Marc Elias: Steve Vladeck, welcome to Defending Democracy.
Steve Vladeck: Thanks Marc, great to be with you.
Marc Elias: I want to start with your recent book and the thing many people know you best for: the Supreme Court shadow docket. I described it in the intro as a trick the Supreme Court uses late at night or at off hours, when we are not all assembled awaiting decisions, to issue big rulings. We do not always know why they are ruling the way they are, but they seem to have enormous consequences. Can you start by giving us your view? Is there a legitimate use for the shadow docket, and why has it become something that now seems to frankly be the rule rather than the exception for how we get big cases?
Steve Vladeck: Marc, it is a great question. There is no question that every appellate court needs some ability to provide emergency relief. There are always going to be cases where, even if the lower court may have been right or it's a close case, the equities skew heavily in favor of restoring the pre-lower court ruling status quo. This is whether it is putting a policy back into effect or putting a policy back on hold. The problem is not emergency relief as such. All the way up into the 1980s, the Supreme Court had a pretty clever system for emergency relief involving just one justice. That justice could hold arguments in chambers and write opinions in chambers. You would have a lot of process, but no one would ever confuse a single justice's ruling for that of a full court.
The problem that has arisen, and the reason why we have seen so much more action on the Supreme Court's emergency docket, is that the justices have really run away from what I would have thought were pretty conventional norms of how judicial decision-making is supposed to go. This really started about 10 years ago, and now the court is comfortable having these orders that produce massive effects that are not signed and are often not explained at all, just expecting everybody to deal with it. It is the combination of not explaining yourself and acting in ways that, without those explanations, certainly look like they are more about partisan political preferences than adherence to neutral legal principles.
Furthermore, Marc, they are increasingly treating even these unexplained orders as precedents that lower courts are not just bound to follow, but that the justices are yelling at lower courts for allegedly defying. So it is not emergency relief in the abstract that is the problem. It is the way that the current Supreme Court has operationalized and expanded it, but in spades as President Trump has come back to the court for this kind of relief so many times over the last 12 months.
Marc Elias: I want you to put on your law professor hat for a moment. The thing that has surprised me the most is the precedential effect. These are not argued cases; these are not opinions. I have been surprised by how this has reached the area that I practice in, which is voting and elections. There are a couple of these shadow docket rulings that now just regularly get cited, and it is not even clear to me that there is a five-justice court for what they are being cited for.
There are a handful of areas of the law where the Supreme Court doesn't have a choice; they have to take a case on direct appeal. One happens to be in an area I litigate: three-judge panels in constitutional voting cases. As a young lawyer, one of the principles I passed on to others is that if the Supreme Court summarily affirms or reverses a lower court, it only has the narrowest precedential value. You cannot extrapolate out from that anything other than the narrowest possible reason for that action. Yet the shadow docket doesn't seem to follow those same rules. What am I missing?
Steve Vladeck: I don't think you are missing anything. I think it is the justices who are missing the hole they are driving into the middle of the coherence of their view of precedent. When the shadow docket first became a real lightning rod in the fall of 2021 with the Texas abortion case and a series of COVID cases, Justice Alito gave a very visible speech where he was adamant that these orders are not precedents. There has been this concerted effort by Justice Kavanaugh to rebrand the emergency docket as the "interim docket" on the theory that the court isn't resolving anything.
But your election experience is ground zero for just how untrue that is. These rulings are having effects not just for the parties in those cases, but for other courts in other cases. What we are seeing is the Supreme Court over and over again, maybe thinking it has resolved something internally, but then expecting lower courts to understand what they have resolved.
Just one example: there was a case from last summer where President Trump had tried to downsize the Department of Education, and a federal district court blocked it, saying what was proposed would violate the law. The Trump administration went to the Supreme Court and had three arguments for why they should get a stay. The Supreme Court grants a stay with no explanation. We have no idea which of the arguments the justices endorsed. Were they endorsing it on merits? Were they saying this was the wrong court? Were they saying these were the wrong plaintiffs? That kind of behavior is what has made the court's emergency rulings so controversial — not the notion that the court is intervening in emergencies in the first place.
