Inside the Five Days That Remade the Supreme Court

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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, Judy Cancer and Adam Liptack take us inside the five days that we made the Supreme Court. It's Monday, April 20th. Judy, 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 on the show about the shadow docket quite a bit, but just remind us what it is and more importantly, how, as Judy just said, it bypasses the time-tested steps of the Supreme Court. So, a good way to think about this is to contrast it with the usual way the court handles cases.

Lawyers call this the court's merit stocket, and this is what we're kind of used to. The justice has spent a lot of time considering which cases to go in a year, and they get briefs on that. If they decide to hear a case, they get another round of briefs and supporting briefs, and then they hear arguments, and then they sit together and discuss and vote.

And then they exchange drafts, 5, 10, 15 drafts of opinions and concurrences in dissents. And after all this process winds itself out for like a year, they issue a reasoned decision could be 100 pages long with lots of concurrences in dissents, and it's the product of great care and deliberation. And these decisions, of course, are law that binds the nation, that gives guidance to law records,

tells litigants how they have to act. That's the Supreme Court we're used to. 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 a poor scene at the shadow docket. And what critics have worried about is they've said,

the race to create faith accomplice 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 got some emergencies. The problem we've seen in the last five or six years is the way the justice are intervening.

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 emerged 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, got instinct. Personal peak, partisan instinct, all the things that a slow, deliberate, judicious system is meant to avoid.

We don't know. Well, defenders of the shadow docket, the emergency docket, will say a couple 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, with 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 it's 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 at the Trump era. Yeah, these are not hypotheticals, these are actual cases. Those are very hard to undo, you can say it's temporary.

“But if they imagine it goes back to the court and imagine the court says, you know what?”

Actually, the Trump administration was wrong, it's very hard to undo those rulings. So even if they are temporary in nature, they are extremely meaningful in practice. Yes. And so the question is, what is actually happening inside the Supreme Court with these cases? And Adam and I wanted to see if we could find out, and we did. And what is that very tantalizing sentence, actually mean, you did?

Well, the New York Times has obtained and is published, 16 pages of confidential correspondence, among the justices, meaning they're private back and forth, that reveal the origins of the shadow docket. Through these papers, we can eavesdrop on the justices at the exact moment that they are abandoning time-tested norms of judicial procedure and backing themselves into a new way of doing business. That new way being the shadow docket.

Exactly. So Adam, give us the context for these documents that Jodie just mentioned. These documents concern a case 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 failed to get legislation through Congress. He obstructed 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. That's not surprising, and they go to the DC circuit and they ask for two things. 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. You freeze it for the timing while the litigation goes forward.

And the DC 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.

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 DC 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 Jodi, this unprecedented request by those who do not want the clean power plan from the Obama administration to survive. Or arrives at a Supreme Court if memory serves that's pretty evenly split at the moment. Correct. It's a five-four court that leans towards Republican appointing 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, "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. Exactly.

“So how does this very evenly split court react at him to this emergency request?”

Well, it arrives in the chambers of Chief Justice John Roberts. He's the justices who oversees the DC circuits, so these things go to him in the first instance. And in the ordinary course, what the lawyers involved in the case expected would happen was that he would simply deny it, deny the application, or maybe send it to his colleagues and they would collectively deny it. But what he does instead is he starts writing a memo telling the other justices that they should take this very seriously.

And that sets off a five day sprint in which the justices are going to revise centuries of Supreme Court practice. I'll break back. I'm Brian Rosen thought I'm an investigative reporter at the New York Times. My dad is a scientist. My career has been devoted to scientific teaching and research.

I remember growing up, I didn't fully understand what he was doing every day. But now that I worked as an investigative journalist, I do understand.

“So you have to start with facts from those facts, hypothesis appears, and then you work on trying to test that I foster.”

I do the same thing, obtaining documents, crunching the data, and I've talked to as many people as possible to get to the bottom of the story. The New York Times does not publish until we can prove that something is true. The best scientists are able to do that deep work because they receive funding from the university or from the government. We as journalists depend on funding from subscribers. You can support that type of work by subscribing to the New York Times.

So Adam and Jodi, we're now in the phase of this story, where the justices are exchanging these memos that you have on earth. 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 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 a foul of the major questions doctrine and is no good.

Triced how, what does he say?

“Just a few months before all of this, the court had ruled against the EPA in a case involving mercury emissions.”

