Ninth Circuit, Sixth Circuit effect, for instance, there's circuits you don't trust. And it may be harder to build up that sense of mistrust for a State Supreme Court.

Dan (07:01):

Yeah. And there is the signaling thing of a lot of these you'll have some of the judges who disagree writing dissents from denial of rehearing en banc and sort of just doing stuff to try to put these things on the table for the justices. Fair enough, although I think that there are some that they are aware of, really attention is drawn to them, they skip over. And also if they started doing it a little bit more, there would be better mechanisms for making them aware of that.

Will (07:28):

I completely agree.

Dan (07:29):

But then that's at the habeas, I think even less defensible as the qualified immunity ones. And this is another issue that you care about. You've written another influential article on this, is qualified immunity unlawful? But even putting aside whether we like qualified immunity or not, looking at the kind of run of those cases where the court has said, "Lower court, you should have granted qualified immunity." I see a lot of cases where lower courts are granting qualified immunity that I find highly dubious. And yet those cases don't get summarily reversed and these cases where the court thinks, yeah, "I didn't really get the qualified immunity right." Those are reversed in favor of the law enforcement defendants. And I just find that completely indefensible.

Will (08:10):

So look, I agree with you, but I'm not sure we can put aside the wrongness of qualified immunity. I think if the qualified immunity were written into a statute, the way AEDPA is, maybe...

Dan (08:21):

I think there would still be an asymmetry though. Let's just say we had a statute tomorrow that said the doctrine of qualified immunity continues to exist. I still think there are a bunch of lower court decisions that I find somewhat preposterous even if you take the qualified immunity standards seriously. Gosh, you remember the one where the officers just stole thousands of dollars in cash? and I can't remember what circuit it was they were like, "Well, it wasn't clearly established that you couldn't steal money." I mean, it's like, come on.

Will (08:50):

Well, you couldn't steal money that you'd seized pursuant to a lawful warrant so it's... Look, I think these qualified immunity cases are outrageous, I think the court should have summarily reverse 10 of them. But I think part of the problem is they don't necessarily agree with us about what the qualified immunity standards should be. They summarily reversed a qualified immunity case in the other direction this term for the first time in- [crosstalk 00:09:13]

Dan (09:13):

And they had another one with Tolan v. Cotton seven or eight years ago, right?

Will (09:17):

Yeah. So that one was not, they did not reach the qualified immunity issue, so, [crosstalk 00:09:20].

Dan (09:20):

Oh right, right, right.

Will (09:20):

It's close. But this term that a case Taylor v. Riojas arising out of the Texas prison system where it's exactly the kind of thing we're talking about where the Fifth Circuit said, "Yes, this person was basically unable to eat and drink for four days while locked in a cell filled with excrement." Fifth circuit said, "Well, four days, we don't have a case saying four days is unreasonable as compared to a week." And the Supreme Court did what they should do in these cases and summarily reversed and said, "Look, come on guys, this is too much."

Dan (09:52):

Yeah. But I mean, it shows you that how outrageous that it has to be for them to care.

Will (09:57):

Yes. I can't believe I'm defending the court here, but I think another way to put it though is, I think it took the court longer than it took us to realize how much of a problem there was in the lower courts. I think what the court is doing is it's using some reversals to react what it sees as a sort of a bad trend in the lower courts where they need to send a message. And we were more woke to the trend than the Justices were, but they got there and then they actually even remanded a couple more cases in light of that case, which is like, "Let's try to send a message now." That's good. They should do that more.

Dan (10:29):

Six years ago, I filed a cert petition in a police shooting case where qualified immunity was granted on legal grounds that I just thought were outrageous and ridiculous. And I filed a petition. And we just straight up asked for summary reversal, got some good amici and they just kind of denied it. And I think that there are other cases like that where you can point to things that, or even taking the existing doctrine for granted, they're just kind of indefensible, but they don't seem to get interested enough.

Will (11:00):

Yeah. I think this is also an underlying problem with the cert process, which is the cert process as part of the summary reversal process is we actually don't have very good standards or principles for like, can you not take a case just because it's not a doctrine you like? You're not going to overrule the doctrine, but you're just not super excited about it. Can you not take a case because it's not what you're interested in? I think those kinds of things truly do affect the Justices, and it's all discretionary so maybe there's nothing wrong with that, but it seems troubling. And that's part of really being brought to the fore here. It's like, can we really have an extra dozen Supreme Court opinions on why you don't get habeas because some of the Justices have a bee in their bonnet of the Ninth Circuit and nobody cares what the Fifth Circuit does.

