Kate Shaw, a contributing Opinion writer, hosted a written online conversation with William Baude, a law professor at the University of Chicago, and Stephen I. Vladeck, a law professor at Georgetown, to assess a very busy Supreme Court as it enters a new term and its 20th anniversary under Chief Justice John Roberts.
Kate Shaw: Next week, the first Monday in October, is the start of a Supreme Court term. But the idea of a Supreme Court term — where the justices do their most important work in argued cases between October and June — now seems almost quaint. What we have seen this year from the court has been nonstop action, in particular on the shadow, or emergency, docket, that has often been shocking, in both volume and impact. That’s not just my take; that’s how it looks to some of the justices. As Justice Elena Kagan wrote in a dissent last week, the court’s procedures in emergency-docket matters are worlds apart from the court’s usual approach to argued cases, which are often “of far less import” but are decided “with far more process and reflection.”
In an earlier emergency-docket dissent, Justice Kagan blasted the court’s conduct this year, writing that the emergency docket should not be used “to permit what our own precedent bars” or “to transfer government authority from Congress to the president, and thus to reshape our nation’s separation of powers.”
Will, has the court’s hypercharged summer changed your view of the court’s treatment of the shadow docket? You were sympathetic to the court as of early July.
Will Baude: There’s plenty to criticize about the court’s use of the interim docket (my new favorite term, courtesy of Justice Brett Kavanaugh), but Justice Kagan’s critique misses the biggest point. Exactly how the court goes about overruling or narrowing its precedents is not a new problem.
The real problems are (1) how the court is making the discretionary parts of these interim decisions and (2) whether it can convince the country that it would be exercising its discretion the same way if it were Joe Biden or Kamala Harris doing things that are legally equivalent. On both of those counts I do worry that the court isn’t doing an A+ job.
But I think we are basically in the same place, SCOTUS-wise, as we were when we last chatted in July.
Stephen Vladeck: Leaving aside how misleading a term “interim docket” is for rulings that are producing massive, permanent and irrevocable effects on millions of people’s lives (to say nothing of our constitutional system), I strongly disagree with Will that we’re basically in the same place as we were in July.
It’s not just that the court has handed down a slew of additional, mostly unexplained rulings siding with President Trump. It’s also that Justice Neil Gorsuch and Justice Brett Kavanaugh filed a remarkably tendentious opinion in August criticizing lower-court judges for defying the justices by not reading their minds — and that numerous lower-court judges from across the ideological spectrum have responded with what, to me, are unprecedented public criticisms of the court’s behavior, as distinct from its rulings.
My book “The Shadow Docket” warned about what it would mean for the court’s legitimacy if it keeps handing down high-profile, divisive rulings without providing even a modicum of explanation, all while expecting lower-court judges to nevertheless follow them and the American people to nevertheless accept them. I worry that the court’s behavior in the Trump cases has only driven home those concerns.
Shaw: Will, what do you make of the dynamics that have emerged between the lower courts and the Supreme Court since July? That’s certainly one change.
Baude: I agree that Justice Gorsuch’s concurrence was both unhelpful and uncalled for. It was especially bizarre, frankly, in a case where five justices ruled in favor of the district court on some of the issues (while Justice Gorsuch dissented). Justice Kavanaugh has seemingly started trying to walk those comments back, and that’s a good thing. The Supreme Court gets to reverse lower court judges if it disagrees with them, but I don’t think the additional lecturing is constructive.
But we already had that dynamic back in the spring, too. Overall, we are still in Phase 1 of a multistep process. The court has been issuing interim rulings largely but not always reversing the district courts. The reversals have almost entirely been on procedural or jurisdictional issues rather than the lawfulness of the administration’s conduct. And we’ll know a lot more nine months from now, when we will likely have had rulings on the substance of tariffs, birthright citizenship and the other legally dubious things this administration has done.