Marc Elias: Right. The Supreme Court in that instance isn't actually even given the opportunity to decide the merits. All they would be deciding is that there is a likelihood of success on the merits. At the very most, it is that they are likely to prevail, but it is not actually a ruling on the merits itself, and yet these are being treated like fully argued and briefed merits cases.
Steve Vladeck: I think the problem is that I get a lot of grief for the notion that these procedural objections are just masking our substantive disagreements with the Supreme Court. That's baloney. The reality is that the Supreme Court's credibility and its legitimacy come from the perspective that the court is acting judiciously. One of the ways the court persuades us that it is acting judiciously is by espousing principles — maybe not principles we agree with, but principles that we agree are principles.
The problem happening over and over again in these emergency rulings is that the court is either not espousing any principles at all and then expecting lower courts to follow something, or moving so quickly and writing so little that it is hard to understand.
Consider all of these cases about whether President Trump can fire officials without cause, where the Supreme Court just waves its hand and says there is a magical exception for the Federal Reserve. That might be good for the stability of our economy, but as a matter of legal coherence, does the court look like it is actually acting from principles? Even these short explanations are really doing a grave disservice to the court's ability to defend itself against charges that it's just voting with the justices' partisan policy preferences.
Marc Elias: I think that is exactly right. For the record, some of the shadow docket rulings I'm concerned about in the voting space are "good for the goose, good for the gander" kind of rulings. So I agree with you; there is a genuinely principled concern about this.
I want to ask you a broader question about the court. A lot of the concerns about the court are what I will call procedural, some of the objections are doctrinal — originalism or textualism, and then there's a category that I'll call structural. Should there be more justices? Should they have term limits? Should they have ethics rules? What is your take on the problems with the court right now?
Steve Vladeck: I think that it all reduces to one core problem, which is a really astounding lack of accountability. If you look at the court historically, for much of its first 200 years of existence, it was part of this regular robust inter-branch dialogue with Congress and the presidency about the scope of its powers, the substance of its rulings, its budget, and things like circuit riding. There were so many big and little ways in which there was this ever ongoing push and pull between the democratically elected branches and the court. And that has just stopped.
We have really seen Congress take hands off the court progressively over the last 40 years. I think what we have seen happen over the last 10 or 15 years is the consequences of this complete departure of accountability where the court is no longer looking over its shoulder.
It was obscured for a while because for most of our lives, the court had a really well-tended middle. The real shift since 2018 is that the court doesn't have a middle anymore; it has a median. So I actually think the court's behavior on emergency applications and some of its more aggressive doctrinal moves are really just symptoms of this broader disease, which is that the court doesn't think it has to account to anybody.
Justice Alito captured this perfectly in a quote he gave to the Wall Street Journal in 2023: "No provision in the Constitution gives Congress the power to regulate the Supreme Court, period." That's incorrect. Article III, Section 2 gives Congress the power to make regulations to the Supreme Court's appellate docket. Justice Alito is capturing this broader idea that the court isn't currently accountable and doesn't think it ought to be. I actually think almost everything that's wrong with the court structurally flows from that shift, which is a relatively recent one.
Marc Elias: Why do you think they have shifted in the power dynamic with Congress and have actually been less protective of their powers vis-à-vis the executive?
Steve Vladeck: Congress was the moving party in that story and Congress stopped moving. This actually predates the more recent polarization of Congress. Even when Congress had liberal Republicans and conservative Democrats, Congress started to leave the court alone because they thought the court was acting responsibly and made the classic logical error that because you've been acting responsibly to this point, we can trust you to act responsibly in the future.
Marc Elias: It reminds me of Justice Ginsburg's line in the voting rights case about the umbrella. You don't put away the umbrella because you're not getting wet in a rainstorm.
Steve Vladeck: Right, the umbrella. The executive branch is trickier. I think that the court has done a remarkably subtle job of enabling President Trump over the last 12 months without actually ceding its power to him. They've been perfectly happy to cede lower court power to the executive branch — for example, in the CASA case where they limited universal injunctions. They've been perfectly happy to cede legislative power to the executive branch. But actually, in the few moments where it really mattered, the court has stood up to President Trump when it was about the court's power as such.
