WEBVTT 00:00:00.000 --> 00:00:01.000 [MUSIC FADES IN] 00:00:01.000 --> 00:00:02.000 This is "In Conversation" from Apple News. I'm Shumita Basu. Today, the institutional crisis at the Supreme Court and what reform could look like. 00:00:02.000 --> 00:00:03.000 [MUSIC FADES OUT] 00:00:03.000 --> 00:00:04.000 [GENTLE MUSIC] 00:00:04.000 --> 00:00:05.000 We are taught that our government is based on a system of checks and balances. The executive branch, legislative and judicial branch, they're all supposed to be able to rein each other in. But with the Supreme Court's code of ethics under so much scrutiny lately, the question is, who is above the highest court in the land? 00:00:05.000 --> 00:00:06.000 Separation of powers is a two-way street, and I think this is where the conversation has gone off the rails. 00:00:06.000 --> 00:00:07.000 That's Stephen Vladeck, a law professor at the University of Texas and longtime Supreme Court watcher. 00:00:07.000 --> 00:00:08.000 There's no doubt that the Constitution intends for the federal judiciary to be independent, but there's also no doubt that independence does not mean unaccountable. 00:00:08.000 --> 00:00:09.000 The most recent calls for more accountability come after "ProPublica's" reporting earlier this year that revealed that, for more than two decades, Justice Clarence Thomas had accepted unreported gifts and luxury trips from a billionaire Republican donor. Justice Thomas has said he was advised he didn't need to disclose those trips because they were considered "personal hospitality." Justice Thomas has been criticized in the past for other possible ethics violations, including his wife Ginni Thomas' involvement in attempts to undermine the 2020 presidential election. 00:00:09.000 --> 00:00:10.000 He's not the only justice under the microscope. "POLITICO" recently found that Justice Neil Gorsuch didn't disclose selling property to a law firm CEO with multiple cases before the Court. 00:00:10.000 --> 00:00:11.000 Steve says, these latest revelations are part of a much larger departure from norms, a real breakdown in the way that the Court is supposed to function. He writes about this in his latest book, "The Shadow Docket$% How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic." 00:00:11.000 --> 00:00:12.000 I asked Steve to lay out what he sees as the biggest problems with the way the Supreme Court operates today, and how reforming it could lead to a better, stronger institution. 00:00:12.000 --> 00:00:13.000 [MUSIC FADES OUT] 00:00:13.000 --> 00:00:14.000 I mean, I think the biggest pressing ethical issue with the Supreme Court today is that there's no way to resolve any ethical issue with the Supreme Court today. So, when we see headlines about Justice Thomas or Justice Gorsuch or even Justice Sotomayor, who we've seen headlines about in the past, the basic reaction everyone has is to line up into their normal camps, either defending the justice's behavior or attacking the justice's behavior. And we really get no resolution other than the court of public opinion for the simple and ineluctable reason that the Court has no ombudsperson. It has no inspector general. It has no way of deciding whether particular behavior by particular justices does or does not comport with whatever rules the justices have decided to subject themselves to. 00:00:14.000 --> 00:00:15.000 Yeah. And when you say the rules they've "decided to subject themselves to," can you explain that a bit more? Like what are the ethical obligations that justices have? 00:00:15.000 --> 00:00:16.000 Sure. So, Supreme Court justices are bound, like any other federal judge, by an obscure federal statute that's known as 28 U.S.C. Section 455. But that statute's very narrow, and it's really only about the circumstances in which justices have to recuse from hearing a case, from participating in a case. 00:00:16.000 --> 00:00:17.000 Mm. Like a conflict of interest, right? 00:00:17.000 --> 00:00:18.000 Exactly. Conflicts of interest, either of a personal nature or financial nature. There's a broader series of ethical guidelines that bind lower federal court judges, so trial and intermediate appellate judges in the federal system, and that the justices say that they try to honor and comply with. There are financial disclosure requirements that the justices are at least theoretically bound to comply with. The problem is that unlike lower federal court judges, there's no enforcement mechanism when a Supreme Court justice fails to comply with the relevant standards. 00:00:18.000 --> 00:00:19.000 [SUSPENSEFUL MUSIC] 00:00:19.000 --> 00:00:20.000 A common argument against the Supreme Court having a similar mechanism of accountability as the lower courts is that it would raise separation of power issues. But Steve and others push back against that idea. He says, if anything, this is an example of why checks are necessary. 