Chapter 1: What is the main topic discussed in this episode?
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From the New York Times, I'm Michael Barbaro. This is The Daily. For the past decade, the Supreme Court has relied on a rushed and secretive system to make major rulings on everything from immigration to presidential power. Now, for the first time, a Times investigation brings to light the precise moment when that system began.
Today, Jodi Kantor and Adam Liptak take us inside the five days that we made the Supreme Court. It's Monday, April 20th. Jodi, Adam, together at last in one episode of The Daily.
Thank you for being here. Great to be with you.
It's good to be here, Michael. So you two joined forces for an investigation that seems to begin with a genuine curiosity, which is what are the origins of the Supreme Court's shadow docket? So tell us why you were both drawn to answering that question.
It's a pretty common sense question, Michael, because if we look at the court's rulings, they are doing an enormous amount of work on the shadow docket. These are really important rulings that bypass a lot of the time-tested steps of the court. So part of what we're asking here is, let's go back to the beginning. How did the court start doing this? Where does this come from?
Adam, I know we've talked about
on the show about the shadow docket quite a bit. But just remind us what it is, and more importantly, how, as Jody just said, it bypasses the time-tested steps of the Supreme Court.
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Chapter 2: What is the rushed and secretive system used by the Supreme Court?
The shadow docket short-circuits all of that. It happens in a very brief period of time on thin briefs, no arguments, no in-person deliberations. It gives rise to rulings with scant or no reasoning at all.
And over the past 10 years, this has really become a major part of the court's business, including in some decisions over the past year or so that have awarded President Trump enormous leeway and power.
Increasingly, the court has turned to this shadow docket.
This is an exponential increase in the Supreme Court's use of the shadow docket, more than anything we have ever seen before. They've used it 20 times so far this year, and the year's not even over yet. It's insane, the shadow docket.
And what critics have worried about is they've said... The race to create fait accompli.
is changing the speed and rhythm of all of these cases.
Why is the Supreme Court not moving at its usual careful, deliberate pace?
There's no problem in the abstract with the idea that the Supreme Court gets emergencies.
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Chapter 3: When did the New York Times investigation reveal the origins of the shadow docket?
The problem we've seen in the last five or six years is the way the justices are intervening. And also... You get this kind of back-of-the-envelope reasoning from the justices, two, three sentences. Those decisions are not reasoned decisions. They don't tell us why. I mean, five paragraphs doesn't tell us why. Why is the Supreme Court not providing any reasoning for such major decisions?
But the emergency docket or shadow docket is a dangerous thing. You run to the court, you don't have full briefing, you don't have full argument.
So critics have been concerned both about the quality of the rulings. Is it possible to issue a really solid ruling in such a shortened process? And also the lack of communication with the public.
Right, because these rapidly reached, barely explained rulings that emerge from the shadow docket raise a really important question. Is the country's highest court rushing to rule based on, because we don't really know, gut instinct, personal peak, partisan instinct, all the things that a slow, deliberate, judicious system is meant to avoid?
We don't know. Right. Well, defenders of the shadow docket, the emergency docket, will say a couple of things. One is that these kinds of orders have a long history, and that's true. The court has often interceded when it needs to move very fast, like in a death penalty case when someone's about to be put to death, or an election dispute where you need to know by Tuesday what the answer is.
And also occasionally in discrete areas like abortion, the court has issued emergency orders, but it's not used the emergency docket to address major national policy initiatives. The second thing I'd say, or the defenders of these orders would say, is that they're temporary. They're not meant to conclusively resolve the case.
They're just holding the status quo while the case moves to the lower courts, comes back to the Supreme Court. So they're nominally temporary, but as a practical matter, very often they're not only consequential but conclusive, finally resolving the matter.
Because if the court says you can deport someone or you can deport hundreds of thousands of people or you can withhold aid money or you can fire thousands of people.
You're talking about shadow docket cases of the Trump era.
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Chapter 4: What questions motivated Jodi Kantor and Adam Liptak's investigation?
in 2016 arising from President Obama's Clean Power Plan. The Clean Power Plan, you may recall, was Obama's attempt late in his second term to do something about climate change. He'd failed to get legislation through Congress. He instructed the EPA to issue regulations, and these regulations would fundamentally shift the American power system away from coal and toward cleaner sources of energy.
