Lawfare Daily: The Supreme Court’s Long Shadow with Steve Vladeck and Kate Klonick

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that matter, and for supporting Law Fair. I don't blame any of the justices for how broader shifts

“in litigation that I think are mostly Congress's fault”

have put more pressure on the Federal Court's writ large. That doesn't mean that the lower courts are getting these cases wrong, such that the justices have to be intervened so often. It doesn't mean that the court has to upset the status quo

in ways it never had before.

It's the Law Fair podcast and Law Fair live on Substack. I'm Kate Klinick, Senior Editor of Law Fair, with Steve Latic Professor George Shemlaw, author of the incredibly prolific Substack, one first, and the New York Times bestselling book, The Shadow Docket.

Sometimes the Supreme Court will adhere to principles with which we disagree. That's faked into the system. What's worse than that is the court not adhering to any principles other than we can do what we want

because that's not judicial power, that's political power. - Today, we're talking about the impact of the New York Times shadow paper story that continued on the presence of the Shadow Docket and the court's lower case versus court uppercase

in this administration. - You didn't coin the term. That was Will Vode at University of Chicago but you certainly spent more time explaining like the Shadow Docket than maybe anyone alive.

“So just really quickly, I think we're obligated”

to do this at the top of the shows. Like if you can define, find it, what it is, what it's for and kind of how it's being used, compared to most of the court's history, which is effectively what the shadow papers are also about.

- Yep, so Will Vode coin the term to mean, and I agree with his usage.

Basically, everything the Supreme Court does

through orders as opposed to through the lengthy opinions we've gotten argued cases at the end of the term. So some of that Kate is emergency applications and that's obviously been the flash point for much of the conversation about the Shadow Docket

over the last five years, but not all of it. The wrangling in Louisiana voting rights case about when to issue the judgment, right? That's on the Shadow Docket. Justice Alito's Miffa Pristone administrative stays.

That's on the Shadow Docket. When the court summarily reverses a lower court. You know, just basically the idea was to try to come up with some evocative shorthand to capture all of the really significant rulings,

the Supreme Court issues, that don't get covered the way that the normal rulings do. And you know, Will coin the term in 2015 in response to a real uptick in a particular type of ruling, the summary reversal, the context where the Supreme Court

That was what was in Vogue in 2015. Part of what really shifted not long after that was how much more busy the emergency docket, part of the Shadow Docket became because we started to see so many more parties

asking the justices for emergency relief. And we started to see the court granting it so much more often, following this norm of unsigned, usually unexplained orders to grant, et cetera, leaf.

“- Yeah, so I think that this is fascinating.”

We've long wondered kind of what you've traced the in particular kind of the genesis of this moment, this switch in kind of, in particular, the emergency docket, as you said, like two, this moment in West Virginia versus EPA.

And you had said previously, kind of like, well, we'll know in 75 years when all of the court's papers

become available, and we'll finally know what happened.

But and I would like to kind of as an aside, ask you about what's going on with all of these unprecedented leaks happening at the Supreme Court, which is also like a side story. But basically, the impetus for me to ask you on talk about,

this is the Jody Canterry Adam Lib Tech at the Times, reported this leak that centers on seven internal memos that they call the shadow papers, or around West Virginia versus EPA, back and forth between the justices,

kicking off kind of the shadow docket, and they set aside the partisan reaction to the leak for the moment, like, you know, like all of that stuff. Why do these memos actually show us, like, like, what do these memos actually show us

about what the Roberts Court arrived

“at its current relationship with the emergency docket?”

And there was, and we're gonna, this, I'll kind of like, kind of lead into this for the next question, but like, what did this tell us about Roberts? I think, essentially. - Well, let's get out of the Roberts for a second,

'cause I think that's a longer and messier conversation. - Sure, sure, sure, sure. - Sure, sure, sure. - Okay, is we didn't know a lot about how these papers, you know, how these proceedings, how these applications are processed

internally. I wrote a post for one first, like a year and a half ago.

That was basically like, here's what we think we know

about how the court handles the emergency applications. And most of it was speculation, because there's no real public understanding and there wasn't before this New York Times story, a lot of public access to,

any sense of what happens behind the scenes. So I think the first thing to say is, before we're gonna enter the fight over what was novel about the clean power plan cases, just being able to see how quickly the court moved

how like cryptic the justices exchanges were that it was all done, Kate, on paper, with no in-person deliberation. And that really, I mean, I don't find any of the memos to be especially thorough, right?

