Confusion Over Shadow Docket & Is Alito Retiring?

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1:52David Super:that moves the business. Let's create smarter business. IBM. This is Bloomberg Law with June Grosso from Bloomberg Radio. There's been a lot of criticism from all quarters, including Supreme Court justices, of the court's emergency docket, often called the shadow docket because of its lack of transparency. Often the majority doesn't include their reasoning when issuing these orders. Well now federal appeals court judges are butting heads about the role of the emergency docket and how much weight lower courts should give those orders. With one judge saying it forced lower courts to divine binding doctrine and another lamenting his colleagues rhetorical assault on the high court.

2:42My guest is constitutional law expert David Super, a professor at Georgetown Law. David, everyone knows that judges have to follow Supreme Court precedent. Are the court's decisions on the emergency docket any different?

2:57David Super:They can be different if they aren't explained, because the lower courts are bound by the Supreme Court's holding. But if it's only holding is that an injunction in this case or that is stayed and they don't give us any reasoning, then the lower courts are not bound by reasoning that they are speculating. They're bound by what the court tells us to decide cases. And we've seen before, and I think we talked about pushback from lower court judges complaining about the lack of guidance. One judge wrote that recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved.

3:47But now we have this disagreement about the emergency docket coming from appellate judges on the Fourth Circuit. So this was in a case related to Doge. Tell us what the majority, the en banc majority, decided in that case.

4:02David Super:Yeah, the case was about an injunction limiting Doge's access to extremely sensitive Social Security information on you and me and hundreds of millions of other people. And the Supreme Court had previously held that an earlier lower court injunction in that case could not be enforced until appeals were fully exhausted up to the Supreme Court. And so what the majority in the Fourth Circuit decided was that it was going to send the case back down to the district court. It was not going to purport to reinstate an injunction because the Supreme Court had pretty clearly said it couldn't do that. That's the majority.

4:49And this prompted a rebuke from Judge James Wynn, who was joined by four other judges. And he argued that his colleagues were treating Supreme Court emergency docket orders as precedent they must follow. Quote, to treat interim orders as binding precedent abandons our long-held jurisprudence of deciding constitutional law through reasoned opinions. Is this just utter defiance?

5:18David Super:It's absolutely not defiant. It's actually very traditionalist. And the Supreme Court has lectured us often on the importance of following the rules that were in place when the Constitution was adopted. And this is, although it doesn't call itself originalist, this is originalist, in that courts have two entirely different functions that they often perform in the same case. They decide the rights of the parties before them, and they make precedent for the future. Those are different functions. And nobody, not the concurring justices, not Justices Jackson and Sotomayor, nobody questions that the Supreme Court can decide the rights of the parties before it on the shadow docket.

6:00David Super:The question is whether when it issues an order for the parties in front of it without an opinion or without a meaningful opinion, if that should be also treated as precedent. And the history is that courts issue opinions to tell us why they're deciding things. Often the parties are making half a dozen different arguments, and knowing that that party won doesn't tell you which of those six arguments was persuasive with the court. And if we just guess as to why the court did what it did, we'll often be creating law out of thin air, playing ventriloquist, which is not the lower court's job. It's not any of our jobs.

6:45In a case where the Supreme Court allowed President Trump to temporarily remove three Democratic members of the Consumer Product Safety Commission, the court stated that while interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. What does that mean?

7:07David Super:Well, there's a lot to unpack there. When they say it doesn't decide the merits of that case, it means that the party's rights are not finally decided. The parties can continue to litigate the lower court and come up to the Supreme Court. So that part is well understood. Then the question is, what kind of precedent is it? And the justice there says that it informs what the lower courts can do, but only in like cases. When you don't have much of an opinion from the Supreme Court, It's very hard to know what like cases are, and it can inform only to the extent that it provides information. And if they don't tell us what's important, then it's very hard for lawyers or judges or voters to know how they are to change what they're doing.

8:03David Super:Also critical here that the justice mentions equitable discretion. Equity is not a system of rigid rules. Equity is a system of judges applying judgment. And that judgment should be consistent with the general principles of our system, but it's never a rigid process. And so asking lower court judges to act rigidly in an equitable case is like asking for a ocean without any water. It doesn't work that way. Speaking of water, Judge J. Harvey Wilkinson III, who's a Reagan appointee, said in his concurring opinion that Judge Wynne's warning creeps too near the water's edge of defiance for my comfort.

8:50And he described it as a rhetorical assault upon the Supreme Court. Then Wynne came back in his opinion and said, if anything creeps toward the water's edge, it's the notion that lower courts must divine binding doctrine from orders that say nothing of the kind. It does seem to put lower courts in a terrible position.