That case had been litigated over three years, three and a half years. That's a framework process in the normal Supreme Court process and nobody had granted the challengers a stay. So they were started to comply with the regulation. As the litigation goes forward, the Supreme Court rules against the EPA and the next day the EPA official puts up a blog post. And essentially says, very dicey ruled against the Supreme Court, but in the meantime, the rule is essentially gone into effect and your ruling doesn't mean very much.

And that seems to drive the chief justice crazy. He concludes at the end of the memo, the absence of a stay in that mercury case, allowed the agency to effectively implement an important program we held to be contrary to law. And you have the sense that he's peaked, he's earth, and he's not collated, and then again. Robert is telling his fellow justices in this memo, I don't like what I am seeing from the Obama administration when it comes to its efforts to regulate climate change.

“I think they're being sneaky and the traditional slow legal process is letting them be kind of sneaky when it comes to these regulations.”

Yes, and the chief justice may be right that in retrospect they should have paused the mercury plan, which was pretty fast moving. When you think about the clean power plan, it's less clear that the court needs to act fast and just as far as says as much in a memo he writes responding to Robert's that same day. He lays out the chronology of the clean power plan, which doesn't require industry to do anything for six years. And doesn't require a total compliance until 2030. Right. It's 2016. So that's quite some time. Right. So he's taking a completely different attitude than Robert's.

He's thinking there's plenty of time to listen to the usual course, and he doesn't know why the court should be doing what he says is quite unusual. He says it's unusual for the court to issue a stay of an agency's order during the time that the court of appeals is considering its lawfulness. Right. As you mentioned earlier, the DC court, the circuit court, is looking at this.

Right. So he's saying, let it play out. He doesn't understand what the rush is, and he would issue an order that basically says,

DC circuit, get on with your business. Everybody else, if you run into problems, come back to us. What's so interesting is the chief justice is reaction. He writes right back the next day. And his tone changes a little bit. He seems to be getting more irritated. He's very insistent that the court needs to go ahead and block this. And I want to read you one quote of his in particular, because he says, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regulation ever imposed on the power sector.

So let's translate that. He in that first phrase is just dismissing his colleagues procedural concern, just as Brian are saying, hey, this is not unusual.

Like there's something irregular about this. And the chief justice is saying essentially, I know I know, but it doesn't matter because this regulation is so expensive for states and the coal industry. That we have to do something. It's so the sense of impatience that runs through this memo is really animated by the fact that the chief justice is ready to rule now.

“He thinks the court is going in great review. He thinks the court is going to strike down this clean power plan, and he doesn't understand why you need to let the process run out, because he knows what the answer is today.”

He even writes that he believes if the court were to ultimately get some future date here, the case on the merits for real, the law would be, quote, highly unlikely to survive.

In other words, the chief justice is saying, without going through any of the normal process of how the Supreme Court reviews the case, deliberates, he's made up his mind, and this court is going to find against this regulation.

He feels this agency has tried to sideline the court, and he does not want it to happen again.

“Yeah, and he says that in so many words, he says, "I am of the mind that a rule decided to transform a substantial swath of the nation's economy should be tested by this court before it is presented as a feet of complete."”

You know, in public, we're used to seeing the chief justice strike a very even-handed, manager's serial tone, here he's acting as a bulldozer. He's saying to his colleagues, "We should do something we have never done before, and we should do it fast." And then, Justice Elena Cagan also, a Democratic appointee, sounds an alarm. She files a memo opposing the chief stance that is even more direct.

She says, "The unique nature of the relief sought in these applications gives me real pause." She uses the word unprecedented to describe what the chief wants to do.

And she also says, "We need more time on this case. This is complicated." She writes, "On the merits, this is a difficult case involving a complex statutory and regulatory regime." So in other words, she's saying, "This is weird. Are we sure we want to do this?" The gravity of this all is based on these memos starting to dawn on everybody involved.

“Right, and remember Michael how fast this is moving. We are now only three days into this discussion of this hugely consequential case.”

And the next person to speak up is Justice Samuel Alito, a Republican appointee, and he says, "If the court fails to act, it'll do damage to its own legitimacy."

You're quite a big thing to say. He says, "A failure to stay this rule threatens to render our ability to provide meaningful judicial review and by extension our institutional legitimacy, a nullity." So not only is it dawning on them that there's a real clash in the court, not only is it dawning on them that they're moving in a different direction, they're also portraying this thing, or at least Justice Lito is, as an almost existential threat to the court itself. So you can see there that Justice Alito is echoing the Chief Justice's sense of insult. The Chief Justice feels played by the Obama administration, the EPA, and Justice Alito is saying, "Look, the Obama administration is trying to sideline us to render us irrelevant."