I mean, this is like quick slap dash, you know, quick one-off reactions to the emergency application filed by the clean power companies and the states. And so, I think the first thing we learned is just a lot of what folks had been suspecting

to find the court's internal procedures in these cases is true. That these applications get super truncated process. They don't get discussed that much. They don't get considered that heavily.

And I think that probably surprised a lot of people. - Oh, really, what's the standard, I mean, the standard of review is like, is bizarre here. I mean, it almost feels like there's not,

like I kind of was like having a civil procedure stroke. Like watching like, I feel like looking at them like, wait, what? He's like quoting from CNN, like, whatever it was, he was like, I'm like something outside the record.

And like, if it is just kind of unpack that for a second.

“- And it's I think this goes to the second piece of it, right?”

And the second piece of it is one of the striking things to me about the first Roberts memo, which is like the initiating memo. The I'm the circuit justice.

And here's what I think we should do memo.

It's just how much short drift it gives, both to what the lawyers would call this standard of review. And I would just say more descriptively to the novelty of what the applicants were asking for. I mean, the full Supreme Court had just started

around 2016 to consider these kinds of requests outside the context of death penalty and election cases. But never before had the court blocked a federal rule, like a federal regulation on a nationwide basis, while the litigation about it was going on, right?

Well, I mean, early litigation. I would have thought that would be something when that Roberts would have at least acknowledged. He'd begrudgingly sort of says this is unusual in his second memo in response to Justice Cagan

being like, we've never done this before, right? So that's part of what's missing. You also, you mentioned the standard of review. So from a nerdy lawyer perspective, it's great to like get into it with for a lawyer,

if you're not a lawyer, like follow along

But this is what's most frustrating to me

about the analysis, which is when any court is asked to grant emergency relief. What they're supposed to do,

“okay, is they're supposed to balance the equities, right?”

That's the theory, you're sort of looking at where are the odds we're gonna rule for you on the merits, blended with how much harm is gonna happen if we rule for you now versus if we don't. - Right, it's like a, let's just kind of like,

let's get the gist of this case. Let's get the kind of like the sense of like what the risks are, what the harms are, if we don't kind of stay this or if we do stay it and like, yeah. And I mean, yeah, it's a kind of an off the cuff move.

It's not supposed to be a thorough way. It's not supposed to be a decision. - And what strikes me about Robert's analysis, if you can call it two and a half-page memo analysis, right? It's just how much, how short of strict it gives to the equities.

So first, it just takes at face value,

all of the power companies claims about a reputable harm, even though Kate just has so many points out, there's plenty of reason to not take those claims at face value. By the way, you know, spoiler alert turns out so tomorrow was right.

There's a really interesting piece up on the Yale Journal of Regulation by David Donager about like how none of those claims turned out to be true. But Kate, even if the power companies claims about a reputable harm were correct,

they were supposed to balance the equities, which means they're supposed to say, and on the other side of the equation, we have the harm to the government from having one of its signature policies blocked.

We have the harm to the environment from letting these power companies-- - There's no discussion of the poor environment. - And so, you know, what I found really sort of striking was how desultory, Robert's balancing of the equities was,

it really did give the feel that like he felt agreed by how the Obama administration had behaved in the mercury case, the earlier case called Michigan versus EPA, and was just going to block the clean power plan, no matter what, like that's the vibe that comes through.

Now, since the reporting by Jody and Adam, we've had concerted efforts by a bunch of the court's defenders, we should say some of whom clerked for Chief Justice Roberts to try to like retrofit and backfill justifications for, you know, why the Supreme Court do what it did.

“And I guess I'll just say, one, it's not what Robert said, right?”

And two, it's really, really hard to reconcile the one-sided equities analysis in Robert's Memos Kate, with everything the Supreme Court has done subsequently, in cases involving the executive branch, especially during the Trump administration, right?

