continues. host: good morning. we are back with university of texas law professor stephen vladeck, he will be discussing his new book called the shadow docket about the supreme court's increasing use of emergency action to change law without public hearings or justifying their decision in a public manner. steve, good morning. guest: good morning. thanks for having me. host: thanks for joining us. let's start by you explaining what is the shadow docket, and where does this name come from?

guest: when we took up the supreme court, we took 60 to 70 big, fancy positions that we get each term from the supreme court, whether about abortion or affirmative-action. these long signed, thoroughly explain decisions that we may agree with or disagree with, but that we have lengthy explanations for. it turns out it is only about 1% of all of the decisions the supreme court hands down. 99% of the rulings of the supreme court hands down by volume are these unsigned, unexplained orders that reside in obscurity that are publicly accessible but not really understandable. the term shadow docket was coined by a conservative university of chicago law professor in 2015 to capture that other part of the courts work. an umbrella term to suggest,

over here where we are not paying attention, there is a lot of stuff going on that can be significant. host: how is it different from the supreme court's production of merits docket? let's start off. explain with the merits docket is and why the shadow docket is so different. guest: the typical case, whether it comes from a state or federal court, by the time it reaches the u.s. federal court, we have had years of litigation. parties have had multiple opportunities to be heard. we have had testimony, effectual record. there is the opportunity for friends of the court to participate. by the time the justices are handing down a decision on the merits docket, it has gone through usually two rounds of the supreme court where there has been oral arguments, lots of briefing, every possible consideration has been fully vetted. that is the norm. when the supreme court issues and unsigned, onyx plane order, it is usually come without the

supreme court having heard argument, without an opportunity for everyone to have been heard. especially when someone is asking the supreme court to intervene earlier than usual, a so-called emergency application where let's say i lost and a lower court and want the supreme court to let me keep doing the challenge while the case works its way through the court, now i am asking the court to step in without the normal amount of briefing or litigation in the lower courts. a typical ruling on the shadow docket comes with a lot less process. it comes with less transparency. it often comes a lot faster. for us, the public, it is harder to figure out why the supreme court ruled the way it did. last month, the supreme court's stay in a case challenged the fda's approval of mifepristone medication abortion. the supreme court put on hold a

texas judge's ruling that would have blocked access to per stone on a nationwide basis -- if a per stone on a nationwide basis. they basically preserve the status quo had no expert nation. we do not know why the justices were to satisfied with the lower court ruling. that has become the norm in all kinds of high-profile disputes from trump administration immigration policies state covid mitigation measures to biden administration policies and someone. that is what the book is trying to do. the book is trying to introduce to folks who are not necessarily the closest of supreme court watchers why these technical, procedural rulings can have massive, real world impacts on all of us. host: we are talking this morning with the university of texas law professor steve vladeck about his book. i want to go ahead and give the

numbers out one more time, because we want you to start calling in with your comment about the supreme court. if you read the shadow docket or your questions for professor vladeck, that number is (202) 748-8000 if you are a democrat. if you are a republican that number is (202) 748-8001. if you are an independent, (202) 748-8002. if you would like to text that question or comment, the number is (202) 748-8003. make sure you include your name and phone number. so, steve, you have been tracking the increase of shadow docket decisions since 2017. you have given us a recent example. can you give us some more examples of cases that really stand out as a problematic use

of these more private, secretive ways of making decisions? guest: 2017 is an infection point, not because the supreme court had never had emergencies before. as long as there has been a supreme court, there has been a need for some kind of expeditious review in a small set of cases. what really changed in the mid- 2010's was the justices were being asked to and agreed to use these kinds of emergency orders in ways that had nationwide policy indications. a couple of examples, president trump's border wall, folks will have different views about the policy wisdom of the border wall but different lower courts had blocked the construction of the border wall on the ground it was unlawful. the supreme court through and unsigned, unexplained stay, allowed president trump to build the border wall, even though the court would never actually weigh in one way or the other on whether it was legal. we saw that for a number of

trump era immigration policies. 2020, we saw covid mitigation policies in new york and california that the supreme court blocked after lower courts had refused to block them again with either no or very little explanation about exactly what was problematic about these measures. all we know is that the justices thought some of them were interfering with religious liberty in ways that actually were not -- were novel interpretations of the constitution's protections for religious liberty. president biden's vaccination mandate, the occupational safety and health administration's mandate that large employers require their employees to vaccinate or get tested for covid started in very, very late 2021. that was blocked by the supreme court through a unsigned order. congressional district maps and alabama and louisiana that lower courts had said were unlawful in violation of the voting rights act through unsigned, unsigned

orders in early 2022. the supreme court allowed those states to use those unlawful maps which had a direct effect on the 2022 midterm elections. anyway you look these days, we see big impacts, really significant impacts from these outside, on explained orders in the supreme court and in context in which there is not necessarily a coherent, neutral, legal principle that explains why the court intervening in case a but not case b in which at least appearances sometimes suggest the most accurate predictor of how the court is going to rule in one of these disputes is the partisan valence of who wins and who loses, republicans or democrats. that is not what the justices intend, but it is a really bad look that the absence of any justification, the absence of any rationale reinforces. we are supposed to think when we look at the supreme court, one