Dan (11:45):

Okay. So we've talked a lot about what's been going on, a very kind of bird's eye view. What's been happening in the shadow docket? What are some trends? What does the shadow docket mean? I think at this point it would be helpful just to kind of get a little normative and this has been kind of lurking in obviously the background of everything we've been talking about, but let's try to be a little bit more general and try to identify all the specific things we think might or might not be problematic about the shadow docket. And then maybe think about how one might change it if one wanted to do so. And so we could do that a lot of different ways. I have what Steve Vladeck has written in his, he gives some testimony to the House Judiciary, he wrote down a bunch of things he thought were problematic. I don't know if you want to say what you think is problematic first?

Will (12:30):

Why don't you say what you think is problematic first?

Dan (12:32):

So I'm still trying to wrap my head around this a little bit. I think what's problematic in part is they are clearly making choices that they don't explain, even if they write opinions. And I think that some of those choices they're making are troubling. And so, as you could probably tell in our discussion that one of the places where I got most concerned was when they're clearly making this sorting decision about what do we summarily reverse and what do we don't? And clearly there's some underlying principle, which is just that it's a lot worse for some police officer to be held not entitled to qualified immunity than the opposite. And that seems wrong. I mean, first of all it seems troubling that they're doing that and they're not telling us that. And actually Justice Sotomayor sometimes has started to be like, "Hey, look at this. This is ridiculous." But also, I mean, that seems like a value judgment that's wrong and also maybe kind of obviously wrong.

Dan (13:26):

Even when there's no qualified immunity, I mean, the officer is almost always, essentially always indemnified. So it's not even like the officer's paying anything out of the officer's own pocket whereas if there is qualified immunity, someone who's seriously injured or killed and this is their family trying to get compensation, gets nothing. And yet the court seems to just have made the opposite value judgment and won't tell us that.

Will (13:51):

Yeah, I agree. So I think that kind of bias, partisanship, allowing your personal views, if they're not partisan, to creep into the merits are kind of some of the worst sins and the things the Supreme Court most needs to fight against. And it's part of the problem with shadow docket. Let me just try a quick, I'm doing this off the fly, let me try a quick sort of topology. So, one thing you might care about, which I don't care about, is something that's just the appearance of procedural fairness. We should give everybody an hour of oral argument because that way everybody knows that, I don't know, they got their day in court. That's the thing you care about. I don't really care about it, but you don't care. Another thing you care about is the court getting the law wrong. The shadow docket cases don't get enough briefing, they don't get enough so the court just screws up the law. I care about that. I'm not sure how much it happens, but I care about that.

Will (14:34):

A second thing you care about is the court making discretionary decisions sort of in a way that's just on the merits problematic. So it's not so much that they're misinterpreting the statute, there is no statute telling them when to grant cert, but they're favoring some interests over others in a way that's hard [crosstalk 00:14:51] to justify on the merits. And I care about that a lot and I think that a lot of what's happening is that. And part of the reason it's hard to get a beat on that is because it's discretionary. We don't have a great vocabulary for what principles should apply to it or it's harder to say what exactly is the Supreme Court doing wrong when they favor some issues over others.

Will (15:12):

And then the last we care about is whatever it is they're doing, they need to tell us about it. And also my initial frustration with the shadow docket was partly the last, some of the second, but also the last, which is just people who are experienced Supreme Court litigators or recent Supreme Court clerks kind of know how this stuff works, and it can help you figure out how to get your state cert petition granted, or your stay application taken seriously. But even if you buy Stern and Gressman, which costs like a $1,000 on Amazon, you have a really hard time getting through it if you're just an ordinary elite lawyer, let alone an ordinary person. And so this getting the law wrong, getting discretionary decisions wrong on the merits and then telling us what the hell is going on. And I think the shadow docket involves all three, but especially misuses of discretion and not telling us what's going on.

