The Shadow Docket

One of the few perks I have here at Emptywheel is being able to say what I think. I think you should go buy and read The Shadow Docket by Steve Vladeck.

Mr. Vladeck has been intoning this for a long time. Here he was back in November 2019:

“But insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view,’”20 and for good reason. By waiting for most cases to go through multiple layers of review by lower courts (and, often, multiple cases going through those multiple layers), the Court gives itself the benefit of multiple rounds of briefing and argument — and, usually, lower court rulings — on which to base decisions to grant certiorari and, if necessary, analysis of the merits. To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity — and to necessarily tilt the Court’s limited resources toward an undoubtedly important, but importantly narrow, class of disputes. Worse still, such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.”

True then, and increasingly so now. In the age of the internet, books are given short shrift. But they are still vital and important. Sales of books, especially early, are vitally important. This is a book that is important, and quite affordable. If you can, please go give Steve a bit of support, he is a pretty decent chap and, hopefully, a friend.

43 replies
  1. drhester says:

    Does he say in the book, what we can do to bring it back into the light? Here’s the blurb I read on the link:

    ” The Court’s conservative majority has used the shadow docket to green-light restrictive voting laws and bans on abortion, and to curtail immigration and COVID vaccine mandates. But Americans of all political stripes should be worried about what the shadow docket portends for the rule of law, argues Supreme Court expert Stephen Vladeck. In this rigorous yet accessible book, he issues an urgent call to bring the Court back into the light. “

  2. rosalind says:

    thanks, bmaz. the book will be published May 16, 2023, available now to pre-order at your fav local indie.

    • posaune says:

      I’ve been following Steve. If you pre-order, it includes a signed bookplate. Last week, his 6-yo daughter offered to help him sign the bookplates. She did a great job — except that hers read, “Maddie.” I want one of the Maddie ones!

  3. Ed Walker says:

    The resentful bile-ridden Alito should be forced to read this book out loud after his disgraceful dissent in the mifepristone case. Here’s a link:

    It’s easy to follow, as the miserable cur wallows in self-pity, whines about people who disagree with his ideologically-driven rulings, makes up crap, and then says that the government didn’t prove it would comply with his religious views thinly cloaked in legal terms his clerks cobbled together that sound to a MAGAt like legal stuff.

    It’s true that he and the other rogue Fox News blackrobes were called out for their shadow docket rulings, he quotes them. But this ruling is consistent with their position: don’t make massive changes on a motion docket where you don’t have to explain your decision. In each of those cases the right-wing hacks changed the law without following standard procedure.

    Also, Alito is a resentful spiteful woman-hating angry little man.

      • ernesto1581 says:

        alito’s nose has been out of joint since the ‘sixties. when all his princeton buddies were out in the streets of DC with the rest of us, trying to shut down the war, alito was sitting home with his parents in front of the tv watching larence welk and sipping a rob roy. really pissed him off.
        also the thing about girls wearing pants. good god almighty..!

      • Rugger_9 says:

        Unfortunately, the ‘good behavior’ clause precludes Alito’s removal for what might just be a case of creeping dementia, instead we’re needing to follow what the Constitution calls for: impeachment and removal. Likewise, in the case of Thomas, but at least in that case there are federal laws passed in proper order to try the ‘good behavior’ route but Durbin’s already closed off the option. While DiFi is out and McConnell is uncooperative, Senate options are limited.

        FWIW, there is zero chance that the House GOP votes to impeach either one regardless of the evidence because that would mean flipping SCOTUS back to sanity. Likewise, no chance enough Senate GOPs vote to convict either. Let’s also remember that just about every GOP-nominated Justice also fibbed (at least) in their confirmation hearings which is also a crime.

        OTOH, Gym Jordan would doubtless hang a ‘crime’ on every D nominee, look what they did to Justice Jackson. This might be a case where the GOP should be given the rope to open the precedent before putting the hammer down. Jordan, et al will do it because they need to pretend to be relevant and that is requiring more outrageous conduct over time.

    • Ginevra diBenci says:

      Thank you, Ed. Especially for the woman-hating part. I’ve been wanting to include that in my comments about Alito but chose not to for fear of coming across as hysterical.

      Yeah. I know. But this is exactly the box women of my generation feel like we’ve been shoved back into by the virulent (and increasingly empowered) misogynist backlash of the past decade-plus. We overcame our childhood conditioning only to hit this new cultural wall.

