Image: Dr. Stephen Vladeck
In his 2023 book The Shadow Docket, University of Texas law professor Stephen Vladeck explores the underside of Supreme Court rulings, many of which have been under severe attack by huge numbers in the past two years. At UT Austin last night, Vladeck explained for an audience the basis of his approach to the law.
“I think part of the agony that lawyers go through in taking on hard cases is balancing the importance of having someone represented by counsel with the effect of what would happen if they did. It seems to me that in a world in which we are indifferent or oblivious, to even very happy, with the negative effects that our litigation produces is a role in which we are very dangerous as lawyers. I was brought up in a family of lawyers – I’m a third-generation lawyer – and I was brought up to believe the law is supposed to be a means of not a pursuit of truth but a pursuit of justice. Truth is for people higher. It seems to me we can have reasonable differences about what justice is, but I get very worried when you start using the laws in ways that might advance our short-term interest, our religious beliefs, or might advance our moral convictions, but permanently harms others. Anyone who doesn’t think very hard about those consequences is not doing what lawyers are supposed to do.”
In his book, Vladeck claims that so-called shadow docket orders from the Supreme Court, which are both unsigned and unexplained are “in defiance of the statutory limits on the Court’s power.” It is not just Vladeck who is ringing the alarm bells on this issue. Supreme Court Justice Elena Kagan agrees. Vladeck writes that “for those who care about the Court as an institution, it is hard to look at the religious liberty cases in contrast to the Court’s nonintervention in other contexts and disagree with Justice Kagan’s September 2021 dissent from the Court’s refusal to block the Texas abortion law.” In her dissent, Kagan wrote that “the majority’s decision is emblematic of too much of the Court’s shadow-docket decision making – which every day becomes more unreasoned, inconsistent, and impossible to defend.” Vladeck makes a convincing case that the current Court uses the shadow docket to help Republicans (almost all of whom, I will note, are going to vote this November for someone who wants to suspend the Constitution and end democracy in the United States).
In his talk at UT, Vladeck made it clear that Justices now feel emboldened in ways that have not in the past, because they are confident there will be no personal consequences. He pointed to a “remarkable” interview Justice Alito recently gave to the Wall Street Journal where he said “I realise this is a controversial position but I’m willing to say it. No provision in the Constitution gives Congress the power to regulate the Supreme Court.” That is just one example, Vladeck said, “of behaviour from the current Court that suggests the justices are not really looking over their shoulder. They are not worried about Congress responding to a decision adopting an implausible interpretation of the Constitution, or impeachment investigations or Congress coming after their budget. In the first 175 years of the Supreme Court it was constantly being nudged by Congress: the Court was in the Capitol until 1935 and Congress used to control the Court’s docket until 1891.”
In his appearance at UT, Vladeck made the case that “the notion the Supreme Court is supposed to be completely unaccountable is completely inconsistent with the system of checks and balances. A world in which the justices don’t have to worry about writing down their reasons for their decisions, about who they’re hanging out with, about what kind of gifts they’re accepting, about how they deal with statutes they don’t like, is a world in which we don’t have an accountable court doing its job.”
His 334-page book goes into great detail about the Roberts Court. I found one of the most damning conclusions in the book to be this one. “In order after order, the Supreme Court gave the Trump administration most of what it wanted without endorsing principles that the justices would be bound to apply to future presidents, so that the justices could (and ultimately did) refuse to provide the same relief when a Democratic president [Biden] took office.” To use a legal term (which Vladeck does not do), it is clear the highest court in the land has been suborned to advance Republican policies. If the great experiment that is the Unites States falls, a good share of the blame will rest on the shoulders of the so-called Conservative justices appointed by DT and George Bush.
The Shadow Docket is by Basic Books. It lists for $30.