00:00:20.000 --> 00:00:21.000 [MUSIC FADES OUT] 00:00:21.000 --> 00:00:22.000 I think what's gotten lost in the contemporary discourse is how really, for the better part of the first 200 years, the Supreme Court was regularly accountable in lots of ways, big and small, to the political branches. There's an episode early in the Court's history where Congress actually stops the Court from even sitting for an entire year. There are cases that Congress stop the Supreme Court from deciding. There are moments where Congress messes with the pay scale for the justices and their pensions as a way of exacting leverage for what was perceived to be misbehavior by the Court. And I think part of why we are where we are today on everything from ethics and accountability to the Court's docket to what it's doing with regard to emergency applications, these all, to me, are symptoms of this broader disease, which is that that conversation has broken down and that Congress, for various reasons, has just stopped exerting any either informal or formal pressure over the Court as an institution, over the justices as individuals. 00:00:22.000 --> 00:00:23.000 Well, let's dig into some of those reasons. I mean, what do you perceive as some of the biggest changes that have led to this difference, as you've pointed out, over time? 00:00:23.000 --> 00:00:24.000 Yeah, I think it's no one thing. I think part of it is that there's the broader phenomenon that in Washington, the separation of parties has really overtaken the separation of powers. And so, we've seen similar drift when it comes to, for example, executive power. Where Congress has, for a generation, gotten out of the business of carefully restricting things like executive war power. And we've seen successive presidents from different parties claiming more and more power to act unilaterally. I think it's the same story. I think it's that dysfunction in Congress, which is a story unto itself, which has its own sort of roots and causes, has enabled the sort of accretion of power by the Supreme Court. In contrast to the historical model, which is that whoever was in charge of Congress, there was this mentality that checking the Court was something that Congress ought to do. When President Franklin Delano Roosevelt proposed his infamous court-packing plan in 1937, that would've added six seats to the Supreme Court, it was Democrats in Congress who were really the principal opponents, who were the ones who effectively torpedoed that proposal. It's impossible to imagine today that we'd see a similar situation where it was the party that also currently controlled the presidency pushing back against efforts to rein in the Court. 00:00:24.000 --> 00:00:25.000 I wanna bring us back into some of the recent news here and talk about some specific cases. Let's start with just Justice Clarence Thomas and the recent reporting from "ProPublica" about luxury travel that he accepted from a Republican donor without having disclosed it. Can you explain what the actual offense is here? 00:00:25.000 --> 00:00:26.000 Yes. So, just to take a step back. So, the justices, like all other federal judges and a wide range of other federal employees, are subject to mandatory financial disclosure requirements. Basically, the idea is that they've got to keep some kind of public record of their assets, of their large transactions. And this is basically an anti-corruption measure. The idea is that we should be able to know where the justices’ money is coming from, who is sort of funding things they're doing, so on and so forth. So much so that the justices actually have a practice of reporting pretty de minimis gifts that they receive from outside parties. What's tricky about the Thomas case is that much of what he received from Republican mega donor Harlan Crow was hospitality. And the regulations are a bit sort of… not ambiguous, but inartfully drafted about which kinds of hospitality have to be reported and which kinds don't. And so, I think this is why you've seen in the media people hair splitting about, "Well, the flights on the private plane are different from the stay at the fancy lodge." I think what really this gets to is that the problem here is not any one of these episodes. The problem here is the perception of influence. If we back up a second, Thomas has already admitted that he needs to retroactively amend his 2014 financial disclosure forms to reflect the sale of his mother's house to Harlan Crow. That, I think, is already a pretty significant concession that not all of this was above board. And then I think the question is, what else should happen? Like, what other mechanism should be in place if a justice is repeatedly refusing to comply with these rules? This is at least the third different time that Justice Thomas has now had to go back and retroactively amend prior financial disclosure forms. The first time, he said it was because he didn't understand how the forms worked and what he was required to disclose. 00:00:26.000 --> 00:00:27.000 Right. And I've heard some people be pretty generous with that. You know, financial disclosures can be tricky to interpret or whatever. 00:00:27.000 --> 00:00:28.000 Sure, and that makes sense the first time, and maybe it even makes sense the second time. But by the third time, you start to wonder if maybe that's not actually why these forms aren't being filled out correctly. And when the only consequence you face for failing to disclose these transactions, for filing this paperwork incorrectly, is to have to belatedly go back and amend the paperwork, maybe that invites if not bad faith, at least sloppiness and carelessness on the part of the justices. 