      I’m praying for E. Jean Carroll to get justice. I’m sorry to say that if she does, it will indeed have symbolic value.

      • bmaz says:

        Never rely on civil court trials as your vehicle of personal “justice”. That will never work well for you or anybody else.

        • Ginevra diBenci says:

          Yes, I know, bmaz. That’s why I was sorry to say it–that I’ve been ground down by Dobbs, etc., to looking for payback in a place I recognize is irrational.

    • NerdyCanuck says:

      I wasn’t able to see the decision in your NY Times link due to the paywall, so I decided to go to the supreme court website to try and find it myself… and yeahhhhh it sure seems like the “shadow” part of the docket’s name is very apt! I had a heck of a time, and in the end all I could find were two single page Orders extending the stays (one each in Danco Laboratories LLC vs. Alliance for Hippocratic Medicine, et al and Food and Drug Administration, et al vs. Alliance for Hippocratic Medicine, et al) from April 14 to April 21, 2023.

      And granted, IANAL and I’m also canadian (so perhaps I’m naive about US government websites?) but still, I REALLY didn’t expect it to be so difficult to find!!

      In the end I got a direct PDF link of the decision from a news article, to share here with anyone else who wanted to read it directly!!

      Edited to add: I also will for sure check out Mr. Vladeck’s book!

      • LargeMoose says:

        Slightly OT, but maybe helpful. Most Paywalls can be circumvented if necessary. Browser plugins such as Noscript, and uMatrix, and some experimentation, can surmount many of them. Also, F-Droid’s DNS66 for Android phones, which can make Youtube material available without obtrusive adverts. Yeah, the ethical considerations and implications can be tricky, but I think of some usage as equivalent to reading the papers in the public library, even though it isn’t exactly the same. I hate to see corporations with so much control over information that benefits the public.

    • whocansay says:

      It’s undeniably ideological, and “religious”.

      I read this spot on article last year:

      “Well intentioned” Catholic “pro life” movement hijacked by RWNJs.

      “Pro life” was a big thing in 1973, but it seemed vague to me, a high school freshman in Catholic schools. I don’t think people were screaming at abortion clinic clients then.

      I don’t recall if they actually thought they could stop abortions, or how. Jail abortion seekers/ providers? Not apparent as these recent abuses of courts/ law.

      From the article:

      “Early activists wanted to create a comprehensive “culture of life,””.

      Catholics had some modesty and SJ cred back then.

      That was my impression then. But now, apparently a fetus is a full human, while children who are actually born into a poor family are blithely denied school lunches and medical care.

      Rootless, lost “good intentions” hijacked into RWNJ ideology.

      Abortion is as old as civilization, I really have trouble getting where we are now.

      Sorry if OT, but law is not Alito’s agenda.

  4. darms says:

    (Obviously IANAL) Speaking of the ‘Shadow Docket’, Friday PM’s Shadow Docket mifepristone decision staying Kacsmaryk’s earlier ruling totally (conveniently?) ignores the question of standing:

    …The plaintiffs are a group of anti-abortion doctors who do not prescribe the medication. To establish standing, they claimed they might one day treat a patient injured by mifepristone, a totally conjectural future “injury” that may well never happen. To claim that the medication is dangerous, they rejected more than 100 scientific studies proving it’s safe and effective, and instead cited anonymous blog posts from an anti-abortion website. …

    Same old IOKIYAR?

    • Rugger_9 says:

      IIRC this was a narrow question about whether Kas could overrule FDA on drug approval matters until the case merits are discussed. IANAL, so I don’t know where the standing question is covered but as noted in many places, there is no tort or standing for the plaintiffs which means Kas needed to toss it out.

      However, even though the RWNM likes to scream about ‘activist judges’ we actually have another example of the ‘accusation is an admission’ rule that should be used to translate RWNM outrage or ‘conservative’ actions.

  5. e.a. foster says:

    sounds like the book covers some very scary things. might be a good book to read. at least you will know what is heading your way before its too late. thanks for the information.

  6. Yogarhythms says:

    Ordered the book. Thank you for this post recommendation and legal experience shared so freely.

  7. rosalind says:

    always good to check in with your local library to see if they plan on carrying it. just checked with mine, and they have one copy on order so far.

