Inside the Five Days That Remade the Supreme Court

Key Takeaways

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  Shadow docket skips traditional judicial review steps

  “The justices spend a lot of time considering which cases to go into here, and they get briefs on that. And if they decide to hear a case, they get another round of briefs, and supporting briefs, and then they hear arguments, and then they sit together and discuss and vote. The Shadow Docket short circuits all of that. It happens in a very brief period of time on thin briefs, no arguments, no in-person deliberations.”

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  Emergency rulings have increased exponentially recently

  “Over the past ten years, this has really become a major part of the court's business, including in some decisions over the past year or so that have awarded President Trump enormous leeway and power. Increasingly the court has turned to this Shadow Docket. This is an exponential increase in the Supreme Court's use of the Shadow Docket, more than anything we have ever seen before.”

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  Temporary orders often become final policy outcomes

  “They're nominally temporary, but as a practical matter, very often, they're not only consequential, but conclusive, finally resolving the matter, because if the court says you can deport someone, or you can deport hundreds of thousands of people, or you can withhold aid money, or you can fire thousands of people. Those are very hard to undo. You can say it's temporary, but it's very hard to undo those rulings.”

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  Leaked documents reveal the system's 2016 origins

  “The New York Times has obtained and has published 16 pages of confidential correspondence among the justices, meaning their private back and forth, that reveal the origins of the Shadow Docket. Through these papers, we can eavesdrop on the justices at the exact moment that they are abandoning time-tested norms of judicial procedure and backing themselves into a new way of doing business.”

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  Roberts initiated the court's shift toward secrecy

  “It arrives in the chambers of Chief Justice John Roberts. He's the justice who oversees the DC Circuit. So, these things go to him in the first instance. And in the ordinary course, what the lawyers involved in the case expected would happen was that he would simply deny it, deny the application. But what he does instead is he starts writing a memo telling the other justices that they should take this very seriously.”

Episode Description

For the past decade, the Supreme Court has relied on a rushed and secretive system to make major rulings on issues from immigration to the presidential power. Now, a New York Times investigation brings to light the precise moment when that system began. Jodi Kantor and Adam Liptak, who reported the story, take us inside the five days that remade the Supreme Court. Guest: Jodi Kantor, a New York Times reporter whose job is to carefully uncover secrets and illuminate how power operates. Adam Liptak, the chief legal affairs correspondent of The New York Times and the host of The Docket, a newsletter on legal developments. Background reading:  The full investigation of the “shadow docket.” Takeaways from the Supreme Court’s secret track. Photo: Tierney L. Cross/The New York Times For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.  Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.