There’s Been a Seismic Shift at the Supreme Court
The end of the Supreme Court term is already careening off the rails, with a backlog of major cases the justices are madly scrambling to finish before their self-imposed deadline at the end of June. The final weeks of the term have always been crazy, but thanks to a pileup of politically charged blockbusters, this year they’re poised to be absolute mayhem. On last week’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern spoke with Stephen Vladeck, a Georgetown Law professor and author of The Shadow Docket. Their conversation has been edited and condensed for clarity.
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Dahlia Lithwick: What makes this term different, Steve? And one thing, as you point out, is that we have a whole ton of merits decisions that are coming and they’re all going to be really important. A bunch are nationally significant. This is not like those terms where there’s four blockbusters in the last two weeks of June. This is an entirely different animal.
Steve Vladeck: It’s different in two ways that are going to sound like they’re inconsistent, although I think they’re coming from the same place. The first way is: The court’s actually doing less. We’re on track for maybe 58 or 59 merits decisions by the time we go home for the summer and go start crying again. Which will be the fifth term in a row that the court doesn’t get to 60 cases. And it hadn’t been below 60, before that, since 1864. And so there’s a whole universe of cases that has completely disappeared from the Supreme Court’s docket.
Yet a remarkably high percentage of what’s left are major cases. You’ve got these major administrative law cases, abortion cases, and social media cases. You’ve got two major gun cases. Oh, by the way, there are those two small Jan. 6 cases, including one about whether former President Trump can be criminally prosecuted. So depending on how you count, that’s about 20 major decisions that the court has to get through between now and the end of June. And they’re doing three or four a week right now.
We’re going to get slammed the last couple of weeks of June with major, controversial decisions. And that’s going to pose an especially difficult challenge to the Supreme Court press corps, who has to try to explain all of this to everybody in a way that’s going to keep their attention.
Mark Joseph Stern: I’m curious why you think this is happening—the slowdown of grants combined with the increase in really major grants. I am puzzled because I feel like different justices have different philosophies about grants; there’s not one unified theory for why this is happening.
Vladeck: So I think two things are going on, and I actually think they are related. First, I think the court is getting a lot of pressure from below, from my dear friends on the 5th Circuit. Some of this is because the 5th Circuit has just gone completely off the deep end on some of these cases, and the court has to reverse them. That’s the CFPB case. That’s almost certainly going to be the case with the mifepristone case, with Rahimi, a big gun case, and probably with NetChoice, the social media content-moderation case. So part of it is that the court has the sort of docket where its hand is being forced, and then part of that is the court taking cases it wants to take to mess with the administrative state.
What’s remarkable is that the justices are all talking about working harder than they ever have and saying that they’re all crazy busy. So it’s not like the shrinkage of the docket has freed up time. What they’re doing is investing their time in these high-profile cases that take more of their time, more of their energy, when they’re going back and forth about these concurrences and dissents. They have so many of these high-profile cases that they just don’t have room for the lower-profile stuff.
And the problem will continue into next term. We got to Memorial Day with eight cert grants for next year. That’s insane.
Lithwick: By Memorial Day, how many cert grants do we usually have, just for point of comparison?
Vladeck: More than 20! And the larger point is that whatever you think of what the court’s actually doing in these cases, this rather seismic shift in the nature of its docket is a big deal. It’s something we ought to be talking about. Maybe if there were a Congress, or, like, a Senate Judiciary Committee that actually cared about the Supreme Court, they might even think to hold hearings about these shifts in the docket.
Stern: Can I just add one gloss that I think is implicit in your critique, Steve? When they are slammed with all these super high-profile cases under a time limit, the work product suffers. And I think the best example of that so far is Trump v. Anderson, the Colorado ballot removal case. That came down in a month because the court actually can act quickly when it wants to, and they wanted to get it out before the Colorado primary.