    • Tracy Lynn says:

      I always check in with my local library — it’s the best. If the book isn’t there, I usually request it– but if the library refuses to buy it, I go to my local independent bookstore. Gotta keep the locals in business!

  8. chrisanthemama says:

    Mine, too, and I’m #4 in line on one copy. Got more books already than I have room for, and so I’m always happy to vote yes on library bond issues (enlightened self-interest).

    • -mamake- says:

      Me too…just requested it at my local library, I’m #5 on the wait list!

      FWIW, I often opt for the library so my kids don’t find me under a pile of collapsed bookshelves one day. But also to register interest in books like these – for example, Lady Justice by Dahlia Lithwick.

      When I’ve read enough of the book to know I want to read all of it, I return it then add it to my paperback purchase list (my preference for reading). If I’m really organized, once I finish it I donate the pprbk to the library – full circle.

      Thanks for the recommendation Bmaz. I like Steve V and am glad to know about this book.

      • Ginevra diBenci says:

        We long ago found ourselves under a pile of books here. Lady Justice is great! Dahlia Lithwick always does fantastic work.

        Everything by Vladeck that I’ve read has been excellent too.

  9. hollywood says:

    If you find the book on Amazon, you can read a sizeable chunk of the book’s introduction. It’s both intriguing and well written.

  10. Dryly 41 says:

    Can anyone discern the difference between a highly, highly, highly partisan right wing racist REpubllican Crackpot politician masquerading as a judge on the supreme court and a real judge???

  11. Bobby Gladd says:

    I just finished reading the entirety of the Amazon “look inside“ preview. It is fairly generous in length, and it is compelling. There is no “download sample“ for this book, you have to read it via the Amazon preview, which is a bit clunky. But, it is totally worth your time, even if depressingly so.

    • Rayne says:

      LOL you and Overshire are on it today!

      Wonder if Carlson is going to start a Substack now, complete with embedded video. What are the odds?

      ADDER: I see Seashell beat you two by 3 minutes, must have published just before I hit refresh. Says something that this many community members are on this along with Marcy who has a new short post about Carlson’s exit.

  12. jaango1 says:

    Now that I am up on my swimming pool dive board, and hoping that there is still water at the bottom of my pool. let me confound you a tad.

    When I weigh into the arena of politics, my future is being jeopardized by the Conservative, past and present. This author is understandably correct but only to a point, or perhaps, he is somewhat “wrong” when it comes to the humorous of today’s “conservative” expectations when we consider the anathema of “Three Strikes And You’re Out!”

    In a few years, our political discourse will be in the attention to the Racial and Ethnics. Our white-oriented Democracy will have to confront our “racial and ethnic” Democracy, and how this comes about, and where the Third Branch or Judiciary, becomes an after-effect/affect.

    Take for example, if you will, the Federalist Society has its “book” of 30 chapters in which their intent to address, in an wholesale and whole-heartedly manner, confront the incoming “Racial and Ethnic” Democracy of tomorrow.

    In closing and If I am reasonably correct, our National Security and Defense will actively address the presupposed “conservative” mantra that fails to address the notion for “unassailable facts circumscribe common sense.

    Now, do I put my shot of tequila down on this platform and hike up my trunks a tad?

  13. jaango1 says:

    In my post above, I used a little NSA code talk to focus the importance that a progressive-orientation brings to our three branch government democracy. Take, for example, votes do truly count at the end of the political day. Subsequently, Arizona’s next senator contest will include a Chicano Democrat currently located in the House Chamber. Gallego is a former Marine and will be facing a Republican candidate, a County Sheriff and the current Senator, and whom announced that she is now an “independent.”

    Therefore, should Gallego become Arizona’s next Senator, his is also a very welcoming “progressive” and whom has the smarts to craft a “single-member” oriented Progressive Caucus in the Senate Chamber. And if so, he will become the consequential decision-maker regarding the political agenda that matches the goal of a sizable capacity for fundraising the equivalent monies to move a progressive-oriented agenda. And thusly, Gallego will driving both Fox News and the Wall Street Journal bonkers.

    For those among us and whom are diligent or disreputable historians of any type, the Chicano Movement of the 60s and 70s, the leadership helm was led by the former military vets. Thus a second-helping of Movement politics is being addressed and delivered once President Biden is re-elected.

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