Latest / Bloomberg Law / Confusion Over Shadow Docket & Is Alito Retiring?

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Confusion Over Shadow Docket & Is Alito Retiring? · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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  Speaker 1: There's been a lot of criticism from all quarters, including
• 0:12
  Speaker 1: Supreme Court justices, of the Court's emergency docket, often called
• 0:17
  Speaker 1: the shadow docket because of its lack of transparency. Often
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  Speaker 1: the majority doesn't include their reasoning when issuing these orders.
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  Speaker 1: Well now, Federal Appeals Court judges are budding heads about
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  Speaker 1: the role of the emergency docket and how much weight
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  Speaker 1: lower courts should give those orders, with one judge saying
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  Speaker 1: it forced lower courts to divine binding doctrine, at another
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  Speaker 1: lamenting his colleague's rhetorical assault on the High Court. My
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  Speaker 1: guest is constitutional law expert David super, a professor at
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  Speaker 1: Georgetown Law. David, everyone knows that judges have to follow
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  Speaker 1: Supreme Court precedent. Are the Court's decisions on the emergency
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  Speaker 1: docket any different?
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  Speaker 2: They can be different if they aren't explained, because the
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  Speaker 2: lower courts are bound by the Supreme Court's holding. But
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  Speaker 2: if it's only holding is that uninjunction in this case
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  Speaker 2: or that is stayed, and they don't give us any reasoning,
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  Speaker 2: then the lower courts are not bound by reasoning that
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  Speaker 2: they are speculating they're bound by what the court tells
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  Speaker 2: us to decide cases.
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  Speaker 1: And we've seen before it. I think we talked about
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  Speaker 1: pushback from lower court judges complaining about the lack of guidance.
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  Speaker 1: One judge wrote that recent emergency docket rulings regarding grant
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  Speaker 1: terminations have not been models of clarity and have left
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  Speaker 1: many issues unresolved. But now we have this disagreement about
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  Speaker 1: the emergency docket coming from appellet judges on the Fourth Circuit.
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  Speaker 1: So this wasn't a case related to tell us what
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  Speaker 1: the majority, the Ibak majority decided in that case.
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  Speaker 2: Yeah, the case was about an injunction limiting Doz's access
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  Speaker 2: to extremely sensitive social security information on you and me
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  Speaker 2: and hundreds of millions of other people. And the Supreme
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  Speaker 2: Court had previously held that an earlier lower court injunction
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  Speaker 2: in that case could not be enforced until appeables were
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  Speaker 2: fully exhausted up to the Supreme Court. And so what
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  Speaker 2: the majority in the Fourth Circuit decided was that it
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  Speaker 2: was going to send the case back down to the
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  Speaker 2: district court. It was not going to purport to reinstate
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  Speaker 2: an injunction because the Supreme Court had pretty clearly said
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  Speaker 2: it couldn't do that.
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  Speaker 1: That's the majority. And this prompted a rebuke from Judge
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  Speaker 1: James Wynn, who was joined by four other judges, and
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  Speaker 1: he argued that his colleagues were treating Supreme Court emergency
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  Speaker 1: docket orders as precedent. They must follow quote to treat
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  Speaker 1: interim orders as binding precedent abandons our long held jurisprudence
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  Speaker 1: of deciding constitutional law through reasoned opinions. Is this just
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  Speaker 1: utter defiance.
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  Speaker 2: It's absolutely not defiance. It's actually a very traditionalist and
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  Speaker 2: the Supreme Court has lectured us often on the importance
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  Speaker 2: of following the rules that were in place when the
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  Speaker 2: Constitution was adopted. And this is, although it doesn't call
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  Speaker 2: itself originalists, this is originalist in that courts have two
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  Speaker 2: entirely different functions that they often perform in the same case.
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  Speaker 2: They decide the rights of the parties before them, and
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  Speaker 2: they make precedent for the future. Those are different functions,
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  Speaker 2: and nobody, not the concurring justices, not Justices Jackson and
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  Speaker 2: so Tom, Nobody questions that the Supreme Court can decide
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  Speaker 2: the rights of the parties before it on the shadow docket.
