What the Supreme Court Does in the Shadows
48:09 Share

Support for this podcast and the following message come from Sierra Nevada Brewing Company, where pure ingredients and sustainable brewing meet a legacy of craft. Share one with a friend today and taste for yourself. Sierra Nevada, taste what matters. Please drink responsibly. When you think about the Supreme Court, chances are you're thinking about the big decisions. Roe v. Wade, Brown v. Board of Education, Obergefell v. Hodges, Dobbs v. Jackson.

These Supreme Court decisions are the ones that make headlines and eventually history books. A lot of them come out around this time of year. Their decisions made after the justices sit through hours of oral arguments, write pages and pages of explanation, opinions citing precedent and making justifications. These decisions have signed arguments for and against that clearly show how each justice decided. They're part of what's called the court's merits docket.

But this year, the Supreme Court has been in the news a lot for a different type of decision.

Ones that are taking place quickly, in the shadows, often without full briefing and oral argument. President Trump invoked a wartime law that gives him sweeping deportation powers. A rarely used law from more than 200 years ago. Hundreds of people who it accuses of being Venezuelan gang members. To quickly expel them without hearings or due process. They were flown to El Salvador.

Here's an example you might remember. On March 15, 2025, President Trump dusted off a rarely used wartime law called the Alien Enemies Act of 1798. We covered its history in an episode back in April. This act gives the president the power to quickly deport non-citizens from an enemy nation during a war or invasion. He used it to order the deportation of Venezuelan migrants who he claimed were members of a Venezuelan prison gang.

In his order, Trump described Venezuela's Tren de Aragua prison gang as a force invading the U.S. Just hours later, a legal scramble was set in motion. A federal judge blocked his administration from using this law to immediately deport migrants. The Trump administration wasn't ready to give up.

It called for backup from the Supreme Court and filed an application for emergency relief to block that judge's order and resume deportations. And on April 7th, 2025... This evening, the U.S. Supreme Court backed the Trump administration in its efforts to continue deporting what it says are Venezuelan gang members.

But then, less than two weeks later, the Supreme Court stepped in again with an unsigned, four-sentence long order issued in the middle of the night. The Supreme Court ordered the Trump administration to temporarily cease deporting a group of Venezuelans. The opposite stance. And then in the resulting confusion, the court stepped in for the third time to clarify.

on May 16th. The unsigned order says the Trump administration did not give people at a detention center enough time to challenge their deportations. If all that is giving you whiplash, believe me, we're right there with you. This back and forth between the Supreme Court and the Trump administration has been playing out in something called the shadow docket.

These are Supreme Court decisions that can be issued quickly, without full briefing or oral arguments, often in response to emergency applications. And these shadow docket decisions are often simple, unsigned orders saying, yes, this can happen, or nope, this can't. No explanation for why.

It's really hard to fully understand the Supreme Court without understanding the shadow docket, where the court is doing controversial stuff and is not explaining itself. In recent years, the court has made more and more of these types of rapid decisions on its shadow docket. And that's because increasingly, presidents are asking the justices to intervene in emergencies, like the Trump administration did with the Alien Enemies Act.

We've gone from one every other year during Bush and Obama to almost one a month during the first Trump administration. The Biden administration averaged five per year. And now we're at basically one a week.

In a brief unsigned order, the court said the administration is free to move forward with the firing of 16,000 probationary federal employees. The U.S. Supreme Court said President Trump can fire two members of independent agencies. Monday's ruling by the U.S. Supreme Court was short and unsigned. It allowed the Trump administration to revoke the temporary protected status of hundreds of thousands of Venezuelans.

The U.S. Supreme Court says the Trump administration can continue to deport migrants to countries that are not their home nations. The justices did not explain their reasoning at all in their order. Not only are so-called shadow docket cases coming up more often, but they're also starting to affect more people. That's why we're bringing you an updated version of a conversation we had a few years ago with legal scholar Steve Vladeck. A lot of things have changed since then.

When we first had this conversation, I think you could have a plausible argument that the justices hadn't been paying close attention to what they were doing, that a lot of it was reactive and not necessarily conscious on the justices' part. That's clearly not true anymore.

I'm Randa Abdel-Fattah. And I'm Ramtin Arablui. On this episode of ThruLine from NPR, how the so-called court of last resort has gained more and more power over American policy and why the debates we don't see are often more important than the ones we do. Hi, this is Karina from Chicago and you're listening to ThruLine.

This message comes from Schwab. At Schwab, how you invest is your choice, not theirs. That's why when it comes to managing your wealth, Schwab gives you more choices. You can invest and trade on your own. Plus, get advice and more comprehensive wealth solutions to help meet your unique needs. With award-winning service, low costs, and transparent advice, you can manage your wealth your way at Schwab. Visit schwab.com to learn more.

