美国国家公共电台 NPR--The Supreme Court and 'The Shadow Docket'

The Supreme¹ Court and 'The Shadow Docket'

Transcript²

The title sounds more like a thriller³ than a legal treatise⁴. The Shadow Docket: How the Supreme Court uses stealth rulings to amass⁵ power and undermine the republic" — and the author, University of Texas law professor Stephen Vladeck, admits the term "shadow docket" is evocative.

Vladeck's book, written so it can be understood by the interested non-lawyer, focuses on a part of the court's work that until six or seven years was mainly viewed as pretty boring. That, however is no longer true, and today the emergency docket has come to be known as the shadow docket, a term coined in 2015 by University of Chicago law professor William Baude.

Justice Samuel Alito hates the term, and gave an hour-long speech in 2021 at Notre Dame⁶, suggesting that journalists and politicians have seized on it to wrongly portray⁷ the court as "sneaky," "sinister," and "dangerous."

Nonetheless the term has stuck.

Professor Vladeck argues that the court has only itself to blame.

"What impelled⁸ me to write the book is that over the last six years, we've seen the shadow docket become a lot less boring because the Supreme Court, and especially the conservative majority, has been using unsigned and unexplained orders to a degree and in ways which really have no precedent⁹ in the court's history," he said in an interview with NPR.

What is the shadow docket?

The shadow, or emergency, docket, is the way many cases today, sometimes hugely consequential¹⁰ cases, are decided¹¹, without full briefing or oral argument, and without any written opinion.

These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months. Most recently, the Supreme Court issued an emergency order blocking lower court decrees that would have made it far more difficult to obtain mifepristone, the pill used in the majority of abortions¹³ in the United States today. As is typical in these shadow docket cases, the court issued no written opinion in the case, though Justice Alito, one of the two dissenters¹⁵, issued an angry explanation for his disagreement with the majority.

Up until relatively¹⁶ recently, these shadow docket actions were quite rare. The statistics tell the story, statistics compiled by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant¹⁷ in the Supreme Court, only asked the justices for emergency relief eight times--or on average once every two years. The two administrations together got what they wanted in only four of the eight cases, and in all but one of them the court spoke¹⁸ with one voice, and no dissent¹⁴.

But in the Trump¹⁹ administration, and with a newly energized²⁰ conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding²¹ 41 times, and the court actually granted all or part of those requests in 28 of the cases.

In short, not only did the Trump administration aggressively seek to use the emergency docket, often leapfrogging over appeals courts entirely²², but it succeeded with the tactic²³.

'The dirty secret'

Vladeck cites, for example, the challenge to President Trump's controversial diversion of military construction funds to build his border wall. A federal district court judge, after hearing the case, ruled that the diversion was unconstitutional, and barred the administration from using the money for a different use than Congress authorized²⁴. Within weeks the Trump administration went to the Supreme Court with an emergency appeal to block the lower court order, and the justices restored the money diversion by a 5-to-4 vote, with no written opinion for either the majority or dissent. As professor Vladeck explains, these emergency rulings are supposed to be temporary, to allow the cases to play out through the appeals process in the lower courts, and then possibly to return for full consideration by the Supreme Court later.

But "the dirty secret is that later never comes," he says. "By the time the border wall case," or "all kinds of other challenges to Trump policies make their way back to the Supreme Court, at the far end of the normal litigation process, President Biden is in office and those policies have been discontinued, and the cases are thrown out."

That pattern, he says, was repeated over and over again, thus allowing Trump "to carry out policies that lower courts had held to be unlawful because the Supreme Court, through unsigned and unexplained orders" said, in effect, 'Go ahead President Trump, we'll deal with this later.'"

Vladeck's point is not that the Supreme Court was necessarily wrong, but that its unexplained shadow docket rulings today are both "inscrutable, and inconsistent." The patterns that emerge, he maintains, put the court in an "exceptionally unflattering light."

"The more you look at the body of work, the more it looks like the best explanation for when the court is intervening and when it's not, is partisan²⁵ politics and not neutral substantive²⁶ legal principles," he contends.

No opinions to analyze²⁷

Vladeck points to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks²⁸" and urged people to "read the opinions." But as Vladeck observes,

"What's remarkable²⁹ about the shadow docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

Vladeck argues that historically, the way the Supreme Court has conceived of its own legitimacy³⁰ and its own moral authority is its ability to provide principled rationales for its decision-making.

"We may not agree with the specific principles the justices are articulating" in major abortion¹² or gun rights cases," he says, citing two examples. But at least we have some sense that these decisions are based on legal principles. In contrast, he argues, "The shadow docket has none of that."