00:00:28.000 --> 00:00:29.000 Yeah. Yeah. You know what I couldn't help thinking about with this "ProPublica" story as I was reading it, why did it take "ProPublica's" reporting to bring this to light? I mean, are we really relying on the press to dive into the financial disclosure documents? Why isn't there some other body doing this kind of oversight? 00:00:29.000 --> 00:00:30.000 It's the right question. And the answer is politics. So yes, I think one thing that hopefully we can all agree upon is that whether you love "ProPublica's" work, whether you are more cynical about the press, whatever your view is of the press, it's not a healthy system when the press is serving as the de facto inspector general of the judiciary. And so, this is why in the other branches of government, we have long since accepted the need for internal watchdogs. There are inspectors general across the executive branch. There are inspectors general in the legislative branch. And the idea in those contexts is that it is consistent with institutional independence to create meaningful mechanisms within the institutions to oversee compliance with the relevant rules. That's what's been missing forever when it comes to the federal courts. 00:00:30.000 --> 00:00:31.000 [INTRIGUING MUSIC] 00:00:31.000 --> 00:00:32.000 Steve's been thinking about ethics and oversight of the Court for a long time. And his recent book focuses on another way in which the Supreme Court has been able to operate in a uniquely quiet and unilateral way, the so-called "shadow docket." 00:00:32.000 --> 00:00:33.000 See, every term, the Court decides around 60 cases on what's known as the "merits docket." Those are the big cases you hear about, like Brown v. Board or Roe v. Wade. For the most part, these cases were first heard by lower courts, then appealed and sent up to the Supreme Court, where justices eventually handed down decisions. You get detailed explanations of their reasoning, and sometimes even dissenting opinions from justices who disagreed. 00:00:33.000 --> 00:00:34.000 Now, there's a totally different avenue for the Court to use "emergency orders" for issues that are deemed time sensitive. This is what some legal scholars, including Steve, call the "shadow docket." It lets justices make quick, sometimes expansive rulings on important issues, without all the explaining that happens with cases on the regular docket. Shadow docket decisions are often unsigned. 00:00:34.000 --> 00:00:35.000 And Steve says, if you look at the history, the Court started to shift in the way it was using the shadow docket around 2017. 00:00:35.000 --> 00:00:36.000 [MUSIC FADES OUT] 00:00:36.000 --> 00:00:37.000 What we've seen in the last couple years is that the Supreme Court has used these kinds of unsigned, unexplained orders, one, a lot more than ever before. Two, in ways that have had much broader impacts than ever before. Three, in ways that are actually inconsistent with any broader substantive principle and that actually instead tend to reflect more the partisan valence of the dispute. And then four, in ways that are actually, from the Court's own perspective, creating precedents that lower courts have been told they have to follow even when there's no explanation. 00:00:37.000 --> 00:00:38.000 So, can you give some examples of that? 00:00:38.000 --> 00:00:39.000 So, during the Trump administration, for example, there are a number of immigration policies, from asylum rules to the border wall, where lower courts strike down the policies. And while the appeals are making their way through the court system, the Trump administration persuades the Supreme Court, through unsigned, unexplained orders, to put those lower court rulings on hold so that the policies can be carried out. So, you have years and years of Trump administration immigration policies that are carried out, even though every court to ever rule on them says they're illegal. Right? Trump gets to build part of the border wall because of an unsigned, unexplained stay from the Supreme Court. In the COVID context, you have a number of COVID mitigation policies in blue states, New York, California, that the Supreme Court blocks at the very beginning of litigation, based on what were really some novel claims about how these COVID mitigation policies interfered with religious liberty. President Biden's vaccination or testing mandate for large businesses was blocked by the Supreme Court on the shadow docket. Unlawful congressional district maps in Alabama and Louisiana were allowed to be used in the 2022 midterms because of an unsigned, unexplained ruling from the Supreme Court on the shadow docket. Texas' controversial six-week abortion ban was allowed to go into effect 10 months before the Court overruled Roe v. Wade on the shadow docket. And so, there are just, you know, examples abound. But there are so many contexts, just in the last six years, where we've seen the Court issue these kinds of rulings with massive impacts on all of us in ways that we had never seen before, historically. 