This message comes from Thuma. Create your oasis with Thuma, a modern design company that specializes in furniture and home goods. By stripping away everything but the essential, Thuma makes elevated beds with premium materials and intentional details. With clean lines, subtle curves, and minimalist style, the Thuma bed collection is available in four signature finishes to match any design aesthetic.

To get $100 towards your first bed purchase, go to thuma.co.npr. This message comes from Progressive Insurance and the Name Your Price tool. It helps you find car insurance options in your budget. Try it today at Progressive.com. Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. Not available in all states.

This message comes from Warby Parker, prescription eyewear that's expertly crafted and unexpectedly affordable. Glasses designed in-house from premium materials starting at just $95, including prescription lenses. Stop by a Warby Parker store near you. Part 1, the Everything Else Docket.

As a leading scholar of the American court system, Georgetown University professor Steve Vladek has been teaching about the courts for nearly two decades. He's the author of a book all about the Supreme Court.

called The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic. Not a provocative title at all. Okay, so yes, obviously, it is kind of provocative. I mean, the term shadow docket is kind of provocative. So can you walk us through what exactly is

Yeah, it's interesting. It wasn't meant to be provocative. When the term was coined by a conservative Chicago law professor named Will Bode in 2015, it was really meant as just an umbrella descriptive catch-all. This evocative term that was meant to capture basically everything the Supreme Court does on the subject of the law.

Other than big, fancy decisions the court hands down each spring, the shadow docket is, in one sense, the negative space in which the court does everything else. Everything else is a lot of work. It includes basic administrative tasks, but also higher stakes decisions. Things like blocking a law from going into effect or allowing an execution to go forward.

Vladek is most interested in those decisions because over time they've made up an increasing share of what the court does. When does the court first start to shift towards, you know, the shadow docket as we know it today? So I think there are two dramatic shifts, like two real inflection points before the last few years. And the first is in the early 20th century. So if we go back a second.

The Supreme Court for its first 101 years as an institution was basically just a creature of Congress. I mean, yes, the court decided big cases, but its docket was controlled completely by Congress.

The court heard every case Congress told it to and no case Congress told it not to. Like Congress dictated what the court did. Congress would use its power over the court to intimidate and leverage the court all the time. Congress canceled the Supreme Court's entire 1802 sitting because the Jeffersonians were mad at the Federalists. Congress would take away the court's jurisdiction in cases it didn't want the court to decide.

For example, after the Civil War, Congress divided the former Confederate states into five separate military districts, placing those states under military rule until they met certain requirements. When a Mississippi newspaper editor challenged the legality of this, Congress got worried how the justices might rule, and it actually withdrew the Supreme Court's jurisdiction, meaning they couldn't hand down a decision.

So at this time, Congress held all the cards and the Supreme Court's workload was huge. The court is overwhelmed with cases. I mean, by the late 1880s, there's a point where the court has 1,800 pending cases on its docket at one point in time, all of which it's supposed to decide.

All of this was a problem, an especially big problem for a man named William Howard Taft. Yeah, I mean, so, you know, I think insofar as folks know Taft, they know him as a president. But, you know, Taft...

Before he was president and after he was president, Taft was a lawyer, right? He was a court of appeals judge in the 1890s. He was the solicitor general of the United States, meaning he was the federal government's lawyer in the Supreme Court. And Taft's first love was the Supreme Court. Taft was desperate both to be on the Supreme Court and to make the Supreme Court more powerful.

And so even before he's president, while he's president, after he's president, he is pushing for Congress to reform the court. He's pushing to get the court its own building. And so Taft's vision is that for the Supreme Court to truly play the role he thinks it's supposed to play, it has to be much more autonomous and it has to have much more control over every facet of its work.

And when he becomes chief justice in 1921, eight years after he's president, he really like devotes himself to carrying those reforms into effect. And the point of these reforms was to transform the Supreme Court's role from, you know, just a bunch of judges who are the last ones to hear every single case to, you know, a bunch of sort of judicial superheroes who sit back and decide which issues are worthy of their time and which ones are not.

And so the first real shift comes in the early 20th century with the rise of certiorari, with the rise of Congress giving the court more control over its docket. Certiorari. This is a total tongue twister of a term. It just means an order by which a higher court reviews a decision of a lower court. To our ears, that might sound pretty mundane.