But after we all read it a couple times, I think it became clear there was this misalignment between the majority and the concurrence. The concurrence was criticizing things that weren’t in the majority opinion. The majority opinion was saying things that didn’t reflect the concurrence’s critique. Then, as we at Slate discovered, the concurrence was in fact originally labeled a dissent before being changed at the last minute! It was all very hinky, and I feel like that’s going to be way worse in the next month as they’re trying to push out all these major cases. They’re going to get sloppy. And the result will be a mess in the law.
Vladeck: Two other things tend to be true when the court rushes: They tend to be more honest, because there’s less time to sanitize what they’re doing. And they tend to sound mad at each other. And I think this is the problem, because the court has this completely arbitrary obsession with clearing its decks before the summer recess—which, by the way, is just something they impose on themselves. There’s no statute or rule that requires them to do that. So we’re in for a shitstorm. And it’s not just because of what the court’s going to do in these cases, which is going to be really problematic politically, but just from a matter of the stability of law, it’s gonna be ugly.
Lithwick: You made the point, Steve, that July 1 has become the magic day for at least some justices to jet off to give partisan speeches on someone else’s dime. How that’s an unforced error and, if it wanted, the court could just decide cases through August. But there are so many other unknowable things, like how the court waits to tell us what the decision days will be, and doesn’t tell us in advance which opinions are coming down. So much of this performance of “We can’t tell you anything, so just come sit in the room and count boxes with us” is gratuitous and silly.
Vladeck: It’s like The Crown, right? It’s pomp and circumstance because that’s how it’s always been. It’s in those weird, mystical traditions that we believe there’s something higher than us and different than us.
Stern: And a lot of it, too, is an arrogant rejection of transparency at even the most basic levels. A refusal to tell the public what’s going to happen, so they can maintain maximal latitude for themselves behind the scenes. I think they fear that if they told the public which case is coming out tomorrow, and then there’s a sudden switch behind the scenes and it doesn’t come out, everyone would know that something happened; the public would know something about deliberations, and for some reason, that’s bad. This is a branch that is committed to operating in absolute secrecy.
Lithwick: Can I ask you both a final question? Because it’s the one that I now wake up asking myself pretty much every day. Say you’re John Roberts; you’re the institutionalist guy. You wanted to be John Marshall. You wanted to be remembered as having held this institution together and steered it through the rocky shoals. And now your people are crazy and it’s past the tipping point. So what in the world of conceivable interventions could John Roberts, the institutionalist, take?
Stern: I feel like John Roberts, the institutionalist, is missing in action and has been for some time. The chief’s questions from the bench in some of these high-profile cases have been really trollish and hacky. In the Fisher case about the Jan. 6 prosecutions, he sounded like Thomas and Alito. In the homelessness case, he sounded so horribly cruel and insensitive.
I worry that the “moderate” John Roberts who appeared intermittently from 2012 through maybe 2023 is gone. I feel like he’s just done trying to police his colleagues and he’s doing this YOLO court thing that we had previously assumed he was embarrassed by.
Vladeck: I have often found John Roberts to be an enigma, and that’s even more so the case this term. Part of me wants to reserve judgment a bit because I think we’re going to have a lot of big decisions where maybe he’ll restore some of our faith that he actually does care about the institution in ways that are divorced from his ideological goals.
Yet the Colorado ballot removal case is a huge problem, because those are the cases by which chief justices are measured, and there’s just no universe in which that’s anything but a failure on his part. He was unable to keep the court together. Justice Barrett had to write a separate opinion saying we could have done this on narrow terms, and you people didn’t.
I also think it’s not the Roberts Court anymore, and it hasn’t been since the day Justice Ginsburg died. And the reality is that, probably by this time in July, you’re going to see lots of pieces about how this is Amy Coney Barrett’s court—how Barrett’s going to be the real decisive vote in the cases that matter, because she picks up either Roberts or Kavanaugh.
I’ve said this before and I’ll say it again: If Roberts really believed that the institution were on the brink and that some grand gesture was needed, there’s exactly one thing he can do that none of the other justices can stop him from doing, and that’s resign. Resign in a Democratic presidency with a Democratic-controlled Senate and give the seat to a Democrat. And he’s never going to do that.
