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

[Intro]

Steve Vladeck: I don't blame any of the justices for how broader shifts in, you know, litigation that I think are mostly Congress's fault have put more pressure on the federal courts writ large. That doesn't mean that the lower courts are getting these cases wrong, such that the justices have to be intervening so often.

It doesn't mean that the court has to, you know, sort of upset the status quo in ways it never had before.

Kate Klonick: It's the Lawfare Podcast and Lawfare Live on Substack. I'm Kate Klonick, senior editor of Lawfare, with Steve Vladeck, professor at Georgetown Law, author of the incredibly prolific Substack, “One First,” and the New York Times bestselling book, “The Shadow Docket.”

Steve Vladeck: 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 adhering to any principles other than we can do what we want when we want. Because that's not judicial power, that's political power.

Kate Klonick: Today we're talking about the impact of the New York Times shadow paper story, the continued omnipresence of the shadow docket, and “the court” is lowercase versus “Court” uppercase in this administration.

[Main Podcast]

You didn't coin the term that was Will Baude at University of Chicago, but you certainly have 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 show is just, like, if you can define-fine it, what it is, kind of 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.

Steve Vladeck: Yep. So Will Baude coined the term to mean, and I agree with his usage, basically everything the Supreme Court does through orders as opposed to through the lengthy, you know, opinions we get in argued cases at the end of the term. So, some of that, Kate, is emergency applications, and that's obviously been the flashpoint for much of the conversation about the shadow docket over the last five years, but not all of it.

The wrangling in the Louisiana voting rights case about when to issue the judgment, right? That's on the shadow docket. Justice Alito's mifepristone 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 coined 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 at the certiorari stage is resolving the whole appeal. 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 such relief.

Kate Klonick: Yeah. So I think that this is fascinating. We've long wondered kind of what the—you've traced the, in particular, kind of the genesis of the, this moment, this switch in kind of, in particular, the emergency docket, as you said, like to this moment in West Virginia versus EPA. And you had said previously “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 like 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 that Jodi Kantor and Adam Liptak at The Times reported this leak like that centers on seven internal memos that they call the shadow papers 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 y- you know, like all of that stuff.

Why do these memos actually show us... What, 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'll, I'll kinda lead into this for the next question, but like what did this tell us about Roberts, I think, essentially?

Steve Vladeck: Yeah. Let, let's talk at Roberts for a second 'cause I think that's a longer and messier conversation. Sure. I think the first thing to say, Kate, 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 verse like a year and a half ago that was basically like, “Here's what we think we know about how the Court handles 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 getting into 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, these are like quick slap dash, you know, quick one-off reactions to the emergency application filed by the, you know, the clean power p- the power companies and the states. And so I think the first thing we learn is just- A lot of what folks had been suspecting define the Court’s internal procedures in these cases is true.

That these applications get super truncated process. They don't get d- discussed that much. They don't get considered that heavily. And I think that probably surprised a lot of people. You know, you, you have—

Kate Klonick: Also, like, what's the standard-- I mean, the standard of review is, like, is bizarre here. I mean, like, it almost feels like there's not...

Like, I'm-- Like I, I kind of was, like, having a, like, a civil procedure stroke, like, watching, like, like, like looking at them like, “Wait, what?” Like, he's, like, quoting from CNN? Like, what-- Or, like, whatever it was, he was like, and, like, something outside the record, and, like- So this, so, right ... using his impetus to s- like, just kind of unpack that for a second.

Steve Vladeck: And so I think this gets 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, is just how much short shrift it gives both Kate to what the lawyers would call the 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?

While, like, I mean, early litigation. I would have thought that would be something that Roberts would have at least acknowledged. He begrudgingly sort of says this is unusual in his second memo in response to Justice Kagan 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, like, nerdy lawyer perspective, this is what-

Kate Klonick: Yeah, I'm sorry to, like, get into it with for like for—if you're not a lawyer, like, follow along in, like, the show notes.

Steve Vladeck: Well, but this is what's most frustrating to me about the analysis, which is, you know, when any court is asked to grant emergency relief, what they're supposed to do, Kate, is they're supposed to balance the equities, right?

That's wh- that's the theory. Like, the, you're sort of looking at what are the odds we're gonna rule for you on the merits blended with, you know, how much harm is gonna happen if we rule for you now versus if we don't.

Kate Klonick: Right. It's like a let's just 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.

Steve Vladeck: Well, and what strikes me about Roberts's analysis, if you can call a two-and-a-half-page memo analysis, right, is just how much, how short of shrift it gives to the equities.