But at the time, this expanding power of certiorari gave the Supreme Court much more control over its work. And what that does is it creates this sort of first step process, the are we going to take this case or not process, which is entirely a black box, right? Congress provides no rules to govern that process. This is the first big transformation because this is the first time

The court is given power to do lots of stuff without explaining itself. And that transformation begets the shadow docket because that creates this first step process where the court is going to call all of the appeals that come before it in ways that it's not going to explain. This is such a transitional time for the court.

And for the country, it's also like a transitional time, right? This period, you know, from the 19th into the 20th century. Can you give us a sense of how the context of the time is also shaping the need for kind of this shift on the court? Yeah, I mean, there's a huge explosion in federal law during and after the Civil War. I mean, the Civil War really precipitates this massive shift.

fundamental transformation in the powers of the federal government, the size of the federal government, and the extent to which the federal government is involved in regulating features of Americans' everyday lives. Before the Civil War, the odds that you would ever interact with the federal government as an American citizen were very low. After the Civil War, there's a Department of Agriculture, there's a Department of Education, there's a National Railroad, there's a National Currency. We have the first administrative agencies.

And so it really is part of this nationalization and federalization of government where alongside those processes come a much busier federal court system.

And with a much busier federal court system comes one of two possibilities. Either you hire a lot more judges to keep up with all of these new cases, or you give the existing body of federal judges more power to decide how they're going to decide cases. And Congress splits the difference. Congress creates a lot more judges in the lower federal courts. So there are a lot more trial and intermediate appeals judges created in the 1890s and 1900s.

But Congress leaves the Supreme Court alone. The size of the Supreme Court doesn't change from 1869 onwards. And instead, Congress decides to change the court's role. We look around today, we see a Supreme Court that is able to inject itself into virtually every contentious public policy dispute.

If the court did not have this kind of control over its docket, it wouldn't be able to do that. Yes. Right? And it wouldn't be nearly as powerful. The modern court's power comes from the discretion that Congress gave and that the court took to basically set its agenda. There's a kind of—

kind of negative connotation around its power, around this expansion of its ability to both hear cases and how to hear cases, et cetera. But was this expansion of power actually kind of good for some of the more powerful rulings that came from the court?

Sure. I mean, I guess that I am somewhat agnostic, right, about whether certiorari is a good thing. What to me is such a critical part of the story is, you know, I want folks to understand that certiorari is a really important thing and that like we shouldn't talk about the Supreme Court without talking about certiorari. Right. So I'm not averse to the court having some control over its docket. I think the problem that has arisen is

is that we've gone from no control to complete control. And it seems to me that there's a happy medium somewhere in between that allows for Congress to assert at least a little bit more control, to exert a little more leverage over the court that I think would be healthier from a separation of powers perspective.

Was there ever a happy medium period? I think so. I mean, like, you know, so between 1925 and 1988, you had this weird mixed docket where, you know, a lot of the court's jurisdiction was discretionary, but a decent chunk of it was still mandatory. Like there were still a number of cases the court had to hear.

Could you argue that in that period of time where you were kind of just describing that 1925 to 1980s period where there was a sort of more healthy balance, that was a period of time where arguably the court was a progressive court and was pushing the country forward on things like civilization?

civil rights issues on things like abortion rights, progressives would have said, this is great. The court is ahead of the country and it's taking us in the direction we want to go. Yeah. I mean, the answer is clearly yes. But I think the point that I try to make in the book and the point that I think gets lost in way too much of our contemporary public discourse is that if the Supreme Court in the 40s and 50s and 60s

had been handing down decisions that were wildly out of sync with public opinion, as opposed to just sort of a step ahead of it, right? Congress would have pushed back. That is the story of the Supreme Court. And part of what's, I think, troubling to me about the moment we're in is you might love the current court. You might hate the current court. What to me, I think, can't be denied is this is a court that is not remotely worried about Congress.

Coming up, how decisions about death gave the court extraordinary new powers, powers that would set it on a path to remake American life. Hi, this is Kevin Saders from Indianapolis, Indiana. I just want to applaud you for the work that you do. As always, you're listening to ThruLine by NPR.

Support for this podcast and the following message come from Made in Cookware. President and co-founder Jake Kalik shares a tool that's useful for both master and newbie griller. The craftsmanship of the carbon steel griddle enhances your grilling experience because it allows you a totally different type of grill surface that opens up the amounts of food you're able to cook. So the griddle is the perfect accessory to add to your grill and kind of

widen your grilling game. Learn more about Made in Cookware at madeincookware.com.

This message comes from BetterHelp. June is Men's Mental Health Month, and every year, 6 million men in the U.S. suffer from depression. If you're feeling overwhelmed, the strongest thing you can do is ask for help. And BetterHelp can make it easy. Take a short online quiz and connect from home with a qualified therapist. Visit BetterHelp.com slash NPR today to get 10% off your first month. That's BetterHelp, H-E-L-P dot com slash NPR.