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  Speaker 2: The question is whether when it issues an order for
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  Speaker 2: the parties in front of it without an opinion or
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  Speaker 2: without a meaningful opinion, if that should be also treated
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  Speaker 2: as president and the history is that court's issue opinions
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  Speaker 2: to tell us why they're deciding things. Often the parties
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  Speaker 2: are making half a dozen different arguments and knowing that
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  Speaker 2: that party one doesn't tell you which of those six
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  Speaker 2: arguments was persuasive with the court. And if we just
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  Speaker 2: guess as to why the court did what it did,
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  Speaker 2: will often be creating a law out of thin air,
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  Speaker 2: playing ventriloquist, which is not the lower court's job. It's
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  Speaker 2: not any of our jobs.
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  Speaker 1: In a case where the Supreme Court allowed President Trump
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  Speaker 1: to temporarily remove three democratic members of the Consumer Product
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  Speaker 1: Safety Commission, the Court stated that while interim orders are
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  Speaker 1: not conclusive as to the merits, they inform how a
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  Speaker 1: court should exercise its equitable discretion in like cases. What
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  Speaker 1: does that mean?
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  Speaker 2: Well, there's a lot unpacked there. When they say it
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  Speaker 2: doesn't decide the merits of that case, it means that
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  Speaker 2: the party's rights are not finally decided. The parties can
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  Speaker 2: continue to litigate the lower court and come up to
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  Speaker 2: the Supreme Court. So that part is well understood, then
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  Speaker 2: the question is what kind of precedent is it? And
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  Speaker 2: the Justice there says that it informs what the lower
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  Speaker 2: courts can do, but only in like cases. When you
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  Speaker 2: don't have much of an opinion from the Supreme Court,
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  Speaker 2: it's very hard to know what like cases are, and
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  Speaker 2: it can inform only to the extent that it provides information.
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  Speaker 2: And if they don't tell us what's important, then it's
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  Speaker 2: very hard for lawyers or judges or voters to know
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  Speaker 2: how they are to change what they're doing. Also critical
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  Speaker 2: here that the Justice mentions equitable discretion. Equity is not
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  Speaker 2: a system of rigid rules. Equity is a system of
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  Speaker 2: judges applying judgment, and that judgment should be consistent with
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  Speaker 2: the general principles of our system. But it's never a
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  Speaker 2: rigid process, and so asking lower court judges to act
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  Speaker 2: rigidly in an equitable case is like asking for a
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  Speaker 2: ocean without any water. It doesn't work that way.
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  Speaker 1: Speaking of water, Judge J. Harvey Wilkinson, the third who's
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  Speaker 1: Reagan appointee, said in his concurring opinion that Judge Wind's
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  Speaker 1: warning creeps too near the water's edge of defiance for
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  Speaker 1: my comfort, and he described it as a rhetorical assault
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  Speaker 1: upon the Supreme Court. Then Win came back and his
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  Speaker 1: opinion and said, if anything creeps towards the water's edge,
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  Speaker 1: it's the notion that lower courts must divine binding doctrine
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  Speaker 1: from orders that say nothing of the kind. It does
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  Speaker 1: seem to put lower courts in a terrible position.
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  Speaker 2: Well, it does. And there are two distinct criticisms of
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  Speaker 2: the shadow docket that really need to be separated here.
