On a recent episode of Amicus, Dahlia Lithwick spoke with Steve Vladeck, professor at the University of Texas School of Law, about the emerging “shadow docket” at the Supreme Court, wherein the conservative justices are signaling their intentions—and sometimes laying precedent—with quickly dashed off opinions. It shows what the conservative branch of the high court is willing to do now that they have the votes. A portion of their conversation, edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: I wanted to talk about the COVID cases. I know that it is a strange and wending path that we are on, where we’ve gone from, at the beginning of the summer, John Roberts voting with the liberals did not want to second-guess public health measures that are being instituted by states. Suddenly we’re in a whole new court, whole new world, and we have the archdiocese decision that is now being relied upon in all of its nonexistence for further decisions, including Thursday’s Kentucky Christian schools case. Parse out with me your thinking on why the court has been so aggressive on these cases, particularly when a lot of them are moot.
Steve Vladeck: First of all, this to me is Exhibit A so far of how Amy Coney Barrett has already put her mark on the Supreme Court. You mentioned the two big cases from the summer where Roberts joined the four lefties in leaving intact orders from California and Nevada. And this is a shift since Barrett came along. Now it’s 5 to 4 the other way. I was struck, especially in the New York case, by the chief’s dissent, because first of all, he doesn’t write dissentive opinions that often, and second, he doesn’t usually use them to attack his colleagues and yet here’s what happened.
I think part of what’s going on is that at least some of the five justices who are in the majority in the archdiocese case—Justice Neil Gorsuch, perhaps foremost among them—really are in the camp that states are being irrational in some of these COVID restrictions. Some of the lines they’re drawing just don’t make any sense. And insofar as the lack of logic in those line drawings implicates religion, here’s a perfect moment to look like you are a libertarian while also nodding toward the future of the court’s religious liberty jurisprudence. They already have this case on the docket from this term, Fulton v. City of Philadelphia, about whether they should overrule Employment Division v. Smith. Even if that’s not coming in Fulton, Gorsuch’s concurrent opinion in the archdiocese case is a pretty powerful sign that it’s coming sooner or later.
“I’m still trying to figure out how someone can be irreparably harmed by a policy that isn’t in effect.” — Steve Vladeck
There’s this broader debate about whether we should be applying ordinary modes of scrutiny to COVID restrictions or whether we should be more deferential to public health authorities. And I think the reality is that the Supreme Court and some other judges are being less deferential and they’re holding government officials and public health experts to a higher standard than we would usually hold them in other cases. And that’s really alarming. Justice Sonia Sotomayor pointed out in the New York case that the majority relies to some degree on statements Gov. Andrew Cuomo made to find sort of a discriminatory intent—and in the exact context where Donald Trump’s statements about the Muslim ban were pooh-poohed by most of the same justices. So I think it’s a confluence of three things: It is justices who buy into the narrative that some of the COVID restrictions have been overbroad, justices who are looking for opportunities to establish a foothold for this new religious liberty jurisprudence, and justices who for the first time in a very, very, very long time have the votes.
It knits back to your shadow docket concerns that when you have justices who are relying on shifting doctrine that was coughed up in a hairball late at night and is two paragraphs in per curiam and doesn’t fully grapple with the facts of the case, you are building a really kind of alarming house of cards because the reliance on cases that we don’t fully know even what the reasoning was, much less what the implications are. The shadows in the shadows are extra, I think, pernicious.
Not only that, but the court is starting to embrace them. I am a super procedural nerd when it comes to the Supreme Court and I don’t think anybody else cares about this, but one of the remarkable things that’s happened after the archdiocese case is there were cases from, I want to say, Colorado and California, where the churches had applied for emergency writs of injunction, and rather than granting them, the court treated the application as a petition for cert before judgment. So basically a direct appeal of a district court decision, granted them, vacated the district court injunction, and remanded for instructions to consider the impact of the archdiocese case when the whole point of the archdiocese case was that Cuomo got carried away. And so the court itself is now sending the message that when we’re issuing these rulings in COVID cases with either no reasoning or in the archdiocese case a short unsigned opinion, even though those are fact specific cases, we want lower courts to be taking those very much into account.
I have two sets of problems with that. One is I actually think it’s a real issue on the merits, but two, I mean, you said mootness. The notion that the court has taken up these moot cases and is handing down vague guidance that it’s then using to instruct lower courts to reconsider nonmoot cases. It’s hard to explain to the layperson why that’s so offensive as an exercise of judicial power, but it is really. It is the court being much more aggressive in this context than it has previously. And I think a large part of that is because the speed brakes on that kind of aggressiveness were Anthony Kennedy and then to a lesser degree John Roberts, and the brakes are no longer there. And I don’t see a Justice Brett Kavanaugh as a speed brake here, and I see Gorsuch as almost leading the charge.
And maybe just the final layer to this worrisome trend has to be the dissenting justices saying, yeah, yeah, we get it. It’s moot. We’re afraid it’s going to come back. That’s kind of strange: We acknowledge there’s nothing left to decide, but unlike any other case, we’re going to just do something aggressive in advance of actual new moves.
There was a line in there in Gorsuch’s concurrence that Cuomo might decide to reinstitute this thing. So problem No. 1 is that is usually a consideration that goes into whether a case is jurisdictionally moot and comes as part and parcel of analysis that the government’s policy is capable of repetition yet evading review, or that there was voluntary cessation. Fine, but on the question of whether the Supreme Court should issue an emergency injunction when no lower court did, the party seeking the injunction is supposed to show irreparable harm. And I’m still trying to figure out how someone can be irreparably harmed by a policy that isn’t in effect. The court is basically taking procedural shortcuts through the shadow docket to send messages because they know they have a majority that wants to send these messages. They don’t have a suitable merits case in which to do it and so they’re pulling cases off the shadow docket, where they can say what they want to say.
That’s why I keep using the language of signaling, because it seems as though this is weird flashing lights. There’s nothing to affix it to other than No, we’re really, really serious about religious liberty and assuming animus whether or not it exists. Part of what you’re grappling to explain and I’m grappling to explain is that in some ways it has no effect, but in some ways, it is built on nothing. And so it has an effect, even if it’s just a signal.
The archdiocese case is a great example: The Supreme Court’s decision actually requires Cuomo to do nothing. And yet the Supreme Court’s decision is going to affect how so many local and state officials going forward think about these kinds of restrictions and how many lower state and federal court judges analyze these kinds of restrictions in future cases. And I’m the last person to say the court lacks the power in this context. Formally, I think they have the power to do it, but there are reasons why there are these prudential constraints on their power to issue these kinds of injunctions and these kinds of orders.
To hear the rest of their discussion, plus Dahlia’s conversation with Michigan Secretary of State Jocelyn Benson, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.
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