This message comes from Progressive Insurance. Do you ever find yourself playing the budgeting game? Well, with the Name Your Price tool from Progressive, you can find options that fit your budget and potentially lower your bills. Try it at Progressive.com. Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. Not available in all states. Part 2. In Case of Emergency.

In 1961, James Meredith applied to the University of Mississippi, determined to be the first black man to ever attend the school. He knew that in over 100 years, the school had never let anyone that looked like him in. When his application was predictably denied, Meredith filed a lawsuit claiming he'd been denied entry due to his race. His case ping-ponged through the courts, with some judges ruling for the school and others for Meredith.

Eventually, lawyers asked the Supreme Court to get involved. They said it was an emergency. So before 1980, the way the court handled emergencies was actually pretty cute. The court left it to individual justices to deal with just about every emergency. So the justices are geographically divided. They all have responsibility for one ninth of the country. The idea is that that justice would act as a proxy for the full court.

In this case, that justice was Hugo Black. After reviewing the case, he decided that the school had to let Meredith in. Immediate enforcement of the judgment can do no appreciable harm to the university or the other respondents. The night the news spread that Meredith was allowed to enroll at the school, riots broke out.

A mob of angry white people armed with bricks and Molotov cocktails attacked the U.S. Marshals who were on campus to protect Meredith. President Kennedy appealed to the students and to the people of the state to comply peacefully with the law. Americans are free and sure to disagree with the law, but not to disobey it. Two people died. Hundreds were injured.

But despite the resistance, Meredith did go on to graduate from Ole Miss, partially thanks to that ruling from Justice Hugo Black. Law professor Steve Lattich is the author of the book, The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

He says the court's old system of having a single justice make emergency rulings had a few advantages. Advantage number one is we've all been in this context. Easier to schedule a meeting with one person than with nine. Yeah.

Right.

And this had two upsides. One is it was a fair amount of process. It was actually it was it was deliberative in a way that was not the full court, but that was at least better than nothing. But to no one ever confused a single justice's decision for a ruling of the full court. Like everyone understood these were temporary expedience by one member of the court. Interesting. And that's how things persist. Right. All the way through the 1970s.

What brings it crashing down is the reinstitution of the death penalty in 1976. You know, the court imposes what's effectively a nationwide moratorium on capital punishment in 1972 in a case called Furman v. Georgia.

Four years later, it changes its mind and says, you know what? Actually, we're going to let you do it. But the post-1976 death penalty has a lot of rules, a lot more rules than the pre-1972 death penalty. And those rules have to be litigated. And those rules tend to be litigated only once an execution date is set.

So that's a posture where you're going to have emergency applications, where a prisoner is going to ask an appeals court, the Supreme Court, to stay their execution while the courts figure out whether they have a viable objection to their conviction or sentence. So, you know, in the 1960s, the court would maybe get three or four emergency applications a year in death penalty cases. In 1983, it gets 83.

And with that uptick, right, the court changes its behavior.

So starting in 1980, without telling anybody, the court stops having individual justices resolve most applications. It starts this procedure where if it's remotely divisive, if a justice thinks there's a chance that any two of their colleagues might disagree, they're supposed to refer the application to the full court. So we have a full court decision instead of a single justice decision. And yet, even though the court goes to this full court process,

They borrow from the certiorari model, where if it's an order of the full court, they're not going to explain themselves. And so the court actually stops providing explanations for grants or denials of emergency relief in contexts in which previously a single justice usually would have.

This is a profound shift that nobody notices because it's all in the death penalty space. It's that moment, right, is when the court shifts to this model of full court decisions on emergency applications that are not explained, that are not signed, that are not argued, and that are not fully briefed. Wow. I mean, like,

When you when you step back and think about that, like, was it the more humane approach to basically say, well, the chance that someone who is innocent will get executed if we don't move quickly increases? Was it as well intentioned as that?

So I have a slightly more cynical take. You could argue that these procedural shifts, although they could be justified on sort of efficiency and like collegiality metrics, really were a way of limiting the ability of those justices who are most anti-death penalty to speak for the full court. And you see, starting in the 80s, like a flurry of 5-4 decisions where the court is, you know, turning away death penalty appeals.