9:10David Super:Well, it does. And there are two distinct criticisms of the shadow docket that really need to be separated here. One is about inputs and the other is about outputs. There are a lot of criticisms, which I share, that they're taking too many cases and they're not getting the benefit of lower court decisions of a fully developed record or oral arguments, and that that can lead to them making bad decisions, decisions that are much worse than the same court would have made if it had proper inputs. But there's a second distinct complaint about the outputs that they don't give us much in the way of opinions.

9:48David Super:And that's what we're arguing about here. I suspect Judge Winn would just assume the Supreme Court take fewer cases on the shadow docket. I actually suspect Judge Wilkinson would agree with that. But if they're going to take the case and decide it and expect it to be treated as precedent, they need to write opinions telling us what the precedent is, allowing us to figure out what cases are governed by it and what are not. And there's a very old tradition of lower court judges criticizing, often very directly, Supreme Court decisions and complaining that Supreme Court decisions don't give them proper justification.

10:28David Super:There's a very famous case by Judge Learned Hand, one of the most respected district judges of the 20th century, nobody's liberal, complaining about a decision that the Supreme Court did and basically saying their rationale is so thin, I'm not going to apply it as precedent because I don't know how. And that's in all the books. I teach it every year in my course. That is certainly not a disreputable opinion. And yet Justice Neil Gorsuch scolded lower court judges for not following Supreme Court rulings, saying lower court judges may sometimes disagree with this court's decisions, but they are never free to defy them.

11:11But other justices are critical of the shadow docket themselves. For example, there was a recent appearance by Liberal Justice Ketanji Brown Jackson and Conservative Justice Brett Kavanaugh. She said that the court's increasing willingness to intervene before lower courts fully resolve disputes creates a warped system. But he said he didn't relish the increase in emergency petitions, but they're required to take action one way or another when emergency relief is sought. I mean, are they being pushed into this by the Trump administration's actions that are being held back by lower courts?

11:52David Super:Well, the Trump administration is a revolutionary administration, and you can be happy or unhappy about that. But they are trying to overturn the way things have been done for many years, in some cases for the whole history of the republic. And if you like it, you call it draining the swamp. And if you don't like it, you call it lawless. But they're doing a lot of radical things. It's no surprise that when you put forward a radical program, you get sued a lot. Franklin Roosevelt was sued a great deal when he put forward a radical program. Abraham Lincoln was sued a lot when he put forward a radical program.

12:29David Super:So we shouldn't be surprised by that. And saying that the Trump administration is being burdened in a way that prior administrations that followed our political and governance customs were not really isn't a very persuasive argument. It is true the Supreme Court is getting many, many more petitions from the Trump administration than prior administrations filed, but that really is attributable to the court itself. It grants a great many of them, which causes more to be filed. I'm aware of cases in prior administrations where there was a strong desire to file one, and the Solicitor General basically said, we don't get to do this very often, and this isn't one of the few cases I'm willing to do it on.

13:18David Super:There's no one saying that in this administration. They just file, file, file. And actually, Justice Sotomayor, during an appearance last Thursday, said the court had itself to blame for the flood of emergency appeals. And she pointed to what you were just saying. Stay with me, David. Coming up next, we'll talk about the rumors that Justice Alito is going to retire. You're listening to Bloomberg. Justice Sonia Sotomayor has been on the road making public appearances, speaking about her latest children's book and her experiences as a Supreme Court justice. Sotomayor took an unusually public and pointed swipe at fellow Justice Brett Kavanaugh while speaking at the University of Kansas Law School.

14:04It related to a September 8th emergency order issued on the shadow docket where the justices paused lower court rulings that had temporarily barred immigration agents from targeting people based solely on their language, occupation, race, or presence at locations such as car washes or bus stops. In a concurrence, Justice Brett Kavanaugh said, legal residents promptly go free after typically brief encounters with authorities. Well, without naming him, Sotomayor said, quote, I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour.

14:52I've been talking to constitutional law professor David Super of Georgetown Law. David Sotomayor has vented her frustrations at public events before. But this surprised me because it seemed to be a personal attack on Kavanaugh. And you don't usually see justices criticizing each other in public. They always claim that they get along wonderfully.

15:18David Super:You don't usually hear that. And I think the reason you don't is because they're afraid that it will interfere with their ability to work with one another in the future. But when justices believe that there already is no ability to work together, frustration can boil over. There are not a lot of controversial cases on which Justice Sotomayor and Justice Kavanaugh have been on the same side. And there have been quite a few where it's been otherwise. But I think that the point that she's making, perhaps more bluntly than some would, is an important point and about the shadow docket. Justice Kavanaugh asserted as an indisputable fact that U.S.

16:06David Super:citizens and legal permanent residents are immediately let go. There's overwhelming evidence that's not true. and if the Supreme Court was taking cases that were properly developed in the lower courts on the facts, it would know that's not true. And it could say we don't care or it could say we will allow orders designed to make that so or it could say this means these stops are inappropriate, but it wouldn't be able to make absolute assertions of fact that are simply false. And if you want to decide cases on the law, maybe there's an argument for an emergency docket, although I don't agree with it.

