Michael: Kevin, quick stat for you. In a recent term, the Supreme Court handed down 56 signed, reasoned decisions. But it made over 5,300 rulings. What happened to the other 99 percent? Kevin: Whoa, wait. 99 percent? Are they just stamping 'Denied' on everything? That sounds like the world's most powerful and depressing DMV. Michael: You're not far off, but it's even more complicated and, frankly, more alarming than that. And that's the explosive topic of Stephen Vladeck's book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Nation's Laws. Vladeck, who's a top legal scholar and you might recognize him as a CNN analyst, argues this isn't just bureaucratic paperwork. It's a hidden realm where the Court makes some of its most profound and controversial decisions. Kevin: A secret court within the Court. I'm already hooked. This sounds like something out of a political thriller. So where does this story even begin? How did they get this secret superpower?

Michael: It begins, surprisingly, with a man who wanted to be Chief Justice more than he ever wanted to be President. William Howard Taft, the only person in history to hold both jobs, had a grand vision for the Supreme Court after his presidency. He believed its power came from its prestige and independence, not just its rulings. Kevin: That’s an interesting take. Most people would think the power is in the final verdict. What did he mean by that? Michael: Taft saw the Court was drowning in cases it was legally required to hear. In the 1800s, Chief Justice John Marshall famously said the Court had "no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given." They had to take everything. Taft thought this made the Court look weak and overworked, forced to rule on mundane disputes instead of shaping the great legal questions of the nation. Kevin: Okay, so he wanted to upgrade the Court from a local courthouse to a grand constitutional oracle. How did he pull that off? Michael: He lobbied relentlessly for what became the Judiciary Act of 1925, also called the "Judges' Bill." This law was a revolution in a quiet package. It gave the Court what's called discretionary jurisdiction through the "writ of certiorari." In plain English, it gave the justices the power to choose which cases they wanted to hear. They could simply say "no" to thousands of appeals. Kevin: So the Court basically got a 'get out of jail free' card to avoid tough questions? That seems like a massive design flaw from the get-go. Michael: It was sold as a tool for efficiency, to focus the Court's brainpower on the most important national issues. But you've hit on the immediate consequence. The power to not decide became just as important as the power to decide. And the Court started using it almost immediately. Kevin: You have an example of this? I want to see this new power in action. Michael: A perfect, and frankly shameful, example is a 1956 case called Naim v. Naim. It was a challenge to Virginia's law banning interracial marriage. This was just two years after Brown v. Board of Education, and the country was a tinderbox over race. The justices, particularly Felix Frankfurter, knew that striking down anti-miscegenation laws at that moment could trigger a massive political backlash against the Court. Kevin: So they were scared. What did they do? Michael: They punted. They dismissed the case on a flimsy procedural excuse, claiming the record from the lower court was "not properly before us." It was nonsense. Everyone knew the real reason. They used their newfound discretion to duck one of the most important civil rights questions of the era. They just weren't ready to have that fight. Kevin: Wow. So the power to choose cases is also the power to choose which battles to fight and when. That's a political calculation, not a legal one. Michael: Precisely. And this laid the foundation for everything that followed. The Court learned it could manage its political capital by controlling its docket. For decades, this power was mostly about avoidance. But as we'll see, what starts as a shield can easily become a sword.

Kevin: Okay, so the Court can ignore cases. But how does that lead to a 'shadow docket' that actively makes law? It still feels like we're talking about inaction, not action. Michael: The transition happens in one of the darkest corners of the American legal system: the death penalty. Vladeck calls it "The Machinery of Death." After the death penalty was reinstated in the 1970s, you had this constant stream of last-minute appeals from death row inmates. These are true emergencies—a life is literally on the line. Kevin: Right, you can't just wait for the next court term. You need a decision now. Michael: Exactly. So the Court developed procedures for handling these emergency applications for a stay of execution. But over time, these rulings became faster, less reasoned, and more frequent. Instead of a single justice writing a detailed opinion explaining their decision, the full Court started issuing one-sentence, unsigned orders in the middle of the night. "The application for a stay is denied." No reason given. Kevin: That's chilling. It just becomes a bureaucratic stamp on an execution warrant. Michael: It normalized a certain kind of behavior: making life-or-death decisions with speed, secrecy, and a lack of explanation. For a long time, this was mostly confined to capital cases. The logic was, "death is different." But then came an administration that saw this tool not as a tragic necessity, but as a political opportunity. Kevin: Let me guess. The Trump administration. Michael: You got it. Vladeck's data here is stunning. In the 16 years of the Bush and Obama administrations combined, the Solicitor General—the government's top lawyer—asked the Supreme Court for emergency relief a total of eight times. In four years, the Trump administration did it forty-one times. Kevin: That's a five-fold increase. What were they asking for? Michael: Everything. They wanted to use the shadow docket to greenlight policies that lower courts had blocked as illegal. The travel ban, the transgender military ban, building the border wall with funds Congress didn't approve. Their strategy was brilliant in a cynical way. They'd lose in the lower courts, run to the Supreme Court for an emergency stay, and a 5-4 conservative majority would grant it, often without a word of explanation. Kevin: So they get their policy, the lower courts are neutered, and the Supreme Court never has to write a full opinion defending its decision on the merits. It's a win-win for them. Michael: It's the ultimate legal loophole. The Solicitor General effectively became what Vladeck calls the "Tenth Justice." Their emergency requests had an incredible success rate. The shadow docket was no longer just for death penalty cases. It had been weaponized into the administration's most effective tool for achieving its policy goals in the face of legal opposition. Kevin: So the death penalty cases created the weapon, and the Trump administration was the first to really use it for political policy? That's a wild and terrifying evolution. It feels like the guardrails just completely fell off. Michael: They did. And this set the stage for the moment when the rest of America, not just court-watchers, suddenly learned the term "shadow docket."