00:00:39.000 --> 00:00:40.000 So, as you're talking, I'm hearing you say two things, that not only is there this rise in the number of, as you're describing it, sort of decisions that we have less details about how the Court arrived at them, but that what they're arriving at is also breaking with precedent in ways that warrant explanation to the American people. 00:00:40.000 --> 00:00:41.000 That's exactly right. Both of those things are true, right. So, first it's the uptick in unsigned, unexplained decisions that are producing massive effects on the ground. And until 2017, those were incredibly rare. You'd see one of them maybe a decade as opposed to 10 or 15 of them a year. But then second, yes, I mean, in contexts that are crying out for justifications. Why are you putting Alabama's unlawful maps back into effect? Why are you allowing President Trump to do something that's clearly illegal? The Court, instead of providing a rationale, is telling us nothing. And that gives the impression that these are not legally based rulings, that they're simply policy-based rulings. If anything, it exacerbates the charge that the justices are acting as politicians in robes, especially when you get a similar case with a different partisan valence, the result is different. So, the Court repeatedly allows President Trump to carry out immigration policies that lower courts block with no explanation. Well, flip the tables. In 2021, the Court repeatedly doesn't allow President Biden to carry out his immigration policies that lower courts had previously blocked even when, as we saw in one case last year, the Court actually ends up siding with the Biden administration on the merits. 00:00:41.000 --> 00:00:42.000 Mm. Mm. So, you mentioned that 2017 was the year when you can see this really notable shift in the way that the Supreme Court was using the shadow docket. President Trump was in office for those years. Was that the change? Of course, as we know, President Trump appointed several new justices to the Supreme Court. 00:00:42.000 --> 00:00:43.000 That's right. So, I think it's an iterative change. I mean, I don't think there was ever a day where the justices sat down and said, "Let's start using the shadow docket." I think it was more, you know, each case breeds more familiarity and more repetition. But it starts in 2017 because of a concerted effort by the Trump administration to use the shadow docket. From 2001 to 2017, so during the George W. Bush and Obama administrations, the executive branch goes to the Supreme Court for emergency relief a total of eight times. So that's eight times in 16 years. And the Court grants four of those, it denies four of those. But it's like, it's an every-other-year kind of thing. Starting in 2017, the Trump administration goes to the Court early and often so that by the time President Trump leaves office, they've gone to the Court 41 times for emergency relief in just four years. And the Court grants at least some relief in 28 of those cases. So part of it, I think, is the uptick in requests. But of course, then there's the fact that the Court starts acquiescing in those requests. Coupled with first in 2018, the confirmation of Justice Kavanaugh to replace Justice Kennedy. I think that had a huge impact in these cases. And then even more so in 2020, when Justice Barrett is confirmed to replace Justice Ginsburg. And so, the wheels really come off in the fall of 2020, which is when we see the biggest uptick, even as President Trump is on his way out of office, in how often and how much the Court was intervening through unsigned, unexplained orders in federal policy cases, in COVID cases, in election cases. It really runs the gamut. 00:00:43.000 --> 00:00:44.000 Hmm. Now, there's been plenty of criticism of the Court's use of the shadow docket from you and others. And Justice Alito, at least, has addressed some of those criticisms, has spoken out in the past before, and really defended the need for what he refers to as the "emergency docket," and saying that it's necessary in certain cases, especially in time-sensitive matters. So, what do you make of his pushback and what other justices you might imagine would articulate about the need to operate in this way? 00:00:44.000 --> 00:00:45.000 Yeah, I mean, I think framed that way, of course Justice Alito's right. I mean, every appellate court ever conceived of is gonna need some mechanism to intervene when a lower court does something truly egregious. No one disputes that. The critique is the particular way that the Court has used it since 2017. A combination of how often the Court is intervening, including in contexts that no one would think is an emergency. The way the Court is intervening to basically upset the status quo when lower courts had all been on the same page, without providing any explanation. The fact that the Court's interventions, if you look at them as a whole, really seem wanting for a unifying, substantive legal principle and seem better described as simply vindicating Republican policy preferences. And the fact that the Court, including Alito, has treated some of these rulings, even the ones with no explanation, as precedents that bind lower courts. The problem isn't the shadow docket, the problem is how it's been used. 00:00:45.000 --> 00:00:46.000 [PENSIVE MUSIC] 00:00:46.000 --> 00:00:47.000 Steve referenced one recent shadow docket ruling that he says is actually a really good example of when emergency relief is warranted and appropriate. And that's the Court's recent ruling on the abortion pill mifepristone. 