As part of MoFo’s summer associate programming, MoFo recently welcomed Professor Stephen Vladeck to discuss his New York Times Bestseller book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Joe Palmore, MoFo’s Appellate and Supreme Court practice co-chair and managing partner of the Washington, D.C., office, hosted a fireside chat with Professor Vladeck, followed by a book signing.
Professor Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and clerked for court of appeals judges on the Ninth and Eleventh Circuits. He has argued multiple cases before the U.S. Supreme Court, as well as other federal courts, both civilian and military. He is also a co-host of the award-winning National Security Law Podcast and is CNN’s Supreme Court analyst.
During the discussion, Vladeck explained that he uses the term “shadow docket” in his book in the same context as legal scholar William Baude, who coined the term in a 2015 article for the New York University Journal of Law & Liberty. In summary, the term refers to everything the Supreme Court does other than rulings it hands down in argued cases on the merits docket. “By volume, those rulings are well less than one percent of what the Supreme Court actually does,” Stephen said. “The Supreme Court does most of its work through unsigned, unexplained orders. And although many of those orders are completely banal, a number of those orders can be important and can have really significant, real world, and sometimes even doctrinal, effects.”
Vladeck’s argument mirrors the subtitle of his book: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. While the phrase “amass power” refers to the Court’s discretion over its docket through certiorari, “undermine the republic” refers to how it has overseen election and other significant disputes outside its merits docket. Vladeck described a number of the Court’s shadow docket actions in election cases as inconsistent and seemingly explicable based only on their partisan valence. “That’s where I think we get to the harshest criticism,” he said. “When there’s no throughline, when there’s no pure and substantive principle that explains why the court is ruling the way it does, now it looks like the justices are playing political favorites.” These behaviors, Vladeck explained, have undermined public perception of the Court’s neutrality.
Throughout his book, Vladeck argues that everyone, regardless of partisan alignment, should care about the Court’s actions. “We need a Supreme Court that is at least widely perceived to be legitimate,” he explained. “Not because it’s going to do things we agree with, but because a court that is perceived as legitimate has the ability to serve its role in our constitutional democracy, which is standing up to tyrannies of the majority.”
Though Vladeck feels that the best solution is to amplify criticism of the Court’s behavior, he did add that there are other ways to address the issue. “The lowest hanging fruit would be if the Court would just commit to providing a modicum of explanation at least when it grants emergency relief,” he said. “When the Court is taking the affirmative step of upsetting the status quo, of doing something to suspend the effect of a lower court ruling or to enjoin action that lower courts refuse to—the full Court could take it upon itself to commit to writing.”
Along with potential remedies, Vladeck added that lawyers have a special obligation to defend the importance of process. “If we’re trying to think about what separates judicial power from other forms of political power, I think it’s the notion that the courts are acting judicially that we have to be dying on the hill to defend,” he said.
“I’m thrilled that Professor Vladeck was able to join us for this fascinating discussion, and I’m grateful to our summer associates for asking such terrific questions,” Palmore said.
Learn more about Professor Vladeck and his book.