I mean, we've seen, you alluded to this already, we've seen so many grants of emergency relief to the Trump administration. In the last 15 months, based largely on the idea that every time the executive branch is stopped

from doing what it wants to do, it is a reparably hard. Why wasn't that also a consideration? - Why wasn't that also happening with the Biden administration? I mean, that to me, like, I mean, I'm a data person, like the standard of deviations off the mean that that is,

is like the tell for me, like, you know, I think that there's a lot of hand waving, but you can count that, like right? You can just, you can actually see it, and there's just an, like, to then see kind of in these papers,

the thinness of the rationale behind it. They were like, okay, well, if you were, this was how thinly you were analyzing this one departure. Surely, like, since then, you haven't gotten, like, much deeper, like, on, you know, so, yeah, so that's been interesting.

- And if we were so worried about, like,

“the harm to the power companies in the clean power plant cases, right?”

Why weren't we worried about the harm to the, you know, transgender service members in the, you know, military service member case? Why weren't we worried about the harm to, you know, department of education employees in the case

about, you know, cutting them with the department in half? Why worried about the harm to non-citizens

about being removed to third countries?

Or they might face, you know, torture and other forms of persecution. I mean, it's like, part of the problem, I mean, you, you know, I'm not the data person you are, but I do think that one of the things, a lot of the course defenders

will do as a move, Kate, right? Is to lift out one or a couple of cases and say, if you just look at this, there's a rationale. And I want to push back and say, you gotta look at the whole data set.

And then the, across all the data theory. - Right. And across the whole data set, you see a court that balances the equities differently, way too often, at least apparently, based on the partisan ideological balance of the dispute.

- Yeah, no, I think that's exactly right. And so, that kind of brings me to like kind of the court defenders and the, and the non defenders. And so, will vote, like, author of the term, shadow docket. Clerks for Roberts, as you kind of said, Chicago law professor,

you know, he's generally read as a conservative legal scholar, but shortly after the shadow papers came out, he had a slightly kind of interestingly formatted,

very vociferously defending, Chief Justice Roberts. And I'm like, I'm gonna read the headline of the piece because I just, like, that I saw it when it was online, and they changed the headlines of these things,

obviously, for SEO, but don't blame Roberts for the shadow docket, which is just like, which is just like, well, you didn't bury the lead. And so, he basically argues that the shadow papers, like, defined Roberts, like, you know,

that the shadow papers is like, these put it to find Roberts, like I see it not flatteringly, but in he argues that this isn't, we're not reading them correctly, and this isn't like how we can take this.

And I found it to be kind of, I don't know, I didn't buy it, like, frankly, when I was reading it.

“And I'm not sure that I think the Roberts”

is the boogie man ever and always makes him out to be,

or he's slowly becoming kind of in the zeitgeist of court followers. But I'm just kind of curious to unpack this with you and what the reaction was. - So, I mean, I guess it depends on what we mean when we say, don't blame John Roberts

for the shadow docket, right? So in one sense, it is literally correct, because, you know, the Supreme Court can't make up cases, right? People have to actually bring the cases to the court. And, you know, okay, if we peel away all the layers,

I do think that there's a lot to be said for the uptick in government by litigation that we've seen across administrations of both parties, where because Congress has stopped doing its job, presidents of both parties are left to do more

and more government through executive order, executive orders are more vulnerable to being challenged in court than statutes are. And that's part of the input. But, right, just because there are more of these cases,

doesn't mean the court's behavior is compelled by the numerator, right? And doesn't mean the court's behavior is compelled by the inputs. And so I guess what I would say is, I don't blame any of the justices

for how broader shifts in litigation

“that I think are mostly Congress's fault”

have put more pressure on the federal court's writ large. That doesn't mean that the lower courts are getting these cases wrong, such that the justices have to be intervened so often. It doesn't mean that the court has to, you know,

sort of upset the status quo in ways

it never had Kate before.

And even if you are less persuaded by that, at the very least, I can blame John Roberts, right? For not being committed to important for the court to write, when it's going to intervene in these respects. I mean, one of the things that's no strike

from about the clean power plan rulings is that there's an area of word of analysis on either side. It is just a one-page order. You know, it seems to me that even if you have normative justifications for intervening earlier

than you ever have before and more often than you ever have before and Kate in ways that seem to be inconsistent with the standards of review, the way that you persuade us that this is justified is by trying the persuadest that this is justified.

And where I find so remarkable about the discourse right now is the number of folks who are like leaning in to defend the idea that the Supreme Court doesn't have to explain itself. Of course it does.