This, of course, drove industry crazy and red states crazy, and they challenged it, and that's not surprising. And they go to the D.C. Circuit, and they ask for two things. One, their big ask is to please hold this Clean Power Plan unlawful, unauthorized by Congress. But second, they ask, in the meantime, please halt it. Don't let it go into place. Freeze it for the time being.
while the litigation goes forward. And the D.C. Circuit says, on the first point, we'll set it down for a quick argument and we'll get ourselves in position to give you an answer on whether the program is illegal or not. On the second thing, though, we're not going to pause it. We're going to let the program start. And then the challengers, the states and business groups, do something unusual.
They go to the Supreme Court and say, before any lower court has considered the lawfulness of the Clean Power Plan, they say to the Supreme Court, please halt this. Please freeze this for as long as it takes for this litigation to go through the D.C. Circuit, back up to the Supreme Court. In the meantime, the Clean Power Plan should not be happening.
And everybody involved in the case knew that this was an unprecedented request.
And, Jody, this unprecedented request by those who do not want the Clean Power Plan from the Obama administration to survive arrives at a Supreme Court, if memory serves, that's pretty evenly split at the moment.
Correct. It's a 5-4 court that leans towards Republican-appointed justices. But people from that era say the Supreme Court was really different back then. It was alive with debate. Justice Anthony Kennedy was a Republican appointee, but he was also the swing vote. And somebody from that era called him a, quote, persuadable person. You never knew exactly which way he would come out.
And just before this, he had said yes to gay marriage.
Right. Even though he was a Republican appointee, he ends up being the somewhat surprising decisive vote in that case. All to say, this is a unpredictable Supreme Court where a lot of things are possible.
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Chapter 5: How does the shadow docket bypass traditional Supreme Court processes?
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I bet you won't. So Adam and Jody, we're now in the phase of this story where the justices are exchanging these memos that you have unearthed over these five days. And Adam, let's start with this opening salvo from the chief justice, John Roberts. Tell us about his first memo.
So this is a three-page, single-spaced memo on letterhead that says the chambers of the chief justice. And he explains to his colleagues why he thinks – the Obama plan needs to be halted. He says it's going to impose enormous burdens on states and on the coal industry.
He says there's no time to waste because they're going to have to start complying with the requirements of the Clean Power Plan right away. He says the that the law the president relies on to authorize this move, the Clean Air Act of 1970, does not clearly give him that power.
And the court likes to say that unless a president clearly has the power, it runs afoul of the major questions doctrine and is no good.
Mm-hmm.
And he says, the EPA has kind of tricked us not long ago, and we're not going to let him do that to us again.
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Chapter 6: Why is the Supreme Court not providing reasoning for major decisions?
The Supreme Court rules five to four, and within hours, the Supreme Court issues its order and In contrast to all this private debate that we've just told you about, it's just one paragraph. It's legal boilerplate. There is no explanation. All the court says is that they are blocking President Obama's signature environmental initiative.
So this is really a question to both of you. Now that you have been able to pry open this previously locked box of the birth of the shadow docket, now that you've gotten inside the first real case of this new era, what do you ultimately conclude from what you've seen?
Critics of the shadow docket have always feared that the court can't do anything its best work under this kind of time pressure without good briefing and arguments and deliberation. And these memos vindicate that criticism. This is not the court doing A-plus work. This is the court throwing ideas around, seeming to be motivated by grievances against a
a president that some of the conservatives view as activist, getting snippy with each other, and just in general, not doing the kind of work we associate with the nation's highest court. So people think the shadow docket is problematic because the court is moving too fast on not enough information. And these memos support that criticism.
And to continue Adam's thought, they're not only deciding a very important case. What they're deciding on is a whole new way of doing business. They are disregarding time-tested procedures that have... kept courts upright for a very long time, and they don't seem to be considering the implications.
It's true that Justice Kagan calls what the court is doing unprecedented, but nobody goes further and asks the question, well, if we do this, where is it going to lead?
Mm-hmm. And where it leads is what we've seen over the first year plus of the Trump administration, where the court is deluged by emergency applications and is spending seemingly half its time on them and is often, in very short periods of time, ruling for the Trump administration on major questions like immigration. like agency power, like government spending, like transgender troops.
And in contrast to the Obama experience, where the court shut down a major presidential initiative, these days on the shadow docket, the court is mostly, and indeed overwhelmingly, allowing President Trump's initiatives to go forward.
So should we consider the shadow docket as encouraging the justices' most partisan instincts?
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Chapter 7: What are the implications of the shadow docket on judicial legitimacy?
It was edited by Devin Taylor. Contains music by Diane Wong, Marion Lozano, and Alicia Baitu. Our theme music is by Wonderly. This episode was engineered by Chris Wood. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.