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  Speaker 2: One is about inputs and the others about outputs. There
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  Speaker 2: are a lot of criticisms which I share that they're
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  Speaker 2: taking too many cases and they're not getting the benefit
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  Speaker 2: of lower court decisions, of a fully developed record oral arguments,
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  Speaker 2: and that that can lead to them making bad decisions,
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  Speaker 2: decisions that are much worse than the same court would
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  Speaker 2: have made if it had proper inputs. But there's a
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  Speaker 2: second distinct complaint about the outputs, that they don't give
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  Speaker 2: us much in the way of opinions. And that's what
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  Speaker 2: we're arguing about here. I suspect Judge when would just
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  Speaker 2: assume the Supreme Court take fewer cases on the shadow
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  Speaker 2: do actually, suspect Judge Wilkinson would agree with that. But
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  Speaker 2: if they're going to take the case and decide it
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  Speaker 2: and expect it to be treated as president, they need
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  Speaker 2: to write opinions telling us what the precedent is, allowing
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  Speaker 2: us to figure out what cases are governed by it
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  Speaker 2: and what are not. And there's a very old tradition
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  Speaker 2: of lower court judges criticizing, often very directly, Supreme Court
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  Speaker 2: decisions and complaining that Supreme Court decisions don't give them
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  Speaker 2: proper justification. There's a very famous case by Judge learned Hand,
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  Speaker 2: one of the most respected district judges of the twentieth century,
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  Speaker 2: Nobody's Liberal, complaining about a decision that the Supreme Court
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  Speaker 2: did and basically saying their rationale is so thin, I'm
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  Speaker 2: not going to apply it as precedent because I don't
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  Speaker 2: know how. And that's in all the books I teach
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  Speaker 2: it every year in my course. That is certainly not
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  Speaker 2: a disreputable opinion.
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  Speaker 1: And yet Justice Neil Gore such scolded lower court judges
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  Speaker 1: for not following Supreme Court rulings, saying lower court judges
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  Speaker 1: may sometimes disagree with this Court's decisions, but they are
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  Speaker 1: never free to defy them. But other justices are critical
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  Speaker 1: of the shadow docket themselves. For example, there was a
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  Speaker 1: recent appearance by liberal Justice Katanji Brown Jackson and conservative
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  Speaker 1: Justice Brett Kavanaugh. She said that the Court's increasing willingness
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  Speaker 1: to intervene before lower courts fully resolved disputes creates a
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  Speaker 1: warp system. But he said he didn't relish the increase
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  Speaker 1: in emergency petitions, but they're required to take action one
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  Speaker 1: way or another when emergency relief is sought. I mean,
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  Speaker 1: are they being pushed into this, you know, by the
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  Speaker 1: Trump administration's actions that are being held back by lower courts.
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  Speaker 2: Well, the Trump administration is a revolutionary administration, and you
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  Speaker 2: can be happy or unhappy about that, but they are
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  Speaker 2: trying to overturn the way things have been done for
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  Speaker 2: many years, in some cases for the whole history of
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  Speaker 2: the Republic. And if you like it, you call it
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  Speaker 2: draining the swamp. And if you don't like it, you
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  Speaker 2: call it lawless. But they're doing a lot of radical things.
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  Speaker 2: It's no surprise that when you put forward a radical
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  Speaker 2: program you get sued a lot. Franklin Roosevelt was sued
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  Speaker 2: a great deal and he put forward a radical program.
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  Speaker 2: Abraham Lincoln was sued a lot when he put forward
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  Speaker 2: a radical program, so we shouldn't be surprised by that.
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  Speaker 2: And saying that the Trump administration is being burdened in
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  Speaker 2: a way that priorate administrations that followed our political and
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  Speaker 2: governance customs were not really isn't a very persuasive argument.
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  Speaker 2: It is true the Supreme Court is getting many, many
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  Speaker 2: more petitions from the Trump administration than priorate administrations filed,
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  Speaker 2: but that really is attributable to the Court itself. It
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  Speaker 2: grants a great many of them, which causes more to
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  Speaker 2: be filed. I'm aware of cases in prior administrations where
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  Speaker 2: there was a strong desire to file one and the
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  Speaker 2: Solicitor General basically said, we don't get to do this
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  Speaker 2: very often, and this isn't one of the few cases
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  Speaker 2: I'm willing to do it on. There's no one saying
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  Speaker 2: that in this administration, they just file, file, file, And.
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  Speaker 1: Actually, Justice so to Major during an appearance last Thursday,
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  Speaker 1: said the Court had itself to blame for the flood
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  Speaker 1: of emergency appeals, and she pointed to what you were
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  Speaker 1: just saying. Stay with me, David. Coming up next, we'll
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  Speaker 1: talk about the rumors that Justice Alito is going to retire.
