I’m so excited to get to chat with my friend Dahlia Lithwick about the Supreme Court and my new book on the Court’s “shadow docket.” Dahlia has long been not just an inspiration to me, but at the forefront of a project with which the book is deeply consistent—changing how we think and talk about the Supreme Court. For too long, we’ve tended to think of the Court as the sum total of its “merits docket”—the 60-ish cases each Term in which the Justices receive multiple rounds of briefing and hold a lengthy oral argument before handing down detailed opinions providing justifications for their decisonmaking.
That focus comes at the exclusion of the Court’s behavior off of the merits docket—and the Justices’ behavior off of the bench. But the more we focus on the Court as an institution, and the more we ask questions about the relationship between the Court and the other public institutions of American life, the more room there is to be deeply troubled by recent events—not the landmark rulings in Dobbs, Bruen, and other headline-generating cases, but by what the Court is, and the Justices are, doing in the literal and proverbial shadows. To the former, we’ve seen the Justices use unsigned and unexplained orders to a degree and in ways that are unprecedented in the Court’s history—to shape policy at statewide and nationwide levels on everything from COVID mitigation measures to congressional redistricting, and from immigration to executions. Worse still, these rulings have a remarkable tendency to defy any coherent unifying principle other than the partisan valence of each dispute—an impression the Justices ought to be deeply invested in not perpetuating.
And to the latter, the seemingly endless cycle of troubling reports about individual Justices’ behavior and relationships with rich benefactors is symptomatic of the same disease—of a Court that does not believe itself to be accountable to anyone other than itself. Part of why I wrote the book is to hopefully push us toward having a more holistic conversation about what, exactly, is wrong with the current Court—in order to begin having what is hopefully a more realistic conversation about how (and why) we can fix it.
Stephen Vladeck is Professor of Law at University of Texas School of Law. He is the co-host of the “National Security Law Podcast“, an executive editor of the Just Security blog, and a senior editor of the Lawfare blog. He is CNN’s Supreme Court analyst.