That's extremely dark. I just want to sit with that for a second because that's extremely dark. It was essentially a more actually efficient way to enact death. It's not just that we start to see the court denying requests for stays from inmates on a much more frequent basis. The even darker part is starting in 82 or 83, we see far more cases where a state is

goes to the Supreme Court and says, hey, Supreme Court, a lower court sided with the prisoner and blocked the execution. We want you to unblock it. Oh, my God. And so, like, one of the real shifts in the emergency dock in the early 80s is the rise of Supreme Court orders that un-stay executions, which I have to say, like, I have more trouble with now.

Yeah. Denials of stays right where where where where you're changing the status quo to clear the way for an execution. Right. Essentially, you're saying that that lower court who's like, oh, there's some problems with this. We need to stop it. No, forget their decision. Like, let's just go ahead and do it.

Well, it's worse than that, right? I mean, I've got no problem with the Supreme Court saying, hey, lower court, we disagree with you. The crazy part here is the court is granting emergency relief. The court is saying states are irreparably harmed if they have to wait to execute someone. And again, like very little of this gets explicated because the court is not writing opinions, even though all of the cases where this was happening were death penalty cases.

The procedural shifts, the norm shifts, the change in the court's behavior were not limited in any formal sense to the death penalty. It was just that's where the fighting was in that time period. So when does it expand beyond the death penalty? That's the mid-2010s, right? So what happened starting in the mid-2010s is that the court on a far more regular basis

starts to engage in behavior, it had already been engaging it, right, in death penalty cases for 35 years in non-death penalty cases. And, you know, whatever the stakes of an individual death penalty case, which are obviously enormous for the prisoner, for the victims, right, for the state, those cases tend not to make law.

Right. You know, whether Missouri can execute prisoner Johnson tends not to matter to whether Texas can execute prisoner Smith. And so the sort of the the legal effects of death penalty cases tend to be pretty modest versus the U.S. Supreme Court put the brakes on a major part of President Obama's climate change agenda. February 2016.

When a 5-4 court blocks President Obama's Clean Power Plan in an unsigned, unexplained order, right, versus, you know, June 2017. The major victory for President Trump. When a 5-4 court puts back into effect parts of President Trump's second travel ban. Saying that, yes, you can, in fact, ban some foreign nationals from

with very limited explanation and no argument. The president at a meeting with Republican members of Congress cheering his victory. That is the last shift that is really responsible for the current behavior where now the procedural pathologies that inform the death penalty in the 80s and 90s are being used in contexts that have statewide and nationwide consequences. Coming up, the Supreme Court's shadow docket becomes a policy battleground.

Hi, this is Justin Whitlow from Leicester, North Carolina, and you are listening to ThruLine. I want to say that the show is an absolutely wonderful show. I appreciate your deep dive into really interesting stories. Thank you so much.

Support for NPR's Climate Solutions Week Rethinking Home comes from the Nature Conservancy. People from all walks of life depend on nature for the food they eat, the water they drink, and the air they breathe, for strengthening their communities, powering their livelihoods, and safeguarding their health. Nature is common ground for everyone, and uniting to protect nature can help solve today's challenges and create a thriving tomorrow for future generations. Discover why at nature.org slash NPR.

This message comes from Wealthfront. Get 4% APY on your cash from partner banks with Wealthfront's cash account. Go to Wealthfront.com slash NPR for a $50 bonus with a $500 deposit when you open your first cash account. This has been a paid message from Wealthfront. Cash account offered by Wealthfront Brokerage LLC. Member FINRA SIPC, not a bank.

APY on deposits as of December 27, 2024 is representative, subject to change, and requires no minimum. Funds are swept to partner banks where they earn the variable APY.

This message comes from NPR sponsor Shopify. No idea where to sell? Shopify puts you in control of every sales channel. It is the commerce platform revolutionizing millions of businesses worldwide. Whether you're a garage entrepreneur or IPO ready, Shopify is the only tool you need to start, run, and grow your business without the struggle. Once you've reached your audience, Shopify has the internet's best converting checkout to help you turn them from browsers to buyers. Go to shopify.com slash NPR to take your business to the next level today.

Part 3. Ambition to Counter Ambition. It's a Friday, April 2023. Judge Matthew Kazmarek in the city of Amarillo, Texas, is getting ready to release a major ruling. The case he's presiding over is a big one. A case brought by groups that oppose abortion rights, hoping to take the abortion pill used in more than half the nation's abortions off the market. A pill called Mifepristone.

Judge Kazmarek has a long track record of opposing abortion access. And that's exactly what he does. Federal judge in Texas invalidating FDA approval of Mifepristone, a widely used drug in medication abortions. In Washington, D.C., halfway across the country, the Biden administration isn't ready to see Mifepristone go down without a fight. Vice President Harris told reporters Friday night that courts should not be allowed to tell the FDA...