That is the source of its power is, you know, is it's ability to persuade us not necessarily that we agree with their principles, but that they have principles. It's truly like that it's truly the defining

the defining legitimacy of the court. I mean, like, I mean, we're truly. And like, and to the point-- - Which the court has said. - Yes.

And you know, a little bit, I'm sorry, like the buck stops at John Roberts. He's the chief justice, right? And so I do think that there is a certain amount of like, maybe like, maybe these are not the smoke.

Maybe these shadow papers are not the smoking guy and you can't like blame him entirely for like this shadow docking, what it has become. But you can kind of blame him for the shape of the court as an institution.

And he has defended the court's defenders have said quite often when the Supreme Court has issued just insanely narrow rulings or gone like in the direction of kind of protecting

the executive that they're trying to basically

shore up the power of the court and like kind of preserve the court as an institution. And so like all of this feels like that is the-- like you can't have it both ways. You can both say that Roberts can say that he's an institutionalist

and then not take credit for what the institution has become. - So I think that's right. I'll take one of the things which is to give John Roberts sort of one thread of credit here. Kate there was a run of cases during the Biden administration

where the court split five to four with Roberts in descent on the emergency dock it.

“So you might remember the Texas abortion case,”

but Roberts was with the Democratic appointees. The Alabama redistricting case, right? Roberts was descent in with the Democratic appointees. So there was this period of time where it actually looked like he was trying to signal some frustration

exasperation with how the other Republican appointed

justices were behaving in these cases. He stopped doing that. And so, you know, I think part of what's striking to me about John, I wrote a post for my newsletter last year about, or I guess a year and a half ago now,

about John Roberts's sharp right turn. And there was, I mean, there was this like two or three period Kate where Roberts really had become the median vote. And sometimes even not even the median vote, like the justice most likely does to vote

with the Democratic appointees in cases. And that stopped. And so it's objectively true that he can't make anyone else do anything. But one, he has a vote which he has stopped using in these respects.

And two, he has a bully pulpit. I mean, Roberts does not write a lot of concurrent opinions.

He could be writing more of them to say,

you know, here's why I think we ought to be doing this.

“Here's why you should be persuaded by what we're doing.”

And I think the fact that he's not, I think is hard to reconcile with the image his defenders are trying to portray. - Yeah, so again, just really quickly, like, and then I kind of want to leave Roberts

and kind of move on to kind of the bigger question about the courts versus the courts. But I do kind of wonder the start right turn. And I can't remember how you come down in your piece. But I do wonder part of the start right turn

is about the threat to justice's safety. Generally, I think that when people take some type of really abrupt kind of hard line and kind of change directions or like decide to take a harder line on something, it's because of actually something that changes their mind

or makes them think that personally affects them. And I have to think that the amount of threats in the judiciary, not just like the court itself, but like all judges and like the deaths of a number of judges and the assassinations of a number of judges,

had an effect on the court in the last couple of years and had an effect on Roberts in particular. And I'm just curious if you think that that's like the right thing, or maybe it's something totally different. And I'm like, I'm off base, but.

- And I don't know. I mean, it has to be true that the sort of volume and the politics of the Trump cases are doing some of the work here. And you know, I mean, Will Bode made this point himself

in a round table that he and Kate Shaw and I did last summer where he said, there's too much lawlessness for this Supreme Court to stop all of it. Now, there's a problem there, which is, okay, but what about the district courts?

Like why are you stopping the district courts? - Yeah, exactly, which is a perfect segue into our next conversation, but keep going. - No, and so, so I think, I mean, it really is a thesis of appeasement.

“And, you know, I think it's worth putting the A word on it”

because I think we all have a viscerally negative reaction to the word appeasement because we know why appeasement ability tends not to work. I'll just say more directly. And this is consistent with the clean power plan cases.

It radically fails to account for the costs of the court's behavior. So, you know, robbers make the impact that grant in emergency relief to the Trump administration preserve the court's capital to pick its battles down the road.

But look at what happens in the interim. One, you're empowering the administration. Some of the worst behavior by ICE only started after the court's intervention in Vasquez Perdomo, the Los Angeles ICE rates case.

Two, you are further disempowering the lower courts to stop the administration, which, you know, gets back to the relationship here. But three, I think also, like, we, the people who watch these cases are not stupid, right?

It's also undermining the court's credibility

“because we say, right, why isn't the court doing this?”