I think the court really is doing lots of things to aggrandize its power at the expense of everybody else. I'm not sure that is healthy in the long term, but I think it's again a symptom of this same disease.
Marc Elias: I also think it's a fool's game because at the point they are ceding the power of lower courts, they are sowing the seeds. There's not a huge jump between disregarding district courts and court of appeals and disregarding what the Supreme Court says.
Steve Vladeck: 100%. When you have Stephen Miller out there saying that judges who rule against Trump are part of a judicial insurrection, is the average person who actually thinks Stephen Miller is not full of crap going to understand the difference between a district judge and a Supreme Court justice who rules against Trump? I don't think so. You're exactly right that they're not thinking about the long game here; the more they're eroding credibility in the lower courts, the more they're eroding the credibility of the whole of the federal court system at large.
This is part of why I think it's a real problem that the court hasn't stood up for the lower courts whose rulings have been defied. There is this effort afoot to try to impeach two federal judges for rulings the Republicans disagree with. So I think it's all of a piece: the Supreme Court somehow thinks it's immune to all of these shifts and pressures and tensions, and I'm very worried that it might not be.
Marc Elias: Let me ask you a question about how the justices view the world. I graduated law school in 1993, and at that point, I had a pretty good sense of what it meant to be a conservative Supreme Court justice. It was a balance between originalism or textualism versus a more modern interpretation, alongside a strong bias toward federalism — protecting states in cases like whether the minimum wage applies to state governments. I am having a hard time finding a jurisprudential through-line to the current majority. It feels idiosyncratic to who is before them and who they think should win or lose. Many people are very cynical about the Supreme Court; I am moderately cynical. What do you make of it?
Steve Vladeck: I am in the moderate cynicism boat with you. The first thing is the Supreme Court is a "they," not an "it." There is a real difference between the Thomas-Alito-Gorsuch block and the Roberts-Kavanaugh-Barrett block. Thomas, Alito, and often Gorsuch vote almost straight line for Republicans, frequently appearing in dissents where nobody else joins them. The harder call is the median block—the Chief, Kavanaugh, and Barrett. Their moderation relative to the other three does a lot of work, and it is a very different median than the O'Connor-Kennedy-Rehnquist era. These justices lack those same deep commitments to particular principles.
This lack of predictability is part of the problem. It makes it even more incumbent upon the Supreme Court to try to assuage people that there is real principle here. I believe at least six of the justices are still doing something that can reasonably be called law, even if their lines aren't where mine are. I expect Trump to lose the Lisa Cook case and the birthright citizenship case, though the tariffs case will be closer.
Marc Elias: I am with you on two of those, but I view the Lisa Cook case differently. There is no principled distinction for why the Federal Reserve is uniquely independent, other than justices not wanting to see the market crater.
Steve Vladeck: I am not defending that; I think the Supreme Court had already crossed that line. To me, the Lisa Cook case is about whether the president can fabricate a cause for removal. In the Slaughter case, the Supreme Court wrongly decided to get rid of Humphrey's Executor while carving out the Fed for bespoke reasons. Neither of those prongs make sense. However, independence for any agency is pointless if "cause" simply means whatever the president says, or if the person fired cannot challenge the grounds for removal. That is why the Lisa Cook case is the Supreme Court actually doing the law. For that median block, it would be inconsistent to hold that the Fed is uniquely independent and then fail to enforce that principle even against a president they generally support.
Marc Elias: Are there any other independent federal agencies under the Supreme Court's current announcements, or is it bespoke to just one?
Steve Vladeck: I think it's a class of one until we find the second.
Marc Elias: I'm picking your brain here. The Federal Election Commission regulates campaign finance and was set up specifically as a bipartisan, six-member body that cannot act without four votes. No one party can have more than three members. Do you think that is the kind of thing conservatives would find persuasive, or do those agencies also fall?
Steve Vladeck: No. The real nail in the coffin was when the Supreme Court grouped the National Labor Relations Board and the Merit Systems Protection Board together in the Wilcox case. The MSPB exists solely to resolve internal employment complaints; having it politically accountable to the president at will makes no sense. The lower courts thought the MSPB could be distinguished from the NLRB, but the Supreme Court smushed them together. The claim that the Federal Reserve is bespoke is analytically and historically false, but this Supreme Court tends to wave its hands at stuff. It is the Fox News version of constitutional law.