Vladeck agrees there are times when the court quite legitimately³¹ must use the emergency docket to deal with emergency situations--the classic one being a last-minute appeal to stop an execution, or the series of cases involving the Trump travel ban, or the mifepristone cases. But he notes that even conservative Chief Justice John Roberts has sounded the alarm about such frequent use the shadow docket.

For instance, in an Alabama redistricting case where Roberts, no fan of the Voting Rights Act, might ultimately side with the state, he wrote that the lower court had properly ruled on the law as it exists today; he was thus unwilling³² to grant an emergency order overturning the unanimous lower court decision. He instead joined the Supreme Court's three liberals in dissent. In that sense, says Vladeck, Roberts is the "canary in the coal mine."

Vladeck points out that Congress is not without power when it comes to such matters. For the first 200 years of the Supreme Court's existence, Congress played an active role in the shape and size of the court's docket, including how the court would handle emergency cases.

"I think the story here is one where Congress progressively got out of the business of checking the court and the court progressively got out of the business of wanting to be checked," he says.

1 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

2 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

3 thriller   

n.惊险片，恐怖片

参考例句：

• He began by writing a thriller.That book sold a million copies.他是写惊险小说起家的。那本书卖了一百万册。
• I always take a thriller to read on the train.我乘火车时，总带一本惊险小说看。

4 treatise   

n.专著；(专题)论文

参考例句：

• The doctor wrote a treatise on alcoholism.那位医生写了一篇关于酗酒问题的论文。
• This is not a treatise on statistical theory.这不是一篇有关统计理论的论文。

5 amass   

vt.积累，积聚

参考例句：

• How had he amassed his fortune?他是如何积累财富的呢？
• The capitalists amass great wealth by exploiting workers.资本家剥削工人而积累了巨额财富。

6 dame   

n.女士

参考例句：

• The dame tell of her experience as a wife and mother.这位年长妇女讲了她作妻子和母亲的经验。
• If you stick around,you'll have to marry that dame.如果再逗留多一会，你就要跟那个夫人结婚。

7 portray   

v.描写，描述；画(人物、景象等)

参考例句：

• It is difficult to portray feelings in words.感情很难用言语来描写。
• Can you portray the best and worst aspects of this job?您能描述一下这份工作最好与最坏的方面吗？

8 impelled   

v.推动、推进或敦促某人做某事( impel的过去式和过去分词 )

参考例句：

• He felt impelled to investigate further. 他觉得有必要作进一步调查。
• I feel impelled to express grave doubts about the project. 我觉得不得不对这项计划深表怀疑。 来自《简明英汉词典》

9 precedent   

n.先例，前例；惯例；adj.在前的，在先的

参考例句：

• Is there a precedent for what you want me to do?你要我做的事有前例可援吗？
• This is a wonderful achievement without precedent in Chinese history.这是中国历史上亘古未有的奇绩。

10 consequential   

adj.作为结果的，间接的；重要的

参考例句：

• She was injured and suffered a consequential loss of earnings.她受了伤因而收入受损。
• This new transformation is at least as consequential as that one was.这一新的转变至少和那次一样重要。

11 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

12 abortion   

n.流产，堕胎

参考例句：

• She had an abortion at the women's health clinic.她在妇女保健医院做了流产手术。
• A number of considerations have led her to have a wilful abortion.多种考虑使她执意堕胎。

13 abortions   

n.小产( abortion的名词复数 )；小产胎儿；（计划）等中止或夭折；败育

参考例句：

• The Venerable Master: By not having abortions, by not killing living beings. 上人：不堕胎、不杀生。 来自互联网
• Conclusion Chromosome abnormality is one of the causes of spontaneous abortions. 结论：染色体异常是导致反复自然流产的原因之一。 来自互联网

14 dissent   

n./v.不同意，持异议

参考例句：

• It is too late now to make any dissent.现在提出异议太晚了。
• He felt her shoulders gave a wriggle of dissent.他感到她的肩膀因为不同意而动了一下。

15 dissenters   

n.持异议者，持不同意见者( dissenter的名词复数 )

参考例句：

• He attacked the indulgence shown to religious dissenters. 他抨击对宗教上持不同政见者表现出的宽容。 来自《简明英汉词典》
• (The dissenters would have allowed even more leeway to the Secretary.) （持异议者还会给行政长官留有更多的余地。） 来自英汉非文学 - 行政法

16 relatively   

adv.比较...地，相对地

参考例句：

• The rabbit is a relatively recent introduction in Australia.兔子是相对较新引入澳大利亚的物种。
• The operation was relatively painless.手术相对来说不痛。