Shaw: Well, we don’t actually know that many of the rulings have been on procedural or jurisdictional grounds, because the court hasn’t told us. Take the order allowing the administration to resume immigration stops based on criteria like race, language spoken, where individuals were found and the type of work they appear to do — Justice Kavanaugh concurred to raise standing objections, but we have no idea whether a majority of the court agreed that the problem with the lower court’s ruling was jurisdictional. And that’s a key problem with the way the court is proceeding.
Baude: Fair enough. We have to read between the lines, and I agree that’s a problem.
Vladeck: Especially when there are multiple lines. The immigration stops case is a good example: Justice Kavanaugh’s concurrence raised two different and analytically independent reasons he thought the government is likely to prevail — neither of which was especially persuasive.
Shaw: My next question involves something the three of us discussed before: the future of independent agencies, which have been part of our government since the late 19th century. Just last week, the court all but overruled the 1935 case Humphrey’s Executor by allowing the president to remove, at least temporarily, a commissioner on the Federal Trade Commission — the very agency at issue in Humphrey’s Executor.
In this and other emergency-docket rulings this year, a new vision of our constitutional order has come into focus. The Republican appointees on the court seem to have a very particular view of that order — a very, very strong president, a much-diminished Congress and a powerful court looming over both. If, as we can assume, Humphrey’s Executor is overturned, how can we expect the separation of powers to change? Where would that leave the constitutional order?
Baude: In my view, this isn’t a new vision of our constitutional order but one of the oldest visions. It’s been present, albeit contested, from the founding to Reconstruction and throughout the 20th century. In practice, there have almost never been meaningful legal constraints, as opposed to political and norm-based constraints, on presidential removals. It’s the administration’s complete destruction of those norms that is making the big change here, not constitutional law.
Vladeck: It’s more than a little stunning the extent to which a majority of the justices today take the unitary executive theory as if it were handed down from the mountaintop. But even if they were right, the theory makes sense only if it’s absolute. A “bespoke Federal Reserve exception,” along the lines the court’s cryptic order in the Wilcox case appeared to embrace, is rather fatal to the idea that there’s a coherent single theory.
Shaw: We’re all awaiting action on the pending application asking the court to allow the president to fire Lisa Cook, a member of the Federal Reserve Board. A bipartisan amicus brief filed last week warned that siding with the president here “would expose the Federal Reserve to political influences,” eroding public confidence in Fed independence and “jeopardizing the credibility and efficacy of U.S. monetary policy.”
Will, how much are those sorts of concerns likely to matter to the justices? And is Steve right that an exception for the Fed calls into question the entirety of the unitary executive theory?
Baude: In her new book, “Listening to the Law,” Justice Amy Coney Barrett says that she doesn’t read most amicus briefs because they address policy issues rather than the law. I take it from that that she’s unlikely to care about that kind of amicus brief argument and she’ll be much more focused on the legal technicalities. But I have suggested the court may well distinguish the Federal Reserve from other agencies on technical grounds — and it also might distinguish very low-level executive employees, specially structured agencies like the Inter-American Foundation, the Register of Copyrights and so on. Those exceptions show legal care, not necessarily a lack of principle.
Vladeck: I don’t doubt Will’s predictive powers. But I do take issue with the idea that these exceptions show legal care. The animating premise of the unitary executive theory is that the president must be able to exercise all of the executive power. Any argument that the Fed or any other entity that exercises even a little executive power is somehow special or worthy of different treatment ought to open the door to lots of other arguments — for instance, why the Merit Systems Protection Board (an agency that exists almost exclusively to adjudicate workplace complaints within the executive branch) should likewise be different. If the Constitution doesn’t require that the president be able to freely exercise all of the executive power, then much of the court’s recent jurisprudence in this field is rather significantly overstated (and underexplained).