So first, it just takes at face value all of the power companies' claims about irreparable harm, even though Kate, Justice Sotomayor points out there's plenty of reason to not take those claims at face value. By the way, s- you know, spoiler alert, turns out Sotomayor was right. There's a really interesting piece up on the Yale Journal of Regulation by David Doniger about, like, how none of those claims turned out to be true.

But Kate, even if the power companies' claims about irreparable harm were correct, you're supposed to balance the equities, which means you'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—”

Kate Klonick: Oh, there's no discussion of the poor environment.

Steve Vladeck: Right. And so, you know, what I found really sort of striking was how desultory Roberts's balancing of the equities was. It really did give the feel that, like, he felt aggrieved by how the Obama administration had behaved in the Mercury case, the earlier case called Michigan v. EPA, and was just gonna block the Clean Power Plan no matter what.

Like, that's the vibe that comes through. Now, you know, since the reporting by Jodi 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 did what it did.

And I guess I'll just say, one, it's not what Roberts said, right? And two, it's really hard to reconcile the one-sided equities analysis in Roberts'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 irreparably harmed. Why wasn't that also a consideration here?

Kate Klonick: Why wasn't that also happening with, like, 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 is, is l- is, like, the tell for me. Like, I, 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... And, like, to then see kind of in these papers the thinness of the rationale behind it, that you're like, “Okay, well, if you were do- you were... This was how thinly you were analyzing this one departure, surely like the, like since then you haven't gotten like much deeper like on, you know.

So yeah, so that's kind of something that—

Steve Vladeck: Well, and if we're 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 the department in half?

Why weren't we worried about the harm to non-citizens about being removed to third countries where they might face, you know, torture and other forms of persecution? I mean, is it like part of the problem—I mean, you're, y- you know, I'm not the data person you are, but I do think that one of the things a lot of the court's 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 wanna push back and say, “You gotta look at the whole dataset.” And in the, across the whole dataset—

Kate Klonick: No, that's exactly right.

Steve Vladeck: Right. And across the whole dataset, you see a court that balances the equities differently way too often, at least apparently, based on the partisan or ideological valence of the dispute.

Kate Klonick: Yeah. No, I think that's exactly right. And so that kind of brings me to like kind of the Court's defenders and the non-defenders. And so Will Baude, like author of the term shadow docket, clerked for Roberts, as you kinda said, a 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 op-ed guest essay Q&A in The Times, defending, very vociferously defending Chief Justice Roberts. And I'm like, I'm gonna read the headline of the piece because I just—Like the—I saw it when it was like 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 a, well, you didn't bury the lead. And so, he basically argues that the “Shadow Papers” like define Roberts’s leg- like, you know, that the “Shadow Papers” is like this put a define Roberts’s legacy not flatteringly, but and 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 that Roberts is the boogeyman everyone 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 like what the reaction was.

Steve Vladeck: 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, Kate, 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 governing through executive order.

Executive orders are more vulnerable to being challenged in court than statutes are and that-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 do-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, you know, litigation that I think are mostly Congress's fault have put more pressure on the federal courts at large. That doesn't mean that the lower courts are getting these cases wrong, such that the justices have to be intervening 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 thinking that it's important for the court to write when it's gonna intervene in these respects.

I mean, one of the things that's so striking about the Clean Power Plan rulings is that there's nary a 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 to persuade us that this is justified.

And what 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 its ability to persuade us, not necessarily that we agree with their principles, but that they have principles.

Kate Klonick: It's truly like the, it's truly like the defining legitimacy of the court. I mean, like, I mean, truly, and like, and to the point that like—

Steve Vladeck: Which the court has said

Kate Klonick: Yes. And to, 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 these are not the smoke- maybe these shadow papers are not the smoking gun, and you can't like blame him entirely for like this shadow docket and what it has become.

But you can kind of blame him for the shape of the court as an institution. And he has defended and hi- 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't both say y- Roberts can't say that he's an institutionalist and then not take credit for what the institution has become.

Steve Vladeck: So I think that's right. I'll tell you one other thing, which is to give John Roberts sort of one st- 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 dissent on the emergency docket. So you might remember the Texas abortion case. Yeah. You know, Roberts was with the Democratic appointees. The Alabama redistricting case, right? Roberts was dissenting with the Democratic appointees.

So there was this period of time where it actually looked like he was trying to signal some frustration and some you know, 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 Jo- I wrote a post for my newsletter last year about, or I guess a year and a half ago now, about John Roberts' sharp right turn.

And there was, I mean, there was this like two or three-year period, Kate, where Roberts really had become the median vote. And sometimes even not even the median vote, like the justice most likely to vote with the Democratic appointees in these 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 concurring 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.