Dan (16:04):

And now, of course, I mean, another thing that's going on, obviously, is that people just don't like the substantive decisions. And it's not surprising that at this exact moment, I would say the bulk of the shadow docket criticism is coming from folks on the Left, who don't like what the court was doing with these Trump DOJ applications and overturning a lot of lower court decisions. Now, that still could also be the problem that I'm concerned about, which is that the court is kind of not just on the merits favoring particular interests, but it's kind of giving kind of unfair consideration.

Will (16:41):

Oh, that's where I'd say if you'd have the same critique, even if the court granted cert and heard it, are given the merits and then decide that the case, then it's not really a shadow docket problem, it's a Supreme Court problem, right? So if your problem is the Supreme Court ruled in favor of the Trump Administration too often, but they were going to do it just as much in the travel ban or whatever else, then it's less of a shadow docket problem.

Dan (17:03):

What if they wouldn't have granted cert in most of those cases and they're applying a different substantive standard for whether to do extraordinary relief, that's different, right?

Will (17:12):

Yes. I agree. Then we're back to saying the court is misusing its discretion in some way that...

Dan (17:18):


Will (17:19):


Dan (17:19):

But let me just talk about some of those other things in your topology for a second. So you said: one, don't care about due process, give you a rehearing. And I think that probably has to be, I don't know if I would say it quite as bluntly as that, but it probably has to be true in a world where nobody is entitled to cert at all or anything from the Supreme Court. In a world where basically other than those random three judge district courts and random original jurisdiction, they can just deny for whatever reason they can deny because they're working too hard. And so it is hard to say that well, but then everybody should have a full hour of oral argument. Now maybe you could say, look, if they're going to change the status quo due process requires maybe not constitutional due process, but fairness requires them to do a little bit more.

Dan (18:06):

But yeah, I think that one, it's hard to get to motivated by that in a world where they can just deny for whatever reason. And they deny thousands and thousands of petitions every year. But there was another one that I thought was interesting.

Will (18:20):

Telling us what's going on.

Dan (18:21):

Oh yeah. The secrecy one.

Will (18:22):


Dan (18:22):

Yes. So that's something I, this is kind of a pet issue for me. I've been working with Maureen Levy on a paper about judicial secrecy for a long time. I know you have some views on this too, but my view is that way too much about courts are secret, and the presumption should be more openness and there's limited numbers of things that they should be allowed to keep secret, at least for a while. But there's a lot of stuff that they just keep secret kind of reflexively. And this is, the thing you said about clerks, so I think it's weird is like not only do we not know what they're doing, even some of the rules about how they do it are secret, right? When you're clerking there's this little booklet that's like, "It takes six votes to get the food in the cafeteria changed," or whatever, not that exactly, but there's different thresholds for votes and things like that. And as I remember being told that that is actually not something that's disclosed.

Dan (19:19):

I mean, sometimes it gets disclosed in an opinion where some Justice will be like, "Our normal rule is we need five votes to do this." And then everybody knows, and it goes in [inaudible 00:19:29], but they don't just put that up on the website. Like, here's our procedures, you need this many votes to do this, this many votes to do that. And I don't see why that, that seems completely indefensible to me. I know I keep saying things are indefensible, but what is the argument for that?

Will (19:43):

Yeah. I think I agree with you. I mean, I think I agree with you in the sense that look, there's some stuff with, there's no reason that they don't even want us to know these things, like how does the court want to get this information? Or what are the things the court cares about? You'd think it would want to just tell all the televangelists. I guess some of them could be things where actually Justices themselves don't agree on the standard and so it's still a secret because- [crosstalk 00:20:04].

Dan (20:03):

There's stuff that's in a manual that's like, "Here's what we do."

Will (20:07):

Yeah. I don't remember that, but...

Dan (20:08):

Okay. Well I think that's, could be you clerked a little longer ago than I did, so maybe it's- [crosstalk 00:20:16] but...

Will (20:17):

Yeah, but I agree with you. So there's a bunch of stuff like that. I'm sympathetic to some more secrecy, like I don't know that we need the Justices' papers to become public.

Dan (20:25):

You were going to write some article that clerks who disclosed anything at the court should be disbarred and executed or something, right? I think you dropped that one.

Will (20:34):

I haven't dropped it.

Dan (20:36):

Oh, you haven't dropped it. Is that still happening?

Will (20:37):

I have a work in progress, yeah, that I've never disclosed to the public.