• 11:42
  Speaker 1: You're listening to Bloomberg. Justice Sonya so To Mayor has
• 11:48
  Speaker 1: been on the road making public appearances speaking about her
• 11:52
  Speaker 1: latest children's book and her experiences as a Supreme Court Justice.
• 11:57
  Speaker 1: So To major took an unusually public public and pointed
• 12:01
  Speaker 1: swipe at fellow Justice Brett Kavanaugh while speaking at the
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  Speaker 1: University of Kansas Law School. It related to a September
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  Speaker 1: eighth emergency order issued on the shadow docket, where the
• 12:14
  Speaker 1: justices paused lower court rulings that had temporarily barred immigration
• 12:19
  Speaker 1: agents from targeting people based solely on their language, occupation, race,
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  Speaker 1: or presence at locations such as car washes or bus stops.
• 12:30
  Speaker 1: In a concurrence, Justice Brett Kavanaugh said legal residents promptly
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  Speaker 1: go free after typically brief encounters with authorities. Well, without
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  Speaker 1: naming him, Sotomayor said, quote, I had a colleague in
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  Speaker 1: that case who wrote, you know, these are only temporary stops.
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  Speaker 1: This is from a man whose parents were professionals and
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  Speaker 1: probably doesn't really know any person who works by the hour.
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  Speaker 1: I've been talking to constitutional law professor David Souper of
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  Speaker 1: George Law. David Sotomayor has vented her frustrations at public
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  Speaker 1: events before, But this surprised me because it seemed to
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  Speaker 1: be a personal attack on Kavanaugh. And you don't usually
• 13:14
  Speaker 1: see justices criticizing each other in public. They always claim
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  Speaker 1: that they get along wonderfully.
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  Speaker 2: You don't usually hear that, and I think the reason
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  Speaker 2: you don't is because they're afraid that it will interfere
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  Speaker 2: with their ability to work with one another in the future.
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  Speaker 2: But when justices believe that there already is no ability
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  Speaker 2: to work together, frustration can boil over. There are not
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  Speaker 2: a lot of controversial cases on with Justice Sodomaior and
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  Speaker 2: Justice Kavanaugh have been on the same side, and there
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  Speaker 2: have been quite a few where it's been otherwise. But
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  Speaker 2: I think that the point that she's making, perhaps more
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  Speaker 2: bluntly than some would is an important point. And about
• 14:02
  Speaker 2: the shadow docket. Just as Kavanaugh asserted as a indisputable
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  Speaker 2: fact that US citizens and legal permanent residents are immediately
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  Speaker 2: let go, there's overwhelming evidence that's not true. And if
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  Speaker 2: the Supreme Court was taking cases that were properly developed
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  Speaker 2: in the lower courts on the facts, it would know
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  Speaker 2: that's not true, and it could say we don't care,
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  Speaker 2: or it could say we will allow orders designed to
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  Speaker 2: make that se or it could say this means these
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  Speaker 2: stops are inappropriate, but it wouldn't be able to make
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  Speaker 2: absolute assertions of fact that are simply false. And if
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  Speaker 2: you want to decide cases on the law, maybe there's
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  Speaker 2: an argument for an emergency docket, although I don't agree
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  Speaker 2: with it. But if you want to decide cases on
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  Speaker 2: the fact, which he's doing there, then you have to
• 14:57
  Speaker 2: let the lower courts develop the facts by.
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  Speaker 1: The wa are now referred to as Kavanaugh stops. Two
• 15:03
  Speaker 1: days later, Sodomayor said in another appearance that she has
• 15:07
  Speaker 1: civil relationships with virtually all of her fellow justices and
• 15:11
  Speaker 1: that she regards many as friends. I mean, what happens.
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  Speaker 1: Do you think the next time they go into conference,
• 15:17
  Speaker 1: which is Friday, is there frostiness in the room on
• 15:21
  Speaker 1: ease or is it just you know, another conference.