Adam, I'm struck by the fact that both the Chief Justice and Justice Alito are describing factors that are not really about the law, right? They're not about the Constitution. They seem to be rather focused on their grievances with the Obama administration, their fears about the place of the Supreme Court, questions of legitimacy, and those are not factors that I think of as legally speaking, animating a decision.

“That's what's so extraordinary about these papers. They open a window on how the Justice has talked to each other, how frankly are really about their actual agendas.”

And so they're quite different in kind from their ordinary decisions, which are kind of mask that portray the court as confining itself to the facts, the relevant legal materials, and suggesting that they produce an inevitable legal result, whereas the Justice is a human being, and they live in the world, and they take account of a lot of stuff, they don't say it in public, but it turns out they say it in private. Okay, and what happens next? So the whole thing, as predicted, comes down to Justice, Anthony Kennedy, the swing vote, and on February 9th, the fifth day of the debate, he sends a very short note, it doesn't say much at all.

It's the resentances, he says he's voting with the Chief, and that's it. It's over. The Supreme Court rules five to four, and within hours. The Supreme Court issues its order. In contrast to all this private debate that we've just told you about, it's just one paragraph.

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 document.

“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 document have always feared that the court can't do 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 President at some of the Conservatives you 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 document 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. We 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?”

Where it leads is what we've seen over the first year plus of the Trump administration with a court is deluged by emergency applications and is spending seemingly half its time on.

It 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 courts shut down a major presidential initiative, these days on the shadow document, the court is mostly, indeed, overwhelmingly, allowing President Trump's initiatives to go forward.

“So should we consider the shadow document as encouraging the Justice's most partisan instincts?”

Political scientists will tell you that there's more partisan voting on the shadow document than on the merit stocket, that you're much more likely to see Republican appointees voting in favor of a Republican president, and against a Democratic president than on the court's usual document than on its merit stocket. And what example of why this is so and why people when they're acting fast might rely on their partisan impulses is in the Biden years. The court voted against Biden on three different emergency applications, which then eventually returned to the court.

And the court would have had a chance to do the full thing to actually give it consideration and deliberation voted for Biden in those three merits case. So in short, the more time the court has to consider cases, the more it's partisan impulses are dampened.

Deliberation also produces trust in the court, and that's the second part.

You know the public trust. Correct. The elected branches get legitimacy because of elections, right? We choose our leaders, but we don't choose our Supreme Court justices and they stay in power for a very long time. And so the act of writing in opinion for a judge is the act of saying here's why you should trust me.

I'm going to show you how I got to my answer.

“And so when the Supreme Court changes its way of operating and does that so much less, there is truly a risk to the legitimacy of the institution.”

And recall that the Supreme Court's public approval ratings, the public's trust in the court, is testing all time lows. And it's increasing reliance on the shadow docket to make major decisions is only going to make that problem worse. Well, Adam and Jordy, thank you very much. Thank you, Michael. Thanks, Michael.

We'll do it back.

“Here's what else you need to know today.”

On Sunday, President Trump and Iran could not even agree on whether a new round of peace talks would occur this week.

Trump claimed that high-level U.S. officials would return to Pakistan for negotiations starting this evening. But a few hours later, Iran said it had not agreed to those talks. The back and forth encapsulated a weekend of dizzying developments. After Israel said it had reached a ceasefire with Hezbollah, Iran said that it would reopen the straight of her moves.

“But it then tightened its grip over the waterway.”

In retaliation, it said, for a week-old U.S. Naval Blockade.

Meanwhile, on Sunday night, a U.S. Navy destroyer attacked an Iranian cargo ship that had allegedly defied that blockade. Yeah. In one of America's deadliest mass shootings in the years, a gunman in Louisiana killed eight children and what police there are calling a case of domestic violence. The children ranged in age from 1 to 14, and were shot in multiple locations.

The gunman was fatally shot by police during a chase. Today's episode was produced by Rob Zipko, Mary Wilson, Osta Chotter Vady, and Michael Simon Johnson. It was edited by Devon Taylor, contains music by Diane Wong, Mary Elizano, and Alicia Beitu. Our theme music is by Wanderley. This episode was engineered by Chris Wood.

That's it for Daily. I'm Michael Barrel. See you tomorrow.