Dan (20:40):

Okay. Do you want me to edit this out?

Will (20:42):

No, that's fine.

Dan (20:43):


Will (20:44):

We can tell people that argues that it's a violation of the rules of professional responsibility for lawyers to even attempt to get clerks to leak information that's private about the court.

Dan (20:53):

What about the clerk leaking it themselves?

Will (20:56):

Oh, I think that that's the same.

Dan (20:58):

But disbarable?

Will (20:58):

Disbarment is probably a harsh sanction, but I don't know. Maybe Ed Lazarus should be disbarred.

Dan (21:04):

Okay, that's a whole kettle of fish there. For anyone who's unaware, he wrote Closed Chambers, kind of a juicy tell-all of his term clerking for, was Justice Blackmun?

Will (21:16):

I think so. The term of Planned Parenthood was Casey, I think.

Dan (21:19):

Yeah. And a lot of people say he kind of played up a lot of things and maybe embellished to make it seem a little bit more political. But yeah, I could see arguments both ways. I do think my view, and we don't need to make this a whole secrecy conversation, but my view is that the Supreme Court has a tremendous amount of power and they have very little accountability. And I think ultimately there is some strong interest in the public understanding how they're being governed in some sense. I agree that there needs to be some period of time where you don't just leak the internal deliberations the day after the decision. I think those rationales are really diminished after a not particularly long period of time, five years, 10 years, something like that.

Will (22:05):

So I'll say I care a lot about whether the court, whether Justices do a good job, whether they apply the law well, whether or not they remain principled, whether or not they use their discretion well. So I see a lot of the secrecy concerns as a means to that end. And sometimes I think secrecy helps the Justices do a good job so the Justices are more willing to have candid conversations with each other and with their clerks, if they know that they have control over whether that stuff becomes public. But other times it's the other way around. So we should at least know how the Justices voted on stuff that's important, because being forced to publicly take a side one way or the other is part of what lets us be able to tell whether we're being consistent.

Dan (22:41):

But also knowing how decisions are made is also can be relevant. Like if it turns out, somebody says Justice X is flipping a coin every day and he's just saying, "Hey clerks, tell me whether it's heads or tails," and that's how cases get decided. I'd want to know that, right?

Will (22:59):

I would want to know it, but I actually I'm worried that they'll have the wrong incentives.

Dan (23:04):

The incentive would be to not decide cases by flipping a coin, right?

Will (23:07):

No, the incentive would be to flip a coin and not tell your clerks. So the thing is, if you ask dumb questions to your clerks that reveal that you don't totally understand an area of law, then the word could get out that you don't understand some area of law, but if you flip a coin in your own chambers or just pick the one who seems conservative to you in your own chambers and don't tell anybody why, then we'll never know. So we want to encourage Justices to talk through the things that concern them and try to learn more.

Dan (23:33):

Yeah, I guess we have to do a balancing though. It's like, how much are we going to deter justices from asking the occasional dumb question? I honestly think not that much versus how much are we to enable people to kind of see what's going on, maybe understand maybe it turns out some of the Justices act in a much more partisan way inside chambers than others do. I mean, that's all relevant.

Will (23:59):

I agree with you about the balancing test.

Dan (24:00):

And so not sure you're obviously right about where the balance lies. Okay. But, so yeah, so that one, the secrecy, that does carry some weight with me. Getting stuff wrong, I mean, maybe not wrong on the merits as much. I mean, I don't know how much, that's an open question, which is how much of these are cases where they would actually reach a different outcome if they got full briefing? Maybe not that many, but definitely there could be ones. I think there are ones where actually the more they say, the more they might muck things up, right? The Tandon case being maybe the biggest example we've talked about where it's like, did they just make some radical change to a free exercise jurisprudence? And maybe if they'd had another two weeks to think about that, they would have not done that or they would have come up with a narrower way to decide it or...

Will (24:49):

This is the one where we're the most conflicted and it's a question about Supreme Court opinions generally, it's on the one hand, I think it's an important, their first duty is to do no harm. So when they, in the course of ruling in one area just say some stuff that accidentally changes how bankruptcy law works in some way they didn't fully appreciate, that's a big problem. On the other hand, if they have deep misconceptions about how some area of law works or some area of doctrine they're doing something really weird about, they should tell us.