Shaw: One of the biggest cases the court will hear this fall — fast-tracked for oral argument on Nov. 5 — involves the president’s tariffs. The case involves a specific question about the president’s authority under the International Emergency Economic Powers Act of 1977 but also a larger question about judicial deference to presidential determinations, like the declarations of emergency that underlie these tariffs. How do you think the tariff issue is likely to play out?
Baude: Steve’s confidence in my crystal ball notwithstanding, this is a very hard one to predict. Judge Richard Taranto (a highly respected Barack Obama appointee) made a very good argument in a dissent that the act really gives the president a huge amount of power over tariffs.
At the same time, it’s hard to accept that there is virtually no scrutiny over the president’s implausible declaration that trade imbalances are “an unusual and extraordinary threat” and then virtually no limits to what the president can do once he’s made that declaration. That’s the kind of argument the nondelegation doctrine and the major questions doctrine were supposed to check.
Vladeck: Will’s point about scrutiny seems critical to me. This is the same court that relied on the major questions doctrine to invalidate Biden’s student loan debt forgiveness program — on the ground that Congress hadn’t spoken specifically enough in the statute purporting to authorize it. It sure seems the argument that the act authorizes these tariffs (when it was never used for tariffs before) is even more of a stretch.
That’s not to say that the court will rule against Trump. Like Will, I think this is going to be a close call. But it’s also worth stressing that, beyond the removal cases, this is probably one of the stronger merits cases for the government that we’ll see in the court anytime soon.
Baude: I agree with that.
Shaw: One of the weaker cases involves the constitutionality of the president’s birthright citizenship executive order. The administration has not asked the court to expedite the case, but neither has it offered the court an offramp — focusing, say, on whether class actions in these cases were properly certified.
Does that tactical decision — squarely presenting the court with the constitutionality of the order — broadcast anything about how confident the administration is feeling these days at the court?
Baude: The solicitor general, D. John Sauer, already promised the justices he would bring the merits of the case to them if the administration kept losing in the lower courts (which it has). And I’m sure he’s under immense pressure from the White House to litigate this issue, regardless of whether he thinks it’s a loser.
But I’ll risk embarrassing myself by doubling down. Nothing has changed on this since July, and the court won’t uphold the order.
Vladeck: I completely agree with Will. I still believe that there will be somewhere between five and seven votes on this court to invalidate the order, and I’d lean closer to seven.
Shaw: At the end of the last term, the court decided not to resolve a pair of cases involving the Voting Rights Act, instead asking the parties to address a much broader question than the case originally presented — essentially whether deliberately creating majority-minority districts in order to comply with the act violates the Constitution. What are the chances the court uses this case to strike down what’s left of the act?
Baude: If I had to bet, I’d say the court will limit the drawing of racially gerrymandered districts without formally invalidating the whole act. That is, it will limit the Voting Rights Act’s effect on districting but not its broader application to other voting restrictions. And this is such a refreshing question: The court’s “colorblindness docket,” along with its unitary executive docket, are some of the more normal things it is doing in constitutional law.
Vladeck: I certainly agree that the odds are strongly in favor of a majority taking yet another bite out of the Voting Rights Act. But that would be both unfortunate and uncalled for. If we can all agree that states violate the Constitution when they draw congressional district lines to dilute minority (and especially Black) votes, then it ought to follow that Congress can enforce the Constitution by requiring states to draw districts that don’t so discriminate — even if that requires states to take race into consideration when doing so. Otherwise, this critical constitutional principle would be completely unenforceable.
Shaw: As it turns out, Sept. 29, the day we’re having this conversation, is John Roberts’s 20th anniversary as chief justice. There have been only 17 chief justices — some hugely memorable, like John Marshall, some far less consequential.
Twenty years in, the court’s public approval is at its lowest level since we started measuring it. It’s hard to know how to gauge the impact, much less the success, of a chief justice’s tenure, particularly from inside it. But it’s still a good occasion for some reflection.