So that when those confrontations come, when the head-on battles that robberes is supposedly so worried about reach the court, the court necessarily has less power and the executive branch has more.

And I think that's, it's naive in a way that I would think would not be so beyond his ability to understand. - Yeah, so about a year ago, 15 months ago, 16 months ago at this point, you know,

the second Trump administration move against university,

is to move against law firms, it moved against federal agencies. Like, I mean, we had hundreds, if not thousands, of suits filed, kind of related to that. And there was a small group of kind of law professors,

I think it was no a Feldman road of peace in for Bloomberg, that was like, you know, at Harvard was like, trust the court, the courts will hold. I spoke to like a few kind of court of appeals justices that I'm like anonymously and they kind of all and they're like,

it'll be okay, the courts will hold, like this will kind of happen. And I was like, I'm not sure that that is necessarily true. And certainly we saw kind of a, you know, in the early days, they're just seemed to be the DOJ

seemed to be so all over the place and not interested in what a lot of the lower courts were saying.

having and, oh my god, the case that was just,

I'm like, what's his, he's in everything, the justice that, uh, yeah, it's bothburg. - Yeah, it's bothburg, thank you. But yeah, Judge Bozberg's kind of contempt hearing, like just like, you know, just like got like sent down

the garbage shoot. And so I don't know, like, they're, we're, I feel like we're like maybe the courts have stood up and like the people who said that were correct. And then like, I'm just see that there's like this,

like, you know, then they're hitting the shadow docket

and they're reversed in unsigned orders.

And I feel like we're watching this ripped open up between lower courts and the Supreme Court. So like the court's lower case versus the court uppercase. And I'm, am I, am I, I don't watch the court the way you do, not even nearly as close.

And so I'm just kind of, this is just my like off the cuff, like armchair, a thought. So I, I mean, I am, I'm writing the Harvard Law Review forward for the, for the court issue. And, and, and, and the title is the court against the court

because it is, it is, so you stumbled onto it. Um, so funny. And I guess, I guess what I would say Kate is,

“I think two very different things are true.”

And it's worth explaining how they're both true at the same time. There is one tranche of cases where the courts have been remarkably effective in holding back some of the worst excesses of this administration. Um, the alien enemies act has not been used. Since March 15th of last year.

I know. I was that's actually specifically what I was thinking. Right. Wow. Like, but that was getting pushed. Right. And so dangerous. And right, a brave of our sea as a free man, walking around the United States, right? Like, I mean, so there are sort of a bucket of cases where either with the Supreme Court's help or at least

without the Supreme Court's negative intervention, right? The courts have, I think, really saved us from some of the worst of these policies. Um, you know, the law firm executive orders. Um, the birth rights citizenship executive order.

Like, these standards have never gone into effect and had they,

they've gotten worse very quickly. Oh, yeah. Um, right.

“So there is one bucket where I think it is absolutely the case that the courts”

have been remarkably important in standing up in the rule of law. There's a second bucket where either because of like formal constraints Kate on the court's power or because of what the Supreme Court has done, um, the courts have been sort of necapton neutered. Um, and just to give the the biggest umbrella category here is all of the, um, spending and

funding cutoff cases, um, where, you know, all of that is illegal. Um, and yet, right, the, the sort of the fight-in over a statute no one's ever heard of called the Tucker Act and whether those cases should be brought in ordinary district courts or in the specialized court of federal claims has consumed so much attention, Kate, because the court of federal claims can't issue preliminary injunctions.

And so the illegality of the government's behavior can only be resolved at the end of the case. Um, and, you know, that's because the Supreme Court in a pair of unsigned and mostly unexplained rulings sent a bunch of these cases to the court of federal claims. Um, the, you know, sort of immigration detention cases were see it, right, or the Supreme

“Court has sort of left a lot of this alone. I mean, like, so I think there's one bucket of”

cases where the courts have been remarkably effective. And there's one where they have been completely ineffective either because of existing constraints on their authority or because of specific actions the Supreme Court's taken. And my flash point for the latter example is Minneapolis. Um, yeah. Right. You know, there have been by my count, I think 17 or 18 lawsuits filed challenging different features of the government's behavior in and around the Twin

Cities. And some of them have had like small successes at the margins. None of them have actually produced the kind of systemic relief that I think it was was needed, especially in January and February. Um, and there are doctrinal reasons why that's been true. There are Supreme Court reasons why that's been true. Um, and so, you know, it really depends on how you interface with this administration, whether the courts have been a useful part of the story or not.