16:49David Super:But if you want to decide cases on the fact, which he's doing there, then you have to let the lower courts develop the facts. By the way, those are now referred to as Kavanaugh stops. Two days later, Sotomayor said in another appearance that she has civil relationships with virtually all of her fellow justices and that she regards many as friends. I mean, what happens, do you think, the next time they go into conference, which is Friday? Is there frostiness in the room, unease, or is it just, you know, another conference? I mean, these are professionals, and I'm always a little skeptical about the claims that these people are big friends of one another.

17:32David Super:I know Justice Ginsburg and Justice Scalia went to the opera together, but I think that in many ways, these are nine independent offices, each in the same building, that interact mostly through paper and occasionally in fairly formal ways like oral arguments and conference. So I'm not sure that this changes a great deal. I don't see a lot of outward evidence of much comedy. The court is working very, very fast. I'm sure it is jamming the dissenting justices to work to all hours to get their dissents out rather than holding up and giving them a little bit of time, which has been done on very, very big cases in the past.

18:19I can imagine she must be frustrated because she's on the wrong end of the six to three decisions, you know, so often, the liberals. And she was asked by a University of Alabama law student about how she's built bridges with the court's conservative majority. And she said, if you mean bridges, convince them that they're wrong. I dissent so much. I'm not very successful. Do you think the liberal justices have sort of given up trying to convince their conservative colleagues?

18:46David Super:No, I don't. I think that all three of the liberal justices are very capable, very talented, and all three of them chose to take appointments on the court at a time when they knew they would be in the minority. I see no evidence that they've stopped working. And on cases where the majority doesn't have strong views, and some of these are very important cases, you do see 7-2, 8-1, 9-0 decisions. And so the court is functioning, and the liberals are functioning, and they have credibility with at least many of the conservatives. You know what I do miss? I do miss the hot bench and also the laughs when Justice Scalia and Justice Breyer were on the court together and trading comments at times.

19:41Now the oral arguments are mostly very somber. Sometimes there's a laugh, but not often.

19:47David Super:Unfortunately, that's true of our political system more generally. You think of funny senators, and most of them are dead. And you think of funny presidents. I don't think any of the last several would count as funny. Our last funny president, I think, was Ronald Reagan. Who since then, really? So I think it's not surprising that the Supreme Court is reflecting us. In many ways, the Supreme Court reflects the country and often in ways that embarrass us appropriately. That's a great point. Finally, there is speculation that Supreme Court Justice Samuel Alito, who's 76 and has not announced his retirement, but that he might retire to give a Republican president the chance to replace him.

20:40He is the second oldest justice, but he's years away from the age when other justices retired. Justice Stephen Breyer was 83. Justice Anthony Kennedy was 82. And Justice John Paul Stevens was 90. So do you think this talk of Alito retiring is just pure speculation? You're in D.C. Tell us.

21:03David Super:And if there's one thing we love, it's pure speculation. I mean, I don't know. Justice Alito is, if anything, too young to be president of the United States. So I don't know what he thinks he's doing at age 76. Maybe he's going to go for an internship somewhere. But it's hard to know. This is an amazing job for most of them. Justice Souter didn't care for it, but most of them love it. And Justice Alito is still very sharp. He's writing opinions that reflect what he wants to do. So it would surprise me if he would walk away from it. And I can also imagine that some justices, certainly the chief justice, urging him not to do that because it would make it look like a political move, like he's trying to give a seat to President Trump to fill rather than doing the job as long as he's capable of doing it.

22:03David Super:So I hope he's not planning to step down because that would be a further step towards the politicization of the court, which does not need any more. And also, Alito is finally in a super solid conservative majority where his views mesh with the majority. He is, and he's getting good assignments. He's the third most senior conservative on the court, but the chief justice and Justice Thomas are both giving him really good assignments from his perspective. He got to write Dobbs. He gets to write other important opinions. Some justices have talked about retiring because they were only given mundane cases, but that's not his problem.

22:48If he did retire, that would give Trump yet another chance to appoint a Supreme Court justice. It would be his fourth Supreme Court appointee. I think that may be a record.

23:01David Super:His first three appointees, they're not cookie cutters. They are different in meaningful ways. And Justice Gorsuch and Kavanaugh on statutory cases very often disagree with one another. But I think if you look at the kinds of people he's put in his cabinet this time versus the first time around. All the people in his cabinet first time around were very conservative, but some of them are also very impressive. This cabinet is certainly conservative, but it's hard to say who is the most impressive member of his cabinet. There just aren't very many. And I'm afraid we will get a Supreme Court nominee who reminds us of Harold Carswell, who the Senate declined to confirm because he was too mediocre.

23:51I would love to hear that phrase, mediocre, as a reason given in some of the confirmation hearings for federal judges. We covered so many bases today, David. I always enjoy these conversations. Thanks so much. That's Professor David Super of Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.