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  Speaker 2: I mean, these are professionals, and I'm always a little
• 15:30
  Speaker 2: skeptical about the claims that these people are big friends
• 15:34
  Speaker 2: of one another. I know Justice Ginsberg and Justice Cleia
• 15:38
  Speaker 2: went to the opera together, but I think that in
• 15:43
  Speaker 2: many ways, these are nine independent offices, each in the
• 15:48
  Speaker 2: same building, that interact mostly through paper and occasionally in
• 15:53
  Speaker 2: fairly formal ways, like oral arguments and conference. So I'm
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  Speaker 2: not sure that this changes a great deal. You know,
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  Speaker 2: I don't see a lot of outward evidence of much comedy.
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  Speaker 2: The Court is working very very fast. I'm sure it
• 16:09
  Speaker 2: is jamming that the descending justices to work to all
• 16:13
  Speaker 2: hours to get their descents out, rather than holding up
• 16:17
  Speaker 2: and giving them a little bit of time, which has
• 16:19
  Speaker 2: been done on very very big cases in the past.
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  Speaker 1: I can imagine you must be frustrated because she's on
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  Speaker 1: the wrong end of the six to three decisions, you know,
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  Speaker 1: so often the liberals. And she was asked by a
• 16:30
  Speaker 1: University of Alabama law student about how she's built bridges
• 16:33
  Speaker 1: with the court's conservative majority, and she said, if you
• 16:37
  Speaker 1: mean bridges, convince them that they're wrong. I descend so much,
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  Speaker 1: I'm not very successful. Do you think the liberal justices
• 16:45
  Speaker 1: have sort of given up trying to convince their conservative colleagues.
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  Speaker 2: No, I don't. I think that all three of the
• 16:54
  Speaker 2: liberal justices are very capable, very talented, and all three
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  Speaker 2: of them chose to take appointments on the Court at
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  Speaker 2: a time when they knew they would be in the minority.
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  Speaker 2: I see no evidence that they've stopped working and on
• 17:10
  Speaker 2: cases where the majority doesn't have strong views, and some
• 17:15
  Speaker 2: of these are very important cases. You do see seven
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  Speaker 2: to two, eight to one, nine to nothing decisions. And
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  Speaker 2: so the Court is functioning, and the liberals are functioning,
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  Speaker 2: and they have credibility with at least many of the Conservatives.
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  Speaker 1: You know what I do miss. I do miss the
• 17:35
  Speaker 1: hot bench and also the laughs when Justice Scalia and
• 17:39
  Speaker 1: Justice Bryer were on the court together and trading comments
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  Speaker 1: at times. Now the oral arguments are mostly very somber.
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  Speaker 1: Sometimes there's a laugh, but not often.
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  Speaker 2: Unfortunately, that's true of our political system more generally. You
• 17:55
  Speaker 2: think of funny senators, and most of them are dead,
• 18:00
  Speaker 2: and you think of funny presidents. I don't think any
• 18:05
  Speaker 2: of the last several would count as funny. Our last
• 18:08
  Speaker 2: funny president, I think was Ronald Reagan, who since then
• 18:13
  Speaker 2: really so, I think it's not surprising that the Supreme
• 18:17
  Speaker 2: Court's reflecting us in many ways. The Supreme Court reflects
• 18:21
  Speaker 2: the country, and often in ways that embarrass us. Appropriately,
• 18:26
  Speaker 2: it's a great point.
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  Speaker 1: Finally, there is speculation that Supreme Court Justice Samuel Leto,
• 18:32
  Speaker 1: who's seventy six and has not announced his retirement, but
• 18:36
  Speaker 1: that he might retire to give a Republican president the
• 18:41
  Speaker 1: chance to replace him. He is the second oldest Justice,
• 18:45
  Speaker 1: but he's years away from the age when other justice
• 18:49
  Speaker 1: is retired. Justice Stephen Bryer was eighty three, Justice Anthony
• 18:54
  Speaker 1: Kennedy was eighty two, and Justice John Paul Stevens was ninety.