Yeah. I think that that's, I think that that's exactly right. Um, and I, I do, you know, there were some things that the question was becoming, well, if the court rules the court, um, will they even listen? Like will they listen? And like let's just take tariffs. For example, like they appear to be listening, I think, but they've collected all this money already. And there's no remedy. And there's no type of route or procedure that we have in place to like return that money

type of, like, type of moment. And it's a, that, for example, is exactly what a preliminary

injunction is for. Like, it's like, is so that you don't get into this situation where you have, you have all of these laws or all of these executive orders or whatever it might be that have like come down. And you have harm, you have toothpaste that can get put back into the tube, even when the, the justices get to the merit it's part. And so that's kind of, I don't know like what your thoughts are on the tariff, it's ruling if that's an example of this or not.

“So I did the tariffs cases probably at the sort of decent end of the spectrum for this, because I think”

it's reflected less bad behavior by the administration and more sort of, um, shyness by the court.

So I want to elaborate in that, but there's a great article by Lea Littman and Dandy again

in the Duke Law Journal called legalistic non-compliance, um, which really does get into this, which is how the administration oftentimes is not defying these court orders, but it's sort of not complying with them either. So there are bad, I mean, there are flashpoint examples in the district court of overt non-compliance and overt defiance. I mean, that's happening in a lot of the immigration detention cases, for example. Um, the, the tariff's case is trickier because

I think the real procedural moment that mattered in that case was when the federal circuit stayed the court of international trades, original ruling striking down the tariffs for the duration

“of the appeal. Um, I think that was potentially a mistake, but I also think it's revealing that the”

plaintiffs in both of those cases didn't ask the Supreme Court to vacate that stay. Um, right. They were sufficiently scared of the Supreme Court's shadow. Um, I didn't even mean that. Um, right. No, but no, but no, but it's the correct metaphor. I mean, right? That, that they didn't even ask. And so a lot of folks online say, well, the Supreme Court let the, you know, kept the tariffs in place. No, that's not quite correct. No one asked the Supreme Court to like undo the

federal circuit stay, but the Supreme Court's not like blameless for that. Like, you know, the reason why the court-- Yeah, there's a reason why no one appeals like that. And so, and so, this is the tricky part of trying to tell a comprehensive story about the relationship between the Supreme Court and the lower federal courts, which is some of the reasons why these cases aren't getting into the Supreme Court as quickly, aren't at least directly the Supreme Court's fault.

Um, if we take the thousands of immigration detention cases that are out there, part of why those cases have been so slow is because of a really awful statute, Congress passed in 1996, that prevents class-wide litigation of the nationwide policy shift that ISIS has tried to carry out, right, to treat all undocumented immigrants as if they were stopped at the border, even if they've been letting here for 40 years. Um, it's not all the Supreme Court's fault,

“but a lot of it is the Supreme Court's fault. And I think, you know, as we look at the current”

Supreme Court term, where Trump has already lost the tariffs case, where he already lost the Illinois National Guard case. We're going to lose the birth rate to the Senate. He's going to lose the birth rate to the Senate case. He's going to lose the least of Cook case, right? All of these like Rahul and the Court-- We're going to lose Tatri, but who knows? But, right, I mean, I don't think Tatri is like a part of it. It's not a part of it, but it's like, but it's a symbolic a little bit,

but yeah. Yeah. But like, all of the courts cheerleaders are going to look at that and say, see, checkmate lives, right? The court is not in the bag for Trump. And what I want to say is like,

the court has never been in the bag for Trump, right? Is that the court is very willing to enable

a hell of a lot of executive power, not at the expense of its power, but at the expense of lower court's power. And that's the power, frankly. So, I mean, the aggrandizement of Congress thing is not that new. I mean, I think we're seeing it on steroids. What I think is really new about the last 15 months is the aggrandizement and the undermining of lower courts, Kate at the same time as the lower courts are being attacked by the executive branch in ways that we've never seen before.