17 litigant   

n.诉讼当事人；adj.进行诉讼的

参考例句：

• A litigant generally must make a motion in writing.诉讼当事人通常必须作出书面申请。
• In civil proceedings,the litigants shall have equal litigant rights.民事诉讼当事人有平等的诉讼权利。

18 spoke   

n.（车轮的）辐条；轮辐；破坏某人的计划；阻挠某人的行动 v.讲，谈（speak的过去式）；说；演说；从某种观点来说

参考例句：

• They sourced the spoke nuts from our company.他们的轮辐螺帽是从我们公司获得的。
• The spokes of a wheel are the bars that connect the outer ring to the centre.辐条是轮子上连接外圈与中心的条棒。

19 trump   

n.王牌，法宝；v.打出王牌，吹喇叭

参考例句：

• He was never able to trump up the courage to have a showdown.他始终鼓不起勇气摊牌。
• The coach saved his star player for a trump card.教练保留他的明星选手，作为他的王牌。

20 energized   

v.给予…精力，能量( energize的过去式和过去分词 )；使通电

参考例句：

• We are energized by love if we put our energy into loving. 如果我们付出能量去表现爱意，爱就会使我们充满活力。 来自辞典例句
• I am completely energized and feeling terrific. 我充满了活力，感觉非常好。 来自辞典例句

21 astounding   

adj.使人震惊的vt.使震惊，使大吃一惊astound的现在分词)

参考例句：

• There was an astounding 20% increase in sales. 销售量惊人地增加了20%。
• The Chairman's remarks were so astounding that the audience listened to him with bated breath. 主席说的话令人吃惊，所以听众都屏息听他说。 来自《简明英汉词典》

22 entirely   

ad.全部地，完整地；完全地，彻底地

参考例句：

• The fire was entirely caused by their neglect of duty. 那场火灾完全是由于他们失职而引起的。
• His life was entirely given up to the educational work. 他的一生统统献给了教育工作。

23 tactic   

n.战略，策略；adj.战术的，有策略的

参考例句：

• Reducing prices is a common sales tactic.降价是常用的销售策略。
• She had often used the tactic of threatening to resign.她惯用以辞职相威胁的手法。

24 authorized   

a.委任的，许可的

参考例句：

• An administrative order is valid if authorized by a statute.如果一个行政命令得到一个法规的认可那么这个命令就是有效的。

25 partisan   

adj.党派性的；游击队的；n.游击队员；党徒

参考例句：

• In their anger they forget all the partisan quarrels.愤怒之中，他们忘掉一切党派之争。
• The numerous newly created partisan detachments began working slowly towards that region.许多新建的游击队都开始慢慢地向那里移动。

26 substantive   

adj.表示实在的；本质的、实质性的；独立的；n.实词，实名词；独立存在的实体

参考例句：

• They plan to meet again in Rome very soon to begin substantive negotiations.他们计划不久在罗马再次会晤以开始实质性的谈判。
• A president needs substantive advice,but he also requires emotional succor. 一个总统需要实质性的建议，但也需要感情上的支持。

27 analyze   

vt.分析，解析 (=analyse)

参考例句：

• We should analyze the cause and effect of this event.我们应该分析这场事变的因果。
• The teacher tried to analyze the cause of our failure.老师设法分析我们失败的原因。

28 hacks   

黑客

参考例句：

• But there are hacks who take advantage of people like Teddy. 但有些无赖会占类似泰迪的人的便宜。 来自电影对白
• I want those two hacks back here, right now. 我要那两个雇工回到这儿，现在就回。 来自互联网

29 remarkable   

adj.显著的，异常的，非凡的，值得注意的

参考例句：

• She has made remarkable headway in her writing skills.她在写作技巧方面有了长足进步。
• These cars are remarkable for the quietness of their engines.这些汽车因发动机没有噪音而不同凡响。

30 legitimacy   

n.合法，正当

参考例句：

• The newspaper was directly challenging the government's legitimacy.报纸直接质疑政府的合法性。
• Managing from the top down,we operate with full legitimacy.我们进行由上而下的管理有充分的合法性。

31 legitimately   

ad.合法地；正当地，合理地

参考例句：

• The radio is legitimately owned by the company. 该电台为这家公司所合法拥有。
• She looked for nothing save what might come legitimately and without the appearance of special favour. 她要的并不是男人们的额外恩赐，而是合法正当地得到的工作。 来自英汉文学 - 嘉莉妹妹

32 unwilling   

adj.不情愿的

参考例句：

• The natives were unwilling to be bent by colonial power.土著居民不愿受殖民势力的摆布。
• His tightfisted employer was unwilling to give him a raise.他那吝啬的雇主不肯给他加薪。