The federal government and a company called Denko Laboratories, one of the sponsors of Mifepristone, went first to the Intermediate Appeals Court. And then when that failed, went to the Supreme Court and said, hey, we're going to appeal this decision, which we think is terribly wrong.

But we don't think Mifepristone should be blocked while we're appealing. And so we want something called emergency relief. This is Steve Vladek, law professor and author of the book, The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic.

He says emergency relief can mean asking the Supreme Court to put a lower court's ruling on hold or directly block government action. It's a strategy that gained traction in the 1970s to appeal death penalty decisions. And in the abortion pill case, it worked.

On Friday, the Supreme Court upheld the Justice Department's appeal to freeze a Texas ruling that would roll back FDA approval of Mifepristone. Because of the Supreme Court ruling, while the federal government's appeal moved through the court system, the pill stayed on the market. My vote is my choice! It was a move applauded by supporters of abortion rights. My choice!

But to Steve Vladeck, watching this all play out was a scary indication of how the court conducts much of its business behind closed doors.

When the Supreme Court issued its stay, basically keeping Mifepristone available on a nationwide basis, there was no opinion. So we don't know why the court froze the lower court ruling. There was no vote count. We don't know how the justices voted. We had no warning that the decision was coming down. It just dropped on a Friday afternoon.

This is what the shadow docket is today. It's a mix of the justices deciding what cases they'd like to hear. Remember that tongue twister, Sarshi Rari, and emergency relief applications. That's when the court is asked to intervene in a case that can't wait for the merits docket. It needs an answer now. These cases don't typically involve oral arguments, and the decisions that are handed down are often unsigned and unexplained.

The Supreme Court ultimately did hear full arguments on the abortion pill issue, and Mifepristone stayed on the market. But most shadow docket cases like this never get that full hearing. This is the problem. If all you have to do is give a thumbs up or a thumbs down—

There's no requirement that you sit back and think about the consequences. There's no requirement that you put into context, right, what this ruling is going to mean for the next case. And so this is like not having to write obviates the justices, right, or exculpates them from the responsibility to actually be deliberate. And so that's where I think one can say this is institutionally irresponsible, even if it's not necessarily malicious. Right.

What would be the arguments for the advantages of using the shadow docket the way it's used? Well, I mean, again, I think we should separate out certiorari from emergencies. On the certiorari front, I mean, the advantages are, you know, efficiency, right? The court only takes the cases that the justices want to take. They do no work that they don't want to do. Like, who wouldn't want that job? Who wouldn't feel better in a job where they have no responsibilities other than the ones they give themselves?

The court would say it allows them to spend more time thinking about the big questions because they're not troubled with the little questions. You might even say it gives more respect to lower courts because a higher percentage of rulings from the lower courts are going to be the last word. So certiorari has defenses. On the emergency relief front, I mean, frankly, like I think all of the defenses are defenses of an idealized version of what the court is doing that most of us could get behind.

We first talked to Steve about the shadow docket in 2023.

But this spring, we called him up again to understand what's changed given the sheer number of emergency applications the court has received during the first few months of Trump's second administration. It's numerically insane, but it also raises all kinds of issues because like the Supreme Court is not set up to handle like one super duper high profile Trump related emergency application every week while it's supposed to also be doing the rest of its job.

I have to imagine that that kind of like constant now flood of emergency application cases, which they're emergency cases. Right. So they have to rise to the top. Right. Of the Supreme Court's docket. What has that done to the way that the Supreme Court works?

I mean, we don't know yet, but we're at least starting to see some evidence that it's affecting the rest of the court's work. So, you know, as we're sitting here at the end of May, the court is way behind in picking cases to hear next year. You know, we suspected

that some of the big decisions in cases that have been argued this term are going to take longer because the justices, again, are being sort of distracted by these late-breaking emergencies hitting over and over again. Whether it's intentional as a strategy or not, invoking these emergency applications, and then it's sort of like putting this added pressure on the court, it's making me think that it's almost weakening the power of the court in a way. Yeah.

I think there's no question that that's true. You know, the Supreme Court only has so much capital to spend when it comes to pushing back against, you know, either of the political branches, but especially the president. And, you know, that capital, you can't quantify it, but I think it's absolutely right that it's finite and that, you know, when the Trump administration is going to the Supreme Court again and again and again, just the volume of it puts enormous pressure on the court and

to, you know, perhaps side with the Trump administration in context in which it wouldn't want to, in context in which 10 years ago it would never have even considered granting emergency relief. You know, speaking of Trump, walk us through from the first Trump term to now in terms of these emergency application cases. What were some of the most significant cases on the shadow docket during that first Trump term?

