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Examining the Supreme Court's use of emergency applications

STEVE INSKEEP, HOST:

Now, the federal judge blocked the Texas law after the U.S. Supreme Court declined to do so last month. The court heard an emergency application to stop the law and said no. The court has often blocked actions through emergency applications in the past, but this time a majority said the case was just too, quote, "complex and novel," so they let the law stand. Justice Sonia Sotomayor accused her colleagues of a "breathtaking defiance of the Constitution." That's a quote. Critics took the occasion to question how the court's conservative majority is using emergency orders.

STEPHEN VLADECK: So I'm Steve Vladeck. I'm the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, and I've been interested in the more mundane and arcane parts of the Supreme Court's work, really, for quite some time.

INSKEEP: That includes emergency orders known in recent years as the shadow docket - arcane, perhaps, but there's a lot of power there. The court considers an application for relief, as it's called, and without taking time for oral arguments or long rulings, they just say, stop everything until we figure this out.

VLADECK: So it's orders that run from the mundane to the macabre - so, you know, giving a party 4,000 extra words for a brief or another week to file their brief versus granting or denying a last-minute stay of execution for someone who's on death row in Texas.

INSKEEP: Well, what has happened in the last several years?

VLADECK: First, we've seen a really dramatic uptick in how often the justices are actually granting emergency applications through these often unsigned orders. So just to take one data point, the Supreme Court's last term, the one that ended on Sunday - the justices granted 20 different applications for emergency relief. Steve, that's the most in any year I've ever seen - 19 the previous year versus, during the first 10 years of Chief Justice Roberts' tenure, really an average of five or six per term.

Second, as importantly, it's not quantity, it's also quality, where more and more of these emergency orders are actually having effects beyond the parties - so not just a stay of execution between a state and a death row prisoner, but lifting a district court injunction of a nationwide immigration policy, allowing that policy to go back into effect, or freezing statewide COVID restrictions that had otherwise been in effect, where these rulings are affecting millions of people.

INSKEEP: Where does the Texas abortion ruling fit into all of this?

VLADECK: The Texas abortion ruling is a big part of the story, but it's a complicated one because, you know, those who, I think, are less troubled by what's been happening on the shadow docket in the last couple years point to the Texas abortion ruling, where the court by a 5-4 vote declined to intervene and stayed out of the way as the controversial Texas abortion law went into effect on September 1. And I guess from where I'm sitting, that misses the nuances here, which is that the real problems with the court's nonintervention in the Texas case come into light when we compare it to the court's aggressive interventions in cases where I thought the claims were weaker. So, you know, there have been a handful of cases where the court has reached out to block California COVID restrictions and New York COVID restrictions.

So I think the problem is not just the abstract proposition that the court allowed the Texas abortion law to go into effect. The problem is that by doing that, in contrast to what it had done in other cases and by not really explaining why the Texas case was different from the California or New York cases, the court at least leaves the impression that the relevant difference is red state, blue state as opposed to intervention, nonintervention.

INSKEEP: One of the reasons I wanted to talk to you this week is we did get an explanation in a public forum - a somewhat public forum - from Justice Samuel Alito last week. He was giving a speech. And we don't have a recording, but I want to read some of what he said defending the court's use of the shadow docket. Quote, "there is nothing - absolutely nothing - new about emergency applications." He goes on to say the catchy and sinister term shadow docket has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way. And this portrayal - Samuel Alito speaking here - "this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution." He says there's absolutely nothing new here.

VLADECK: Yeah. I mean, I just - you know, with all respect to Justice Alito, who I greatly admire for at least bringing this out into the public domain, you know, I think the data don't back that up. Yes, the court has always had an emergency docket. Yes, there have always been emergency rulings. The piece here that really just doesn't have countervailing evidence is how much more often the court is handing down these orders, how much more of an impact these orders are having and how much more the court itself is treating that as precedential.

And so, Steve, if you add all three of those things together, you get a very different emergency docket, shadow docket. Call it a banana docket. Whatever you call it, you get a very different exercise of power by this Supreme Court than by its predecessors.

INSKEEP: The Wall Street Journal has defended this practice in the following manner. There are more partisan moves by presidents from both parties acting alone or governors from both parties acting alone, bypassing traditional political procedures - in many cases, in emergency situations like the pandemic - and so the court needs to deal with this higher number of problems through this emergency method. What do you make of that?

VLADECK: So I guess there are two problems with that. The first is it presupposes that we've never had similar provocations, that we've never had elections before with novel circumstances, that we've never had a rash of challenges to a new president's policies or to a new governor's policies. Of course, that's not true.

But second, these cases only get to the Supreme Court, Steve, if the lower courts have not provided the relief that the Supreme Court wants to provide, where lower courts - multiple layers of lower courts - a district judge, a federal court of appeals - have actually denied the very relief that the Supreme Court is granting. And if that's true, it bespeaks to me an even more serious problem, one that can again be addressed and be redressed through more coherent, more complete analyses and explanations from the Supreme Court.

INSKEEP: You talked about the differences between rulings affecting red states and blue states. Would you take that additional step and say that justices appointed by Republican presidents are making Republican rulings?

VLADECK: Steve, that assumes that we can get inside their heads. It may be, Steve, that there are deep, coherent, convincing analytical principles that explain why it just so happens that red states are winning these cases and blue states are losing them, that the Trump administration won these cases but the Biden administration is losing them. What's missing, because these orders are not explained, is the rationale that would allow us to give these orders legal legitimacy, that would say, yes, we are persuaded - even if we don't agree with that rationale, we're persuaded that you have a rationale that smacks of legal principle as opposed to just partisan politics. And so it's the optics as much as it is the reality.

INSKEEP: Stephen Vladeck, thanks for your insights. Really appreciate it.

VLADECK: Thank you.

(SOUNDBITE OF MUSIC)

INSKEEP: He's at the University of Texas School of Law. Transcript provided by NPR, Copyright NPR.