Dan (25:18):

Because they might just be doing that without writing opinions and just- [crosstalk 00:25:21].

Will (25:21):

Right. Yeah. If their view is actually the Smith test doesn't really apply or it applies in this weird way that people didn't really know, we'd probably rather they tell us than not.

Dan (25:31):

Yeah. Well, so here's one of Steve's concerns he says, "One problem is that they're prematurely and unnecessarily resolving constitutional questions. They're deciding these constitutional questions early in litigation, maybe they would turn out to be unnecessary."

Will (25:45):


Dan (25:46):

And so maybe some do that, that maybe they decided now and actually this is an issue that if we didn't have to do this on the shadow docket might not actually percolate up to the court for a few years or something. And that can change stuff.

Will (25:59):

Although again, I mean, I'm not sure if prematurely is a problem, unless it means they're deciding differently they otherwise would.

Dan (26:07):

Yeah. I mean, I guess it depends a little bit on whether you care about this thing that pops up in Supreme Court opinions about cert percolation, we should allow issues to percolate in the lower courts. I've always thought that was a little overrated because they'll let it percolate and then they'll just decide it in some way that no court of appeals decided. And I don't even really understand it as a metaphor like it's a coffee machine. I don't get it. And I don't see why that makes things better.

Will (26:34):

Right. So I think sometimes it does, sometimes it's like this is a weird area of law and right now it seems like there are two unsatisfactory sides and maybe if you let it percolate to [inaudible 00:26:45] or something. Or one of the 20 judges ] in the lower courts who  is really smart. We'll come up with some third approach and that would be useful to get. That makes sense to me. Otherwise it's just like, look, it's a statute either that means X or Y and we're going to have to figure it out. We're not going to get a lot of useful information by letting lower courts decide.

Dan (27:01):

Yeah, and it's often, it could be 20 years, right? Between when you get a good vehicle and then you'd say let's further perculation and then it floats around for a while, there's other cases, they're not great vehicles and then finally there's another one. And I mean, a lot of time can go by.

Will (27:16):

Right. Yeah. I think if the court feels like it understands this area of law and knows what's going on, then there's no point whether they percolate. If they're really confused what's going on, then maybe they should let it sit for longer.

Dan (27:26):

Yeah. Okay, here's another one, I thought this was interesting. I hadn't really thought about it this way. Steve says, "Well, maybe there's a problem that this is actually distorting the court's workload." That they're doing more shadow docket stuff and they're doing fewer merits cases. And I don't know if we have enough of a length of time to be confident about that, but he sort of notes that there's been more shadow docket activity and there's been decreasing number of merits cases. Do we care about that?

Will (27:55):

I feel it's hard to care about that in the abstract. I mean, I don't know. I mean, I realize everybody cares about the court's declining docket, but I mean, there are cases I think the court should take.

Dan (28:04):

I think they should take no cases for a good few years in my view.

Will (28:08):

Well, there you go. But I don't want the court to take cases. I don't want the court to take the wrong cases. I have a view what cases they should take they're not taking, but it's not like I'd be happy if they took other stuff.

Dan (28:18):

Yeah. And I guess a larger problem here and trying to talk about the shadow docket is, as you said, the beginning of our discussion about all this, you said, "Look, it's this catch all term that includes all this stuff that isn't the regular decisions, merits decisions." But what that means is because it's not one thing it's also not likely to be one problem. It's likely to be a bunch of different areas, some of which were problematic, some of which were really problematic, some of which are not problematic. And so it's hard to say there's one problem that applies to everything or that there's one fix that would make it all better.

Will (28:52):

I completely agree. Right. I mean, the court is always going to have to decide last minute election or last minute execution cases, unless we get rid of the death penalty and we just didn't know how to do that better other than worse.

Dan (29:03):

Yeah. Okay. So, a lot that we talked about there. Any kind of closing thoughts? Sort of have your views of the shadow docket changed significantly since you wrote your article at this point, sorry to date you, but nearly a decade ago?

Will (29:23):

I guess I now do think the shadow docket may get an unfair rep. I mean, look, at the time I wrote the article my main thought was just like, it's weird the law professors don't talk about this. This is a major part of what the court does. There's a lot going on here. And there's a lot of weird stuff going on here. I do think now the court has done a better job than it used to. I still have lots of complaints, but it's clearly paying more attention to this area than it used to. And I do think people criticize what the court does there too much. Yeah, I think I may have unreasonable expectation of the court.