00:00:47.000 --> 00:00:48.000 In this case, Federal Judge Matthew Kacsmaryk issued a ruling to block the FDA's initial approval of mifepristone in 2000. His ruling was appealed, and the Biden administration went to the Supreme Court and requested a stay. 00:00:48.000 --> 00:00:49.000 The idea being like, "You are gonna decide this issue eventually. Until you do, you should preserve the status quo. You should leave mifepristone access where it was before Judge Kacsmaryk ruled." 00:00:49.000 --> 00:00:50.000 Two weeks after Kacsmaryk's original ruling, the Supreme Court sided with the Biden administration, maintaining access to mifepristone in the U.S. for the time being. 00:00:50.000 --> 00:00:51.000 Steve says if Kacsmaryk's ruling had not been blocked, it would have had significant impacts nationwide, and he says that's a key reason emergency intervention was needed here. 00:00:51.000 --> 00:00:52.000 The immediate effect of the ruling would be cataclysmic. It would be dramatic, it would be enormous. And the whole point of emergency relief is to prevent those kinds of effects from happening if there's any reasonable doubt that the ruling is correct. It's a great example, Shumita, of exactly what the shadow docket is for. Which is to preserve the status quo so that the Supreme Court can eventually do its job of resolving the case on the merits. That's in contrast to all of these rulings during the Trump administration and the early part of the Biden administration where the Court was using the shadow docket to disrupt the status quo without explaining why it was necessary or justified. 00:00:52.000 --> 00:00:53.000 There were two public dissents in the Supreme Court's shadow docket ruling on mifepristone. One by Justice Thomas, who did not provide an explanation for his dissent, and one by Justice Alito, who did. 00:00:53.000 --> 00:00:54.000 [MUSIC FADES OUT] 00:00:54.000 --> 00:00:55.000 Justice Alito dissented and wrote an opinion that was, I have to say, fairly remarkable. I mean, the first big argument he made in his dissent is that the rest of the Court was being hypocrites because they had previously criticized the conservative majority, including him, for prior interventions on the shadow docket. Now here they are intervening on the shadow docket. He says, you know, "I didn't agree with them then, but I'm gonna agree with them now." Apparently two wrongs make a right in that world. [CHUCKLES] 00:00:55.000 --> 00:00:56.000 Yeah. You know, I've seen you point out that sometimes in these shadow docket rulings, even though we are getting less explanation, we tend to learn more [CHUCKLES] about the dynamics between justices. 00:00:56.000 --> 00:00:57.000 Yeah, I am a huge nerd on this. I am all at the end of the spectrum insofar as how much I care about these rulings. But I do think that when the justices have less time, when they have less of their normal deliberative process, when they are writing faster and not necessarily to forge a consensus, their opinions might be, in some respect, more unintentionally honest. And I think that's relevant in two respects. First, it means you get things like Justice Alito's dissent in the mifepristone case, which I think actually is quite revealing of exactly what he misunderstands the critiques to be. But second, I think it also underscores the broader point, which is that this is an institution that is not set up well to work fast. And so, the better thing for the Court to do when faced with a true emergency is to find a way to sort of preserve the original status quo as much as possible and then otherwise sit back until the case works its way through the system, versus what has so much become the norm in recent years, which is the Court deciding massive and massively important questions at remarkably early stages of litigation, where maybe there are facts in dispute, where maybe the record is unclear, and yet where the justices are reaching out to decide issues with nationwide impact. 00:00:57.000 --> 00:00:58.000 [PLAYFUL MUSIC] 00:00:58.000 --> 00:00:59.000 [MUSIC FADES OUT] 00:00:59.000 --> 00:01:00.000 You know, I realize that it might sound silly or simplistic to even ask this, but I sometimes fear that this gets left out of conversations like this. Can you just articulate why public accountability on the Supreme Court is so important? 