Marc Elias: Justice Scalia was often principled in his rhetoric. In Doe v. Reed, he sided with the progressive side by holding that people do not have a right to sign petitions anonymously. He believed political activity required disclosure and even noted there was no original right to a private secret ballot. There was a force to how he wrote; it was not a mile wide and an inch deep. Recent opinions make me feel like I’ve eaten a meal but am still hungry.
Steve Vladeck: I saw this while teaching the Bost case. Congressman Bost challenged Illinois' rule on counting certain late-arriving mail-in ballots. The lower courts held he lacked Article III standing because he couldn't show injury; he won his election by a large margin. Normally, that means no standing, but the Supreme Court ruled 7 to 2 that he does. Justices Barrett and Kagan concurred on the narrow ground of "pocketbook injury" due to litigation expenses, but the majority went further. They created "automatic candidate standing" for any challenge to election rules. From an Article III perspective, that is totally insane. It is a John Roberts opinion written to convince the choir rather than to persuade the skeptical.
Marc Elias: The opinion is very "right-coded" and focused on election integrity. It reads like it was written for a specific audience.
Steve Vladeck: It is exactly the opposite of the Chief’s claim that it will reduce chaotic democracy-affecting litigation. Now, an outlier candidate with 1% of the vote can bring a lawsuit even if there is no chance it changes the result, which creates public doubt. Late-arriving mail-in ballots postmarked by election day are not fraud; they are the result of voters following the rules. This case is a microcosm of the Supreme Court making its own life harder by choosing an ideological split over a narrower ruling.
Marc Elias: The Chief Justice says a candidate with 10% of the vote is better off with a "fair" election than a coin flip. But a coin flip gives that person a 50-50 chance of winning.
Steve Vladeck: Justice Jackson’s dissent correctly argues that elections are for the people, not the candidates. The majority assumes legislatures deserve no deference, ignoring the history of tie-breaking by lots. Choosing an arbitrary, non-biased procedure for ties is not inherently pernicious. This is another instance where the Supreme Court could have ruled for Bost on narrower grounds and kept Justice Kagan in the fold.
Marc Elias: This leads to the Louisiana redistricting case, Calais. Black Louisianans sued for an additional Black opportunity district under the Voting Rights Act. When the legislature complied, "non-African-American" plaintiffs challenged it as a racial gerrymander. The Supreme Court reordered the parties to re-argue whether the VRA itself is constitutional. It feels like the Supreme Court is forcing them to address an issue they agreed should not be resolved here.
Steve Vladeck: This is the "YOLO court" that does not believe in judicial restraint. The Supreme Court's real power historically derived from the perception that it was not power-hungry. Refusing to acknowledge the cost this behavior has on public faith is the part I don't understand. Why doesn't the Chief see this? We must build a narrative that even moderate Republicans should value the Supreme Court's long-term power over short-term wins.
Marc Elias: As an associate, I learned two maxims: practicing lawyers let their briefs do the talking, and serious academics write things nobody wants to read. You are a prominent public commentator; am I living in an outdated view?
Steve Vladeck: I see my job as an academic doing work that improves the institutions I care about. A decade ago, it seemed academics were missing an opportunity to educate the public. Given how inseparable law is from our public policy conversations, those with the capacity to raise public understanding should do so. It is not my first job, but it isn't my last one either.
Marc Elias: Do you find your law students are more cynical? How do you approach teaching in this era?
Steve Vladeck: I teach at Georgetown, where students are highly engaged. I see a combination of cynicism and energy. My job is to acknowledge the difficulties and trampled norms while showing that law still matters as an organizing principle. The fact that this Supreme Court draws the line of law in a different place than I would does not mean it isn't law. I want them to walk out thinking the rule of law is worth fighting for. In Federal Courts, you learn that you can sometimes win without winning — success without victory. Fighting for systemic principles still has value.
Watch the full interview here >>>
.png?upscale=true&height=50&upscale=true&name=Bluesky_Logo-grey%20(2).png){kind=logo}