And then, you know, moving into the second term, what are some of the new cases that are coming up and what are the implications they're raising? During the first Trump administration, there were a whole bunch of immigration policies that

that lower courts blocked and that the government tried to use emergency applications to put back into effect. The, you know, different efforts by the administration to restrict, if not eliminate, asylum along the southern border, the border wall. And these were all policies that lower courts blocked. In many of these cases, the Supreme Court used the shadow docket to override the lower court ruling and put these Trump administration policies back into effect.

And so during the first administration, this became a way for the government to carry out policies that might never be upheld as lawful. I think a lot of folks didn't feel the direct impact of these policies.

if they're not part of immigrant communities. The impact of these policies were felt almost exclusively in immigrant communities and then with the border wall in like the sort of the geographic areas right along the border, right? You know, the transgender military service ban, right? That's a very specific community feeling that impact. But more and more communities are being affected by these shadow docket rulings. And these rulings weren't just happening under President Trump.

During the Biden administration, one ruling in particular impacted an entire state. In September 2021, through an unsigned and mostly unexplained order, the court allowed Texas's six-week abortion ban to go into effect so that women in Texas woke up on the morning of September 2nd without access to abortion. That brought it home, right, in a way that for various reasons it had been limited to discrete communities to that point.

And now, in the second Trump administration, the shadow docket is continuing to creep its way into more and more people's lives. What's different to me about the second Trump administration is that the stakes are much higher. So, you know, among other things, we've had emergency applications about, you know,

Whether, you know, immigrants are entitled to any due process before they're removed from the United States under the Alien Enemies Act. We've had emergency applications about whether Doge is entitled to access to all of our Social Security data. We've had emergency applications about whether the mass firings of probationary federal employees is lawful. And so it's just like it's just it is a broader set of issues pitched at a higher level of both legal and practical implications.

I'm curious right now, what are some of the cases that perhaps are more wonky but could have very far-reaching consequences on our lives? I think the Supreme Court's intervention in the middle of May in the case of Gwynne Wilcox, the former member of the National Labor Relations Board who was fired by President Trump despite a statute that said she could only be fired for good cause.

That may seem wonky to folks. That has enormous consequences for the independence or lack thereof of lots of different federal government entities that we actually quietly depend upon to be independent. When the president can just appoint his friends and buddies to run things, that I think will raise questions no matter who the president is.

about how objective those agencies are acting, about how reliable their information is. And so, you know, there are all kinds of ways in which some of these wonky emergency applications are clearing the way for pretty significant restructurings of the federal government in ways that may not be visible to us, but in ways that we will feel even if we can't see. At the center of the Wilcox case is an idea called unitary executive theory. Yes.

The reason why the Wilcox case is such a big deal is because when the Supreme Court intervened in the middle of May and cleared the way for Trump to fire Gwynne Wilcox and Kathy Harris, right, it was signaling that it is inclined to actually clear the way for really the full, complete version of the unitary executive in ways that are going to make it very, very hard to push back against a lot of what Trump is doing. Unitary executive theory is a way of looking at the Constitution that basically says that

The Constitution gives the powers of the executive branch, like being commander-in-chief of the armed forces or removing agency officials, to one person, the president.

If there are laws that get in the president's way, the unitary executive theory would say, well, those laws are unconstitutional. We have never in American history lived under the unitary executive theory. The Supreme Court has been moving in that direction for the last 15 or 20 years, but it has never fully embraced it.

Partly because our history has been defined much more by inner branch dialogue, by the notion that we should divide power, not sort of accumulate it in each of the branches. One of the things that's really striking, for better or for worse, about the second Trump administration is—

is we're seeing what happens when the unitary executive theory runs amok. Because, you know, here we have a president who has very, very strong controversial views, and he wants every single person dispensing even an ounce of executive power to share his views.

This raises, I think, a question that has come up a lot since the second Trump term began, which is who is the check on the executive power right now? And the answer, it seems, is the courts. Right. Obviously, the Supreme Court being the most powerful of all the courts.

And when we last spoke, it seemed like the conversation in the country was sort of centered around the Supreme Court having too much power, that maybe the Supreme Court's power had gotten too bloated and needed to be reined in.

And now, you know, as that unitary executive theory sort of illustrates, we're talking more and more about the executive taking too much power. We've been building toward that for a while. You know, as Congress has increasingly become not just dysfunctional, but just inactive, presidents of both parties have been left ever more to rely upon executive power and increasingly dubious claims of statutory authority to implement any of their policy objectives. That's not new.