00:01:00.000 --> 00:01:01.000 So, the Supreme Court is a unique institution in our system. For every other institution, we have democratic accountability. If members of Congress misbehave, if the president doesn't do what we want him to do, we have remedies at the ballot box. The whole deal with the Supreme Court is that they're not politically accountable. And if they're not gonna be directly politically accountable, the question is, how do you create other mechanisms of accountability? This is where the Court itself has said, "Part of how we hold ourselves accountable is we tell you why we've done what we've done." So, it's been sort of a staple of the Supreme Court's own articulation of its legitimacy for generations. That the ability of the justices to provide principled justifications for their decision making is what separates them from politicians. And the idea, which may sound trite, but I actually think that's pretty deep, is that we're not necessarily supposed to agree with the justices' principles. We're just supposed to agree that there are principles. Because that's what gives us faith, that even if these aren't necessarily the justices we would've picked, that they're acting in a way that is judicial and judicious. And this is where I think the shadow docket is both its own problem and so consistent with the less substantive, but equally troubling, ethical and other sort of institutional concerns we've seen in recent years, which is when the justices aren't explaining themselves, there's nothing to push back against the charge that this is all just hyper-partisan. And that it's partisan, it's political. It's not even remotely consistent with what we would expect judges to do. And that doesn't mean that the justices are acting in bad faith. The problem is that even justices who are acting in good faith are depriving the institution of its best defense. Because even the best of motives, even the best of intentions can't disabuse the public of the notion that it's because the justices can't provide those explanations. 00:01:01.000 --> 00:01:02.000 So, I guess my question would be, why aren't we seeing Supreme Court justices wanting to show that they do have good intentions, coming out and saying exactly that? In this case, we should have reform. 00:01:02.000 --> 00:01:03.000 So, I mean, I think this is a… Being a Supreme Court justice - this is gonna sound really weird - is a very tricky job because you've got eight colleagues and no bosses, and your entire existence depends upon, not necessarily your ability to get along with your eight colleagues, but at least not necessarily alienating your eight colleagues. So, I think we are seeing an unusual amount of public criticism coming from the justices. Just to take two examples on the shadow docket side, we've now seen multiple justices led by Justice Elena Kagan publicly criticizing the conservative majority for abusing the shadow docket as such. That's unusual in the decorous hallways of the Supreme Court. And we're seeing public statements by some of the justices questioning some of this behavior. It's in code. But when Justice Elena Kagan goes to the Ninth Circuit Judicial Conference, as she did last year, and talks about the Court's legitimacy, that is pretty shocking from the perspective of how milquetoast those presentations have historically been. And so shocking indeed that it provoked pushback from both Justice Alito and Chief Justice Roberts. So, I think the problem is that we have come to think of the Court in political terms, and so we're surprised when the justices don't act like senators. But if you actually look at it in the context of the register by which the justices have historically operated, they're in the midst of a public conversation about the Court's legitimacy right now, the likes of which we haven't seen in a very, very long time. 00:01:03.000 --> 00:01:04.000 [CONTEMPLATIVE MUSIC] 00:01:04.000 --> 00:01:05.000 Steve says, all this public attention could be what it takes to push the Court to make reforms, and that we have already started to see some signs of this recently with the shadow docket. 00:01:05.000 --> 00:01:06.000 At least in the last year and a half, we've seen less of the, to me, bad behavior that had characterized 2017 to late 2021. I actually think there's pretty good evidence that Justices Barrett and Kavanaugh, who I think are clearly the most important votes in any of these divisive disputes, have moderated their behavior when it comes to emergency applications. 00:01:06.000 --> 00:01:07.000 But do you think it's that they've moderated their behavior, or as you pointed out earlier, just a difference in terms of executive requests coming from the Trump administration in those earlier years, 2017, or now under Biden? 00:01:07.000 --> 00:01:08.000 So, I mean, I think the requests are coming from different parties, but the cases are there. So in April, there was the mifepristone case. A couple weeks before that, there was a case where West Virginia asked the Court to put back into effect its ban on transgender women competing on varsity public school sports teams. The Court, I think, as recently as 2021, would've granted that request. Instead, here it denied it, again, over a fairly, I think, intemperate dissent from Justice Alito. So, it's true the Biden administration's not asking the Court for emergency relief as often, but conservatives are, and the justices are actually not acquiescing nearly as much. 00:01:08.000 --> 00:01:09.000 But regardless of whether the Court decides to make changes on its own, Steve also wants to see Congress take action. And he's got some suggestions. 