Kevin: This all feels very 'inside baseball,' even with the Trump examples. When did regular people start noticing? Was there a tipping point where this broke through into the mainstream? Michael: Absolutely. September 1, 2021. That's the date. The case was Whole Woman's Health v. Jackson, and it involved a Texas law known as SB 8. This law banned virtually all abortions after six weeks of pregnancy, a clear violation of Roe v. Wade at the time. Kevin: But states had tried to pass laws like that before and they were always struck down. What was different here? Michael: The design of the law was diabolical. Instead of having state officials enforce it, the law empowered any private citizen—from anywhere in the country—to sue anyone who "aids or abets" an abortion in Texas for at least $10,000. This made it almost impossible to challenge in the usual way. You couldn't sue the state, because the state wasn't the one enforcing it. Kevin: That's a legal minefield. So what did the abortion providers do? Michael: They raced to the Supreme Court and filed an emergency application to block the law before it took effect. The whole country was watching. And just before midnight on September 1st, the Court responded. In a one-paragraph, unsigned order, a 5-4 majority said no. They let the law go into effect. Kevin: On what grounds? Michael: They cited "complex and novel antecedent procedural questions." Essentially, they buried their heads in the sand, using the law's tricky design as an excuse not to act. In that moment, the Supreme Court effectively overturned 50 years of precedent in Texas, not with a landmark ruling, but with a late-night shadow docket order. Kevin: That's infuriating. So for one issue, they say 'our hands are tied by procedure,' but for another, they're happy to break all the rules? How can anyone trust that? Michael: You've just articulated the core of the legitimacy crisis. The inconsistency became impossible to ignore. During the COVID pandemic, the very same conservative justices had repeatedly used the shadow docket to strike down state restrictions on religious gatherings. In those cases, they brushed aside procedural hurdles to grant emergency relief to churches and synagogues. Kevin: So, religious freedom for churches gets emergency intervention, but abortion rights for women gets a procedural shrug? Michael: That's exactly how it looked. And the dissenting justices were furious. Justice Kagan wrote a scathing dissent in another case that perfectly captures the feeling. She said the Court's shadow docket decision-making was becoming "more unreasoned, inconsistent, and impossible to defend." She wasn't just disagreeing with the outcome; she was saying the process itself was broken and indefensible. Kevin: When a justice on the Court itself says the institution's rulings are "impossible to defend," you know you have a serious problem. It's like they've stopped caring about appearing fair. Michael: And that's the danger. The Court's power isn't commanded by an army or a police force. It rests almost entirely on the public's belief that its decisions are based on principled legal reasoning, not raw political power. The shadow docket, with its unexplained, unsigned, and inconsistent rulings, strikes at the very heart of that legitimacy.

Michael: Vladeck's core argument, when you boil it all down, is that the Supreme Court's power doesn't come from a sword or a scepter; it comes from legitimacy. It comes from the public's acceptance that even when they disagree with a ruling, it was arrived at through a fair, transparent, and reasoned process of law. Kevin: But the shadow docket is the exact opposite of that. It's opaque, it's rushed, and as we've seen, it often feels completely arbitrary. Michael: Exactly. When the Court stops showing its work, when its rulings feel more like political whims than reasoned law, that legitimacy crumbles. The shadow docket is the ultimate expression of this crisis. It's the Court exercising immense power while hiding its reasoning from the public it serves. Kevin: It makes you wonder, what's the line between judicial efficiency and judicial tyranny? And how do we, as citizens, even begin to hold an institution accountable when its most powerful moves are made in the dark? Michael: That's the question Vladeck leaves us with, and it’s a chilling one. He proposes some reforms, like Congress stepping in to set rules for these emergency orders, but the path forward is unclear. It's a problem that strikes at the foundation of our democracy. We'd love to hear what you think. Find us on our socials and share your take on this. Is the shadow docket a necessary evil or a threat to the rule of law? Kevin: A heavy question to end on, but a necessary one. Michael: This is Aibrary, signing off.