Kate Klonick: Yeah. So again, just really quickly, like, and then I kinda wanna leave Roberts and kind of move on to kind of the bigger question about the courts versus the Court. But I do kind of wonder this sharp right turn and I can't remember kind of come, how you come down in your piece, but I do wonder if part of the sharp right turn is about the threat to justices’ safety.

Generally, like 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 like changes their mind or makes them think that per- like personally affects them. And I have to think that like the amount of threats on 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's like the right thing, or maybe it's something totally different and I'm like, I'm off base, but ...

Steve Vladeck: I mean, 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 Baude made this point himself in a roundtable that he and Kate Shaw and I did last summer, where he said there's too much lawlessness for the 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 this time?

Kate Klonick: Yes, exactly. Okay, which was a w- which is a perfect segue into our next conversation, but keep going.

Steve Vladeck: 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 appeasing a bully tends not to work.

I'll just say more directly it radically-- 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, Roberts may think that granting emergency relief to the Trump administration preserves 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 raids case. Two, you are further disempowering the lower courts to stop the administration, which, you know, gets back to the relationship here.

But three ca- I think also, like we, the people who watch these cases are not stupid, right? It is 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 Roberts is supposedly so worried about reach 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.

Kate Klonick: Yeah. So about a year ago, 15 months ago, 16 months ago at this point you know, the second Trump administration moved against universities, it moved 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, of law professors, I think like it was Noah Feldman wrote a piece in, for Bloomberg that was like, you know, at like Harvard was like, “Trust the courts. The courts will hold.” I spoke to like a few kind of Court of Appeals justices that I'm like, like, and anonymously, and like they kind of all, they're like, “It'll be okay.

The courts will hold.” Like this will happen. And I was like, “I'm not sure that is necessarily true.” And certainly we saw kind of a s- a, like a, you know, in the early days, there just seemed to be the DOJ seemed to be so all over the place and not interested in a lot, what a lot of the lower courts were saying.

We have kind of the D.C. Circuit obviously having and oh my God, the case that was just, Oh my, what's his he's in everything. The justice that,

Steve Vladeck: Judge Boasberg?

Kate Klonick: Yes, Boasberg. Thank you. But yeah, Judge Boasberg's kind of contempt hearing that just you know, just like got like sent down the garbage chute.

And so I don't know, like there 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 there are reversed and unsigned orders. And I feel like we're watching this rift open up between lower courts and the Supreme Court, so like the courts lowercase versus the Court uppercase.

A- and I'm-- 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 armchairthought.

Steve Vladeck: So I mean, I am I'm writing the Harvard Law Review forward for the Supreme Court issue.

Kate Klonick: Oh, good! Congratulations.

Steve Vladeck: And, and-... and the title is “The Court Against the Courts—"

Kate Klonick: Oh! It is?

Steve Vladeck: Because it's a common theme. So you stumbled onto it.

Kate Klonick: That's so funny.

Steve Vladeck: And I guess, but 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.

The Alien Enemies Act has not been used since March 15th of last year.

Kate Klonick: I know. I was ... That's actually specifically what I was thinking—was like, wow, like, when that was getting pushed that felt so dangerous.

Steve Vladeck: And right, Abrego Garcia is 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. You know, the law firm executive orders the birthright citizenship executive order, like these things have never gone into effect, and had they, things would've gotten worse very quickly.

Kate Klonick: Oh, yeah.

Steve Vladeck: Right? So there is one bucket where I think it is absolutely the case that the courts have been remarkably important in standing up for 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, the courts have been sort of kneecapped and neutered.

And just to give the biggest umbrella category here is all of the spending and funding cutoff cases where, you know, all of that is illegal. And yet, right, the sort of the fighting 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.

Kate Klonick: Yep.

Steve Vladeck: And so the illegality of the government's behavior can only be resolved at the end of the case. 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. The, you know, sort of immigration detention cases we're seeing, right, where 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. I think 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 has taken. And my flashpoint for the latter example is Minneapolis.

Kate Klonick: Yeah.

Steve Vladeck: 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 needed, especially in January and February.

And there are doctrinal reasons why that's been true. There are Supreme Court reasons why that's been true. And so, you know, it really depends, Kate, on how you interface with this administration, whether the courts have been a useful part of the story or not.

Kate Klonick: Yeah. I think that's, I think that's exactly right.

And I do... You know, there were some things that the question was becoming, well, if the Court rules, the Court, 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 to the correct people or the correct institutions.