00:01:09.000 --> 00:01:10.000 [MUSIC FADES OUT] 00:01:10.000 --> 00:01:11.000 The Supreme Court is actually hearing fewer overall cases on its merits docket right now than at any point since the Civil War. This term, it's gonna be below 60 decisions for the fourth straight term, when the last time it was below 60 was 1864. 00:01:11.000 --> 00:01:12.000 Hmm. Wow. 00:01:12.000 --> 00:01:13.000 Folks might say, "Well, why do you, a progressive, want the Supreme Court to decide more cases?" But that's exactly the institutional point, right? The Court is picking and choosing only the high-profile, partisan disputes that the justices want to get involved in. I want Congress to bring back some of the Court's mandatory jurisdiction. Cases the Court has to hear. Not as punishment, but as sort of a way of reminding the Court that it has institutional responsibilities. And so, I would start with reforming the Court's docket. I would start with something like the bill that has been introduced by Maine Senator Angus King and Alaska Senator Lisa Murkowski, which is, "Hey, Supreme Court. We're not gonna foist an inspector general on you, but you gotta come up with someone." Basically sort of, "We want you to create a mechanism within the judiciary, and then that person is gonna report to Congress." Codifying the very, very loose ethics norms that the justices just put their names on. Right? Like, those are places I would start. 00:01:13.000 --> 00:01:14.000 [TENSE MUSIC] 00:01:14.000 --> 00:01:15.000 There's also the question of how to codify the consequences for breaking the ethics rules. Because, as we all know, these are lifetime appointments. Justices can only be removed by impeachment. Only one justice has ever been impeached, back in the early 1800s. But even in that case, he didn't lose his seat. Steve says he's not necessarily advocating for judges to be impeached more often, but there needs to be some kind of agreed-upon system, how many strikes you can get before you're out. 00:01:15.000 --> 00:01:16.000 [MUSIC FADES OUT] 00:01:16.000 --> 00:01:17.000 So, the point is not that we should go directly to impeachment. The point is that the impeachment power is the nuclear weapon that Congress can and should use to justify increased accountability. You know, "Hey justices, we don't want to have to impeach any of you. The way you will avoid that is by giving us more regular, more consistent reports about your behavior so that we can make sure that you are all acting within what the Constitution calls 'good behavior.'" So, all of this to me, it all swims in the same direction, which is the goal is not necessarily to punish any of the justices. The goal is just to make the institution more accountable in the hope that a more accountable institution will necessarily behave in a way that's more responsible. And if it turns out that that hope is naive, right, if it turns out that the Court is abusing either its jurisdiction or its ethics, there are remedies. Congress has control over almost all of the Supreme Court's budget, right? Until 1935, the Court didn't even sit in its own building, it sat in the Capitol. So, there are levers Congress can pull. The key is convincing folks that those levers ought to be pulled, having nothing to do with the fact that the current Court has a conservative majority and everything to do with the fact that the Court, regardless of who the justices are, is acting in a way that is unhealthy, right, from an inner-branch dynamic. 00:01:17.000 --> 00:01:18.000 Yeah. You've said that the justices are paying attention to public opinion. How would you make the case to them that reforming their ethics code and reforming their code of conduct is something that they should act on? 00:01:18.000 --> 00:01:19.000 Yeah, I mean, I think the best case, and one that I think the justices would be the first nine people in the country to understand, is that this is an institution whose legitimacy is, for better or for worse, tied very directly to public faith in the notion that the Court is behaving responsibly. And so, the more the Court does to actually give the public faith, the more the Court does to show that it takes these charges seriously, the more the Court does to suggest that it wants to be responsible when it comes to compliance with the rules the justice have chosen to subject themselves to, the more that I think the case has been made that the justices deserve the benefit of the doubt versus the moment we're currently in where it is really hard, even for people who want to defend the Court as an institution, like me, to say with a straight face, "There's nothing to worry about here." And at the end of the day, I sort of come back to the old Russian proverb that was appropriated by President Reagan, "Trust but verify." And I think the justices want us to trust, but if they want us to trust, they should let us verify. 00:01:19.000 --> 00:01:20.000 [MUSIC FADES IN] 00:01:20.000 --> 00:01:21.000 Steve, thank you so much for your time. 00:01:21.000 --> 00:01:22.000 Thank you. 00:01:22.000 --> 00:01:23.000 You can find Stephen Vladeck's book, "The Shadow Docket," on Apple Books. We'll include a link for you on our show notes page. And if you're enjoying this show, "In Conversation," don't forget to subscribe, rate and review us on Apple Podcasts. 00:01:23.000 --> 00:01:24.000 [MUSIC FADES OUT]