And I would have thought that a Supreme Court invested in protecting the judiciary would be doing a hell of a lot more to defend the lower court judges in these cases. And in fact, it's the opposite. The goal after them. Well, I mean, that was one of the reasons I was so shocked, gobsmacked, really, by Bozberg's, by their kind of their just absolute dismissal of Bozberg's contempt finding. I mean, Bozberg is a, frankly, like, of left, a right of center judge,

a very right of center. I mean, I know, this is not, you know, he's, he's a seasoned player.

The judge is like, like, everyone knows and deeply. Right. This is not some guy writing opinions

that, like, overly quotes Orwell, frankly, which is, like, been able to make a little bit too much of for my taste. Um, like, this, you all know that, like, Orwell's not finding precedent. Right. Like, but, um, I take, I take the point, I take the moment. Um, but, like, yeah, I mean, where, I mean, I was just like, how can you, how can you be so, so, um, not willing to defend one of your own? And not only not one of your own, like, the judiciary,

but one of your own, like, Bozberg's, like, DC sir. I mean, he's been around for his, he's an OG. So, like, I just kind of, that's, you know, part of my, my question. And it's worth, it's worth putting meat on the bone of what the attacks have been, right? So, President Trump has specifically

“called for the impeachment of Bozberg. What actually did get Roberts to say something?”

Last question said, we don't impeach judges, we appeal. Um, right. Um, very, very stern comment from the

Chief Justice, right? Um, the then-to-in-general bondy filed a frivolous misconduct complaint, right, against Bozberg. Um, the Senator Judiciary Committee in January held a hearing on impeaching rogue judges. And their examples were Bozberg and Judge Boardman. Um, I, I, I, I actually wonder if they have like a directory of federal judges and they were next to each other alphabetically. Um, right? Um, Todd Blanche at the Federal Society National Convention in November, right, referred four times

in 40 minutes to the war that the Justice Department is in with the lower federal courts. Um, and they said, come work for me because we're fighting at a war. Uh, we're fighting a war and I need, I need soldiers. Um, and it's just like, this is not normal. Um, and it's not just that they don't have like Bozberg's back. It's, you know, the gorsage concurrence in the NIH case from last August, where he criticizes three different district judges for what he claims was defiance,

which is like a stunning word for the Supreme Court to throw at a federal district judge. Okay, defiance of orders that had no explanation. Um, you weren't even clear. Like what do we do? And so I just like, the problem with the Supreme Court today is that you have to be a little

“nuanced and you have to look at the whole field to really, you know, form any, I think, viable”

comprehensive view, right? It's not a court that's in the tank for Trump. It's not a court that is ruling for Republicans in every case, but it is a court that is very invested in its own power. And it, increasingly, that's come in Kate, not just at the expense of Congress, as you say. Um, but that the expense of the lower courts in a context in which there are too many cases for the Supreme Court to do it all as well. I mean, just as Kevin, I'll wrote this remarkable

concurrence in the cost of birth, right? So this is, in case last June, where it says, you know, we just, we need a nationally uniform interim answer. Um, that's what these emergency applications are about. And obviously, that nationally uniform interim answers should come from us, not a random district judge in Boston, right? Um, small problem in COXA, the court did not actually provide a nationally uniform interim answer to the question of whether the birthright citizens should

exactly order was legal or not. Like, so they're talking on both sides of their mouth. And the problem is is that you can, you know, take one side of the mouth and find some cases that support it. And you can take the other side of the mouth and find cases that support that. Yeah. So that's like kind of my last question where I kind of want to end, which is like, is the only constraint on the Roberts court, the Roberts court? Like, is that where we are? Um, you know, there is talk of a

lito, uh, resigning really so that Trump can get in a younger appointee. Um, there, you know, every time anything happens, there's talk of reform of the Supreme Court, et cetera, et cetera. Like, I don't know if that really seems to be like, I don't, I don't think that that's like a likely scenario here. Um, you know, so if the court is the problem, um, like, let's say for instance, what is the, what, what, what is the, what, where does that, what does the change happen? We're, we're,

we're, we're, we look for the change. It's it, the lower courts continuing to kind of like express this, is it going to come from the executive? Is it empowering Congress? Is there something? If there's a change in political power and majorities that like there can be some tying of hands to the mast? Um, maybe we're in a total war scenario and that's the naive thing to think that we'd want to do anyways. And so like, I'm just kind of curious what you, what your

“thoughts are. I, I guess I said two things. I mean, the first is, I think a lot of what we've been”

talking about, you know, over the last 35 minutes are really symptoms of a broader disease. And the broader disease is not the personnel on the court right now. It's not that there's a six to three

Republican Supermajority. Um, the problem is that the court is not accountable and it's never

I wrote about this last week in my newsletter. Um, it was actually highly accountable for most

of its first 200 years. It was looking over a shoulder at Congress because Congress would do things

like mess with its budget, mess with its docket, mess with its calendar. Totally. Right. Uh, mess with the justice's pensions as a way of like nudging them literally on or off the court.