would think about why we follow the supreme court, the central principle is that the course agenda missy springs from its ability to provide principle justifications for decision-making. we may not all agree with the principles that the justices are invoking and relying upon, but hopefully, we will at least agree they are principles. the problem of the shadow docket is when are the courts are going to use these unassigned, unexplained release in ways that have massive effects, there is no principle to debate, no principle for us to accept as the justices. that is why this has become such a problem. host: so, you clearly are a critic of the use of this shadow docket. in 2021, supreme court justice samuel alito responded to that criticism of the shadow docket. i am showing an associated press

article from that time. i also want to pull up an excerpt of some of the --some of his criticisms. this was during a speech at notre dame university. justice alito said in part, "my complaint concerns all the media and politalk about our nister shadow docket. the truth of the matter is, there was nothing new or shadowy about the procedures we followed in those cases. it is hard t how we could handle mosgency matters any difly. the sinister tadow docket has been used totray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way. in this -- this portrayal feeds unprecedented efforts to intimidate the court or damage

it as an independent institution." that was justice samuel alito in 2021. so, what would you tell justice alito to say there is nothing new or nefarious about the use of the shadow docket? guest: this is why i wrote the book. the book is basically an effort to argue and prove through voluminous material that what the supreme court has been doing over the last five or six years is both new and nefarious. i will start with the new. what is new is that the court is intervening more often than ever before. it is intervening in context in which before 2017, and almost never did to directly adjust and affect statewide or nationwide policies. not so long ago in the 1980's, 1990's, to thousands, the emergency docket was almost inclusively about last and it death penalty appeals --

last-minute death penalty appeals. the justices are treating these decisions as precedents. and yelling at lower courts for not following unsigned, unexplained decisions. that is new. we have never seen impacts like this before where these kind of emergency rulings are the difference between whether abortion was going to be available in texas between september of 2021 and june of 2022. the newness i think is the easiest thing to prove. for nefarious nets, that is in the eyes of the beholder. if you look at the whole body of the courts decisions and see across that body how the courts interventions to protect from policies but not biting policies, to block covid mitigation measures in blue states but not read states, really smacks of the kind of partisan political behavior the justices are so often criticized for. i think there might be neutral

justifications for any one of these rulings. the problem that i think becomes crystal clear once you put them all in the same place in the book is that the overall pattern is what is so problematic here. one example, justice amy coney barrett gave a speech at the ronald reagan presidential library in april 2022 were she said with an eye toward controversial decisions that she knew were coming down on the merits docket, dobbs, the approach and case, -- the abortion case she said do not just listen to the media and how they portray our rulings when deciding if they are principle or not. read the opinion. two days later, justice barrett is the decisive vote in a 5-4 ruling that puts back into effect a controversial trump era environmental regulation that actually might allow for more pollution of navigable waterways in which there was no opinion to read.

part of what i think justice alito gets wrong about the critique of the shadow docket is, it is not just progressives trying to criticize conservatives. chief justice john roberts has been one of the critics. it is, the complaint is not about the bottom lines in these cases. the complaint is about the process the justices are using to get there. when we are talking about how the court functions as an institution, the prophecies it follows, that ought not to be partisan at all and that we, the justices as much as their critics, ought to be invested in the court looking like, acting like, behaving like, it is handling these decisions in an aboveboard manner. the problem when you look at these cases the last five or six years, it is hard to come away with that impression once you put them side-by-side. host: all right. we are talking with university of texas law professor steve vladeck. we are going to go to your phone

calls right now. as a reminder, (202) 748-8000 free democrats. republicans, (202) 748-8001. independents, (202) 748-8002. our first caller is mark in asheville, north carolina on the independent line. what is your question or comment? caller: i generally agree with professor vladeck's concern about the shadow docket. the example of the antiabortion drug decision in texas is actually a different kind of problem and i do not think the supreme court needed to articulate that concern. here we have another problem in the judicial system, which is one justice in one court in amarillo, texas takes a nontraditional view of saying that the fda, a federal agency, did not have the basis for proving the drug and had the

supreme court not stated that, that would have been the law across the country, which is a far bigger problem. i realize that exception to the general concerns that you voiced about the shadow docket. i just wanted to point out i think that what the supreme court did, which is debatable on whether they should have, i think pretty clearly the justices were concerned that an opinion by that texas judge, which was not well reasoned, did not really support what he was attempting to do, they needed to do something to prevent that from going into effect from across the country. host: your thoughts? guest: this is the nuance i think is lost by some of the more superficial reactions to the book. not in mark's question, but by others. in the mifepristone case, i

agree it was incumbent on the supreme court to intervene, to stage a ruling. mark, the difference is, it would have been much better in my view if, because the court was interviewing just a finely -- justifiably in my view --we have a good example of that. this week, we had oral arguments in the appeals courts where it looks like the panel that heard the appeal is leaning toward affirming his decision even though it has been blocked by the supreme court. if the supreme court had offered a couple of sentences saying maybe we do not think the plaintiffs have stand in, this lawsuit falls outside the statute of limitations, we do not think there is a merits claim here, that could have gone a long way toward informing the parties, illuminating the lower courts in a way they could have cut off what i think going to be

more questions and decisions going forward. mark, i think we are on the same page on the bottom line of the mifepristone case. if the justices are