I think what's different is that what folks like I had been criticizing when we criticized the Supreme Court as recently as, you know, six months ago, was that the court had basically become aloof from the separation of powers conversation. That the separation of powers depends upon all three branches pushing up against each other. As James Madison wrote in The Federalist, that ambition must be made to counteract ambition. And that the court had become too ambitious. Right?

Right. Well, the only upside of an ambitious court is that an ambitious court might be more inclined to push back against the ambitious executive. The problem there, right, is that we have a court that is at once very into its own power, but also very into executive power. Right. We have a majority of justices at the moment who are more supportive of a broader theory of executive power than we've ever had on the Supreme Court before. Right.

And so both things are true. We have a court that is very into preserving its own power, but also, you know, very, very willing to give the executive a whole lot of power. And then the question is, well, then who's losing out? Yeah. And the answer is Congress, right? The answer is that, like, it's not just that this is—

sort of ignoring Congress is that it is affirmatively disabling Congress, even if we had a responsible Congress from pushing back. So like Wilcox is a good example. Congress actually passed a statute that says you can't fire someone like Gwynne Wilcox without good cause. And, you know, that statute is just no, nevermind to the Supreme Court at this particular moment in American history. And that's really problematic because now you have the Supreme Court leaning into the

this space where we're just going to see more executive judicial confrontations going forward with less and less and less of a role for Congress.

I mean, I think in the long term, that's not sustainable. And it's part of why all of these emergency applications in the Supreme Court are so important, because those emergency applications are where the rubber's really hitting the road with regard to just what the Trump administration can and can't get away with. I think one of the things that, again, it sits in this like sort of murky, the unspoken territory where it's like,

That would require lawyers and courts actively being willing to continue to push back against the administration, an administration that said and shown that it is willing to take action against people who oppose it.

Well, an administration that has been critical to the degree we've never seen before of specific federal court judges, right? An administration that has questioned whether federal courts even have this power, even though they've exercised it consistently for two centuries, right? And so, you know, I think it's sort of, it is a longer term conversation where the administration wins just by not losing, right?

Where it can slowly erode public confidence in the courts, right? Where it can sort of try to sort of build up momentum for the notion that like courts are not to be trusted, right? It's part of this broader effort to just delegitimize those institutions that are sources of credibility in our discourse and our culture. What is something that you would say is,

people listening should be focusing on and what is something that perhaps is being misunderstood in this conversation right now? It's very common in the flow of the typical Supreme Court term for that last week of June, right about when folks will be listening to this, to be like the crescendo, the apotheosis of everything the Supreme Court has done that term, because that's when historically all the biggest decisions come out.

And I think the most important thing for folks to understand is that that's not this term. The Supreme Court used to be a sort of pay attention to it a couple weeks out of a year kind of operation. For better or for worse, I think it really is now a pay attention to it all the time kind of operation. And, you know, we ignore what the court is doing and we ignore what the Trump administration is asking the court to do at our peril. We reached out to the Supreme Court for comment on this episode.

They didn't respond. And that's it for this week's show. I'm Randa Abdel-Fattah. I'm Ramteen Arablui, and you've been listening to ThruLine from NPR.

This episode was produced by me. And me. And. Lawrence Wu. Julie Kane. Anya Steinberg. Casey Miner. Christina Kim. Devin Katayama. Peter Balanon Rosen. Akshara Ravishankar. Amber Tsi. Irene Noguchi. Fact-checking for this episode was done by Kevin Voelkel. It was mixed by Jimmy Keeley.

Music was composed by Ramtin and his band, Drop Electric, which includes Anya Mizani, Naveed Marvi, Sho Fujiwara. Thanks also to Johannes Dergi and Jessica Payne. And as always, if you have an idea or like something you heard on the show, please write us at ThruLine at NPR.org. Thanks for listening.

This message comes from NPR sponsor, 1Password. Secure access to your online world, from emails to banking, so you can protect what matters most with 1Password. For a free two-week trial, go to 1Password.com slash NPR. This message comes from Jackson. Let's face it, retirement planning can be confusing. It

At Jackson, we're working to make retirement clear for everyone, starting with you. Our easy-to-understand resources and user-friendly digital tools help simplify your entire experience. You can have confidence in your retirement with clarity from Jackson. Seek the clarity you deserve at Jackson.com. Jackson is short for Jackson Financial Incorporated.

Jackson National Life Insurance Company, Lansing, Michigan, and Jackson National Life Insurance Company of New York. Purchase New York. This message comes from NPR sponsor, Viore, featuring the Performance Jogger. Visit viore.com slash NPR for 20% off your first purchase on any U.S. orders over $75 and free returns. Exclusions apply. Visit the website for full terms and conditions.