“Congress has stopped doing that. Um, as part of the broader, I think congressional abandonment of”

I don't know anything. Everything. Yeah. But, but what did you do to some of that actually predates the polarization that I think can be blamed for a lot of where we are at the moment? So the long-term story is about restoring the sort of pathways of accountability and restoring the interbranched dynamic where the court can't do what we want all the time, but at least is some degree about, you know, is to some degree sort of looking over shoulder when it does stuff. In the shorter term, um,

part of that story is persuading them to court itself that this is a problem. And that, you know, sort of continuing to piss on us and tell us it's raining, um, right, is not going to redown to its credibility in the long term. And so one of the reasons why I mean, the saw started with the clean power plan, memos story. One of the reasons why I was so disheartened by the reaction to that story by folks on the right is that some of this is going to take

people not like you and me, but people like the will boats of the world, actually saying,

“hey, Supreme Court, maybe you should actually, you know, change your ways a little bit, right? Like,”

maybe you should be listening to some of these criticisms. Maybe you should be responding, maybe you should be writing more. And we're, we're in a time Kate where folks are so, like,

knee-druckingly, um, sort of either defending or attacking the court that I think the first step

has to be disabrogating the results from the process, right? And explaining why there's institutionally problematic behavior, um, that I think isn't even about the results and could be fixed without changing the results dramatically. I, I couldn't agree with that. That take more. I think feel like the steps forward are kind of building a stronger Congress out and trying to kind of shore up the, like the, the, the, the strength of Congress, which is obviously diminished and, like,

in comparison to the executive with recent decisions, but like, can be empowered. It's like, that is exactly, it can be accountability point that you make is exactly correct. But to your other point, I do think that it is time for, like, a bit of intellectual honesty, um, and kind of, I, I, I also, I'm like, the main problem here is not necessarily when we get a ruling that's, like, for us versus for them, or a ruling that we agree with or we like, or something else,

it is the long-term degradation of the system and the institution and the rule, like, which is ultimately kind of a, like, a question of legitimacy of the rule of law. And that is kind of the long, like, that is kind of the thing that sends chills down my spine, much, much more frankly, then, like, something, like, a decision that I was, like, you know, heartbroken over, like, dobs, or something like that, right? And so like, that's my personal priors. That's my, how I feel,

like, row is never particularly well-reasoned. We always knew that this was like a day on the horizon,

whatever. But like, what I want is transparency and well-reasoning and like all this other type of stuff. And like, I'm willing to let my darlings go to like, to, to lose on, like, something that I'm objectively, like, you know, invested in if it's for procedural reasons, if it's for the following

“the rule of law. And I think that that is something that I would like to see a little bit more”

adherence for, to principle. I'm not too, like, lecture. But like, this is just kind of, like, I mean, it's not, I mean, it's back to where I started, like, like, you know, we live in a pluralist society, right? Having, having a Supreme Court with the power to serve as a check on tyrannies of the majority. Something that, you know, we have plenty of evidence over the last 15 months is actually really important. The, the cost of that is that sometimes the Supreme Court will adhere to

principles with which we disagree. That's baked into the system. What's worse than that is the court not adherent to any principles other than we can do what we want when we want because that's not judicial power. That's political power. Yeah. I totally agree. I guess this will leave it there. Steve Vatic. Thank you so much for having coffee with me this morning. This was like a really intellectually invigorating start to my day. I don't, I don't dabble in Supreme Court.

Probably at one tenth of the amount that you do. And so this was like a joy to kind of exercise this part of my brain and like some of my intuitions around what's happening and the here from someone smart about what I should be thinking. And yes, subscribe to Steve's subsdeck and newsletter. And well, look for his forthcoming forward in the Harvard Law review. Thank you all for coming. And that is it for Laugh Fair Live on Subsdeck.

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