Will, you were a clerk for Roberts. Is this what you expected from a Roberts court? And how would you rate Roberts as a chief justice at this point? To slightly borrow a framing from Steve’s must-read newsletter, how has Roberts done when it comes to (1) safeguarding or improving the court’s institutional stature and credibility and (2) achieving the major substantive goals of the conservative legal movement?
Baude: I want to make clear that I can’t speak for my former boss and have disagreed with plenty of his decisions. But he’s been one of the great chief justices in history. I have to resist Kate’s framing, though. I don’t think it’s the chief justice’s job to improve the court’s credibility and certainly not his job to achieve the substantive goals of the conservative legal movement. It’s his job to help run the institution and decide cases according to law.
Shaw: To be clear, Roberts himself seemed to broadcast improving the court’s public stature as a goal for his tenure. And it’s hard for me to see anyone thinking that he’s much succeeded on that score. And I, of course, agree that his job isn’t to advance the goals of the conservative legal movement. But I also find it hard to deny that on his watch the law has moved significantly in the direction of achieving most of that movement’s key priorities.
Baude: I don’t agree that the chief set out to improve the court’s public stature as a goal. He said, “It’s my job to call balls and strikes.” Though I’m sure they all hope that by calling balls and strikes and calling them well, they will earn the respect of the country.
Vladeck: C’mon, Will. The “balls and strikes” line was cute, but what about his other supposed animating principle (which he returned to in a concurring opinion for Dobbs) that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more”? Roberts has been in the middle of countless decisions in which the court decided more than was necessary, he has been in the middle of the court taking up countless cases it didn’t need to decide in the first place, and he has been in the middle of the court’s various moves to decide more significant legal questions at ever-earlier stages of litigation. You may be OK with most of that behavior, but can we please drop the tired canard that he’s just an umpire passively standing athwart the game of history?
Baude: We can disagree about how well he is doing that job of neutral umpire, but I hope we never drop the idea that’s a noble job to aspire to and a standard to be judged against.
Vladeck: I guess this is a fundamental disagreement between us. Law isn’t baseball, with a fixed set of clear, technical rules (the infield fly rule notwithstanding) to be administered by well-trained technical experts. Law is replete with judgment calls, with the need for perspective, with, as Justice Kavanaugh so tellingly put it in the Los Angeles ICE raids case, a requirement for judges to apply their “common sense” when interpreting the relevant facts and law.
Shaw: Let’s end with a question about books. As you know, Justice Barrett has a book out. Justice Sonia Sotomayor just released a children’s book. Justices Gorsuch and Ketanji Brown Jackson, as well as the retired justice Stephen Breyer released books in the past year or so, and the retired justice Anthony Kennedy will soon have one out, too.
I’ll confess to not being a huge fan of the genre, but I’m curious if there are any books by sitting or former justices that you’d recommend. I’ll start with one I do think was valuable, though you can discount my recommendation as a former clerk: Justice John Paul Stevens’s “Six Amendments,” written after he retired from the court and an important reminder that we should be thinking about and pursuing constitutional amendment much more than we are.
Baude: I am a fan of Justice Barrett’s book, but in my view, the best book of all time written by a Supreme Court justice is an easy call, and it isn’t close: Joseph Story’s “Commentaries on the Conflict of Laws.”
Vladeck: I knew Will was going to go with Story.
Shaw: Me too!
Vladeck: If we’re allowed to count books the justices wrote before joining the court, my vote is for Felix Frankfurter’s (cowritten) “The Business of the Supreme Court,” still my pick for the best thing ever written about the first 135 years of the federal judiciary — with an honorable mention for Robert Jackson’s “The Struggle for Judicial Supremacy.”
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William Baude is a professor at the University of Chicago Law School and a host of the “Divided Argument” podcast.
Stephen I. Vladeck, a professor of law at Georgetown, writes the One First Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
Kate Shaw is a contributing Opinion writer, a professor of law at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.
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