And so it's kind of like a beside-the-point type of, like, type of moment, and it's ex- That, for example, is exactly what a preliminary injunction is for. Like, right? It's like, it's so that you don't get into this situation where 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't get put back into the tube, even when the justices get to the merits part. And so that's kind of-- I don't know, like, what your thoughts are on the tariffs ruling, if that's an example of this or not.

Steve Vladeck: So I, I think the tariffs case is probably at the sort of decent end of the spectrum for this 'cause I think it's re- it's reflected less bad behavior by the administration and more sort of, shyness by the courts.

Now, I wanna elaborate on that, but there's a great article by Leah Litman and Dan Deacon in the Duke Law Journal called “Legalistic Noncompliance,” which really does get into this, which is how the administration oftentimes is not defying Kate, these court orders, but is sort of not complying with them either.

So there are bad-- I mean, there are flashpoint examples in the district courts of overt non-compliance and overt defiance. I mean, that's happening in a lot of the immigration detention cases, for example. The tariffs 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 Trade's original ruling striking down the tariffs for the duration of the appeal.

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. Right? They were sufficiently scared of the Supreme Court's shadow. I didn't even mean that. Right?

Kate Klonick: But no, I... But no, but it's the correct metaphor.

Steve Vladeck: Right.

Kate Klonick: I mean, it, right?

Steve Vladeck: And 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, it- 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 parties—

Kate Klonick: Yeah, there's a reason why no one appeals. Like, they're like—

Steve Vladeck: That's right. 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 to the Supreme Court as quickly aren't at least directly the Supreme Court's fault.

If we take ca- 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 ICE has tried to carry out, right, to treat all undocumented immigrants as if they were stopped at the border, even if they've been living here for 40 years.

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—

Kate Klonick: Well, he's gonna lose the birthright citizenship case.

Steve Vladeck: Right. He's gonna lose the birthright citizenship case. He's gonna lose the Lisa Cook case, right?

Kate Klonick: Yeah.

Steve Vladeck: All of these, like, rah-rah court cheerleaders—

Kate Klonick: I mean, they're probably gonna lose Chatrie, but who knows?

Steve Vladeck: But, right, I mean, I don't think Chatrie’s, like, a part of, like I- Chatrie’s like- No,

Kate Klonick: It's not a part of it.

But it's like, but it's symbolic a little bit, but yeah.

Steve Vladeck: Yep. But, like, all of the court's cheerleaders are gonna look at that and say, “See? Checkmate, Libs,” right? “The court is not in the bag for Trump.” And what I wanna say is, like, the court, it's not that the court has ever been in the bag for Trump, right?

It's 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 courts' power, and that's the problem.

Kate Klonick: Well, also of Congress's power, frankly.

Steve Vladeck: So, so the, 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 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—

Kate Klonick: Right.

Steve Vladeck: Would be doing a hell of a lot more to defend, you know, the lower court judges in these cases. And in fact, it's the opposite. They're going after them.

Kate Klonick: Well, I mean, that was one of the reasons I was so shocked, gobsmacked really by Boasberg's, by like, by their kind of, their just absolute dismissal of Boasberg's contempt finding.

I mean, Boasberg is a, I frankly like a left, a right of center judge. Very right of center. I mean, I know. This is not, you know, he's a seasoned player. I mean, like he's, I mean, he's, you know, this is like a small world, a rarefied air.

Steve Vladeck: He's a, he's a judge's judge. Like everyone knows him in D.C.

Kate Klonick: Right. This is not some guy writing opinions that like overly quotes Orwell, frankly, which has like been happening a little bit too much for my taste. Like this, you all know that like Orwell’s not binding precedent, right? Like, but I take the point, I take the moment. But like, yeah. I mean, we're, I mean, I was just like, how can you be so, so, 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 Boasberg's like D.C. Cir- I mean, he's been around for a... He's an OG. So like I just kind of, that's, you know, part of my question.

Steve Vladeck: And it's worth putting meat on the bone of what the attacks have been, right? Yes.

So President Trump has specifically called for the impeachment of Boasberg, which actually did get Roberts to say something last March. Yes. He said, “We don't impeach judges, we appeal.” Right? Very stern comment from the Chief Justice, right? The attorney the then Attorney General Bondi filed a frivolous misconduct complaint, right, against Boasberg.

The Senate Judiciary Committee in January held a hearing on impeaching rogue judges, and their examples were Boasberg and Judge Boardman.

Kate Klonick: Yes.

Steve Vladeck: I actually wonder if they have like a directory of federal judges and they were next to each other alphabetically. Right? 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.

And he said, “Come work for me because we're fighting at a war. We're fighting a war, and I need soldiers.” And it's just like- This is not normal. And it's not just that they don't have, like, Boasberg's back. It's, you know, the Gorsuch 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.