Dan (29:52):

That we should be more worshipful of the Justices and their divine wisdom. [crosstalk 00:29:58] Then we'll get it endorsed on that.

Will (30:04):

Right, no, just that, I mean, we should understand the situation the court is in. I think most they're trying to do something hard and in good faith and they don't always do a good enough job and they should do a better job, but I do think that's fundamentally where they are.

Dan (30:20):

Yeah. Although talking about whether the court is acting in good faith, I mean, I think very few people think that the Justices that they disagree with are acting in good faith.

Will (30:31):

I think all the Justices are acting in good faith.

Dan (30:33):

Well, that's interesting. Sometimes I do, sometimes I don't. One concept that you mentioned to me a while back when we were talking about partisan criticism in the Supreme Court, was this idea of the ideological Turing Test, which is one of these rationalist ideas, right? From these smart people that just try to think about how can we think about things really, really clearly. But I think it's a useful for trying to grapple with what to think about this court. And I think it's probably useful for people like me that don't agree on a bunch of stuff normatively and legally with the current court to at least try to do, even if it's not going to make me agree with them. Can you just explain that?

Will (31:13):

Yeah. So the regular Turing Test is the idea of a computer that can communicate so well you can't tell the difference between it and a human being, the ideological Turing Test is a conservative or a liberal who can convey the argument of the opposing side so well that you don't know that it's not their view.

Dan (31:31):

So that someone of the same persuasion, so a liberal who could pretend to be a conservative in a way that conservatives would believe?

Will (31:37):

Yes, exactly. Or I think in theory that everybody could believe. So, I mean, I actually test this now in my law school exams sometimes, I say, "Here's a Supreme Court case, or here's a thing, write the argument pro and con, and I'll grade you on whichever one is worse."

Dan (31:52):

That's awesome. [crosstalk 00:31:53] That sounds like a hard thing to grade, but that's really cool.

Will (31:57):

But I think that is because ultimately you have to be able to ask yourself what is Justice Alito think he's doing in these shadow docket cases? And I doubt he thinks he's, I mean, there's lots of things we could say of what he's doing that aren't what Justice Alito would say. [crosstalk 00:32:15].

Dan (32:14):

I guess, what do we think it means to say someone isn't proceeding in good faith when we're talking about a judge? That they're rubbing their hands and saying, "Ah-ha, I'm acting in an unprincipled way." I mean, I guess we have to figure out even what that concept means.

Will (32:32):

Yeah. Fair enough. So I think we usually mean something like their real reasons are not their stated reasons and the reason they're not stating their real reasons is because they recognize how widely condemned their reasons would be if they revealed them. I think that's, I'm not sure we thought it through, but that's usually what they... So the imagined lower court judges whose real reason in granting habeas is, "I hate AEDPA, I think it's unconstitutional, but I can't say that because I'm not allowed to strike it down." Or if Justice Alito's real view was, "People who get shot by the cops have it coming, but I can't say that because I recognized that I'd get in big trouble."

Dan (33:12):

Yeah. Although it could be that their legal ideological views end up basically being the same as that. It could be that Justice Alito is very principled to his legal views and his legal views are that everyone in criminal defendants and suspects are always guilty and deserve what is coming to them. That's kind of like a legal, ideological view. I mean, because that is the kind of principle I kind of extract from his jurisprudence.

Will (33:39):

Yeah. Again, I think accusations of bad faith have a mix of duplicitousness. So I mean, Justice Alito has said a bunch of things of what he thinks is going on here. And if we think there's something more going on that he's not telling us, and he's not telling us because it's bad or because he knows we would think it's bad.

Dan (33:53):

Yeah. Or maybe people think, okay, the conservatives don't really believe in this argument in Sebelius, this is something that's been jury rigged to take down this popular, this democratic.

Will (34:05):

Their real view is this is socialized medicine and a signature accomplishment of the Obama Administration who we hate. And they're not telling us those things.

Dan (34:13):

But I think good faith can often be functionally indistinguishable because what will happen is people will develop arguments and then motivated reasoning. You're like, "Oh, that sounds pretty persuasive." And then you're kind of off to the races, right?