• 19:00
  Speaker 1: Do you think this talk of Alito retiring is just
• 19:03
  Speaker 1: pure speculation? You're in DC tell us.
• 19:06
  Speaker 2: And if there's one thing we love, it's pure speculation.
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  Speaker 2: I mean, I don't know. Justice Alito is, if anything,
• 19:15
  Speaker 2: too young to be president of the United States, so
• 19:19
  Speaker 2: I don't know what he thinks. He's doing it at
• 19:21
  Speaker 2: age seventy six. Maybe he's gonna go for an internship somewhere,
• 19:26
  Speaker 2: but it's hard to know. This is an amazing job
• 19:30
  Speaker 2: for most of them. Justice Suitor didn't care for it,
• 19:32
  Speaker 2: but most of them love it. And Justice Alito is
• 19:38
  Speaker 2: still very sharp. He's writing opinions that reflect what he
• 19:42
  Speaker 2: wants to do, so it would surprise me if he
• 19:45
  Speaker 2: would walk away from it. And I can also imagine
• 19:49
  Speaker 2: that some justice is certainly the Chief Justice, urging him
• 19:53
  Speaker 2: not to do that because it would make it look
• 19:56
  Speaker 2: like a political move like he's trying to give a
• 19:59
  Speaker 2: seat to President Trump to fill rather than doing the
• 20:04
  Speaker 2: job as long as he's capable of doing it. So
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  Speaker 2: I hope he's not planning to step down because that
• 20:10
  Speaker 2: would be a further step towards the politicization of the Court,
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  Speaker 2: which does not need anymore.
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  Speaker 1: And also, Alito is finally in a super solid conservative
• 20:22
  Speaker 1: majority where his views mesh with the majority.
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  Speaker 2: You know he is, and he's getting good assignments. He's
• 20:30
  Speaker 2: the third most senior conservative on the Court, but the
• 20:34
  Speaker 2: Chief Justice and Justice Thomas are both giving him really
• 20:38
  Speaker 2: good assignments. From his perspective, he got to write Dobbs,
• 20:41
  Speaker 2: he gets to write other important opinions. Some justice have
• 20:45
  Speaker 2: talked about retiring because they were only given mundane cases,
• 20:49
  Speaker 2: but that's not his problem.
• 20:51
  Speaker 1: If he did retire, that would give Trump yet another
• 20:56
  Speaker 1: chance to appoint a Supreme Court justice. It would be
• 20:59
  Speaker 1: his full fourth Supreme Court appointee. I think that may
• 21:03
  Speaker 1: be a record.
• 21:04
  Speaker 2: Is first three appointees. They're not cookie cutters. They are
• 21:09
  Speaker 2: different in meaningful ways, and justice score such in Capitol
• 21:13
  Speaker 2: on statutory cases very often disagree with one another. But
• 21:17
  Speaker 2: I think if you look at the kinds of people
• 21:20
  Speaker 2: he's put in his cabinet this time versus the first
• 21:24
  Speaker 2: time around. All the people in his cabinet first time
• 21:27
  Speaker 2: around very conservative, but some of them are also very impressive.
• 21:31
  Speaker 2: This cabinet is certainly conservative, but it's hard to say
• 21:35
  Speaker 2: who is the most impressive member of his cabinet. There
• 21:38
  Speaker 2: just aren't very many. And I'm afraid we will get
• 21:42
  Speaker 2: a Supreme Court nominee who reminds us of Harold Carswell,
• 21:48
  Speaker 2: who the Senate declined to confirm because he was too mediocre.
• 21:54
  Speaker 1: I would love to hear that phrase mediocre as a
• 21:57
  Speaker 1: reason given in some of the conference hearings for federal judges.
• 22:02
  Speaker 1: We covered so many bases today, David, I always enjoy
• 22:05
  Speaker 1: these conversations. Thanks so much. That's Professor David Super of
• 22:10
  Speaker 1: Georgetown Law. And that's it for this edition of The
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