Ca- defiance of orders that had no explanation.

Kate Klonick: Yeah, they weren't even clear. Like, what are we doing? That's right. Yeah,

Steve Vladeck: Yeah. Like- 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, and increasingly that's coming ca- not just at the expense of Congress, as you say but at the expense of the lower courts in a context in which there are too many cases for the Supreme Court to do it all itself.

I mean, Justice Kavanaugh wrote this remarkable concurrence in the CASA birthright citizenship case last June, where he says, “You know, we just, we need a nationally uniform interim answer. That's what these emergency applications are about, and obviously that national uniform interim answer should come from us, not a random district judge in Boston.”

Right? Small problem—In CASA, the Court did not actually provide a nationally uniform interim answer to the question of whether the birthright citizenship executive order was legal or not. Like, so they're talking out of both sides of their mouth, and the problem is that you can, you know, take one side of the mouth and find some cases that support it, and you can t-take the other side of the mouth and find cases that support that.

Kate Klonick: Yeah. So that's, like, kind of my last question where I kind of wanna end, which is, like, is the only constraint on the Roberts Court? Like, is that where we are? You know, there is talk of Alito resigning early so that Trump can get in a younger appointee. 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. That really seems to be, like... I don't I don't think that's, like, a likely scenario here. You know, so if the Court is the problem like let's say for instance, what is the fu- what is the, what, where does the change happen? Where can we look for the change?

Is it the lower courts continuing to kind of, like, express this? Is it gonna 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? Maybe we're in a total war scenario, and that's a naive thing to think that we'd wanna do anyways.

And so, like, I'm just kind of curious what you, what your thoughts are.

Steve Vladeck: I guess I'd say 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 super majority. The problem is that the Court is not accountable, and it's never looking over its shoulder.

Kate Klonick: You know, when was the Court ever accountable, Steve?

Steve Vladeck: So I wr- I mean, I wrote about this last week in my newsletter. It was actually highly accountable for most of its first 200 years.

It was looking over its shoulder at Congress because Congress would do things like mess with its budget, mess with its docket, mess with its calendar.

Kate Klonick: Totally.

Steve Vladeck: Right? Mess with the justices' pensions as a way of, like, nudging them literally on or off the court. Congress has stopped doing that as part of the broader, I think, congressional abandonment of, oh, I don't know-

Kate Klonick: Of anything.

Steve Vladeck: Everything. Yeah. But what's interesting is 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 interbranch dynamic where the Court ca- 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 its shoulder when it does stuff.

In the shorter term, part of that story is persuading the Court itself that this is a problem and that, you know, sort of continuing to piss on us and tell us it's raining right, is not going to redound to its credibility in the long term. And so one of the reasons why, I mean, this all started with the Clean Power Plan memo 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 gonna take people not like you and me, but people like the Will Baudes 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 in a time, Kate, where folks are so, like, knee-jerkingly sort of either defending or attacking the court that I think the first step has to be disaggregating the results from the process, right, and explaining why there's institutionally problematic behavior that I think Isn't even about the results and could be fixed without changing the results dramatically

Kate Klonick: I, I couldn't agree with that, that take more.

I think that, like, the steps forward are kind of building a stronger Congress out and trying to kind of shore up the, like, the s- the strength of Congress, which is obviously diminished in, like, in comparison to the executive with recent decisions, but, like, can be empowered. It's like that is exactly, I think the 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 and kind of... I also am 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 ru- 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 than, like, something like a decision that I was like, like, you know, heartbroken over like Dobbs or something like that, right?

Well, sure. And so, like, that's my personal priors. That's my how I feel. Like, Roe 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 lose on a, like, something that I'm subjectively, like, you know, i- invested in if it's for procedural reasons, if it's for following the rule of law.

And I think that is something that I would like to see a little bit more adherence for pr- to principle. I'm not to, like, lecture, but, like, this is just kind of like a moment that we're in. No, I mean,

Steve Vladeck: It's back, I mean, it's back to where I started. Like, like, you know, we live in a pluralistic society, right?

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 p- 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 adhering to any principles other than we can do what we want when we want. Because that's not judicial power, that's political power.

Kate Klonick: Yeah, I totally agree. I guess we'll leave it there. Steve Vladeck, thank you so much for having coffee with me this morning.

This was, like, a really in, an intellectually invigorating start to my day. I don't dabble in Supreme Court probably, like, 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 hear from someone smart about what I should be thinking.

And yes, subscribe to Steve's Substack and newsletter and well, look for his forthcoming forward in the Harvard Law Review. Thank you all for coming and that is it for Lawfare Live on Substack.

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