Will (34:26):

Sure. I mean, or even you can have your views non- motivated reasoning, but the reason you got picked to be a judge is because politicians like those views, right?

Dan (34:36):

Yeah. That's true too, although maybe that is less troubling because we don't have a moving goalpost in that sense, right? Does that make sense? In that world, you get somebody who has a certain set of views that are the views that are desirable in the law in 2005, but then kind of doing a bunch of new things.

Will (35:06):

I don't know. Yeah. I'm not sure whether there's... So imagine somebody who became an originalist subconsciously because it led to conservative results and somebody else who became an originalist just because they were persuaded by a bunch of law review articles and it happens to lead to a bunch of conservative results. And then they both get picked to be judges and they both rule the same way. [crosstalk 00:35:27].

Dan (35:27):

I guess to my suspicion is that the first person would be more malleable in cases with political implications. Because at least when there are arguments both ways, which they're basically always are even working within any particular constitutional modality. There are arguments both ways. I mean, sometimes they're better or worse, but like in Heller, right? They're not terrible originalist arguments that it's not an individual right. Maybe you think they're terrible.

Will (35:56):

I think the arguments in the dissent are terrible, but there are good arguments that the majority is wrong.

Dan (36:00):


Will (36:01):

That's something else that's right. My understanding is, yeah, that's another conversation.

Dan (36:05):

Well, at the very least, my point there was just that it's hard to say it's so decisive in a case like that, that someone could in good faith or whatever, as we're using that term, I think even with originalist conceptions. I don't think they're necessarily compelled to reach the answer that the court reached there.

Will (36:22):

Yeah. I agree. So maybe this is really showing us just when to figure out what actually upsets us about the Justices we disagree with, right? Is it we want to feel like we still have a chance to persuade them? Which could be different or is it going to feel like they're reaching that result for the right reasons or is it just they're wrong and that's always a problem? Because those could all go different ways.

Dan (36:43):

Yeah. I think it's not just that. I think it's maybe also maybe you're worried about worst case scenarios, right? The person who I think is just the pure partisan, right? I worry about that person because I worry that let's say you have the Trumpian election challenge, right? But that has a little bit more wind beneath its sails. And the person who's just motivated by partisanship is going to find a way to make that happen, to rule for their preferred political side. Whereas someone who is not doing that, at least even consciously maybe is less likely to do that.

Will (37:17):

Yeah, that sounds right. In that sense as long as somebody is now applying, let's say originalism, even if they got there for partisan reasons that might not bother us that much, as long as they really got there.

Dan (37:30):

Yeah. I don't know if I'm ready to endorse that or not. I don't want to accidentally agree with something you said and then become an originalist. Although I wonder whether that would have been a wiser career move, might be a judge right now.

Will (37:42):

Should we put a disclaimer on this podcast that anything crazy I say you presumptively disagree with?

Dan (37:47):

I don't know. I agree with a lot of crazy stuff.

Will (37:49):

I know, but...

Dan (37:50):

And I say generally crazier stuff than you say. So it might be that presumptively I disagree with the less crazy stuff that you said.

Will (37:56):

Fair enough.

Dan (37:57):

But I don't know. I think that the disclaimer should be, I don't know what I believe and don't believe that I believe anything until I say it at least four or five times. Okay. So shadow docket, a lot going on there, lots of things to think about it. I don't know if there's anything else we want to say, I don't know if you have any fixes you'd want to talk about, or we've just, I think we've covered the territory. I think this is going to continue to be an issue people are talking about. Maybe Congress will actually try to do something. House Judiciary had a hearing earlier this year, maybe Congress will try to pass some legislation changing it in some way. I mean, you could imagine a lot of possibilities, require disclosure of votes, change the substantive standard for a state. But my guess is the most likely thing is just nothing will change legally and people will keep talking about it, but we'll keep shedding a little bit more light on the shadow docket, which is probably salutary.

Will (38:50):

Yeah. I agree. Thanks for listening. Please remember to review us on Apple or wherever it is you listen to podcasts. We're really eager to get this thing off the ground and getting early reviews is really helpful at getting gears on the show.

Dan (39:10):

And thanks to the University of Chicago Constitutional Law Institute for supporting the show.

Will (39:14):

You're welcome.

Dan (39:15):

Cue music.