Inside the Five Days That Remade the Supreme Court

**SPEAKER_1** (0:00)
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**Michael Barbaro** (0:32)
From The New York Times, I'm Michael Barbaro. This is The Daily.
For the past decade, the Supreme Court has relied on a rushed and secretive system to make major rulings on everything from immigration to presidential power. Now, for the first time, a Times investigation brings to light the precise moment when that system began. Today, Jodi Kantor and Adam Liptak take us inside the five days that we made the Supreme Court.
It's Monday, April 20th. Jodi, Adam, together at last in one episode of The Daily. Thank you for being here.

**Jodi Kantor** (1:43)
Great to be with you.

**Adam Liptak** (1:44)
It's good to be here, Michael.

**Michael Barbaro** (1:46)
So you two joined forces for an investigation that seems to begin with a genuine curiosity, which is what are the origins of the Supreme Court's shadow docket? So tell us why you were both drawn to answering that question.

**Jodi Kantor** (2:06)
It's a pretty common sense question, Michael, because if we look at the court's rulings, they are doing an enormous amount of work on the shadow docket. These are really important rulings that bypass a lot of the time tested steps of the court. So part of what we're asking here is, let's go back to the beginning. How did the court start doing this? Where does this come from?

**Michael Barbaro** (2:30)
Adam, I know we've talked on the show about the shadow docket quite a bit, but just remind us what it is and more importantly, how, as Jodi just said, it bypasses the time-tested steps of the Supreme Court.

**Adam Liptak** (2:45)
So a good way to think about this is to contrast it with the usual way the court handles cases.
Lawyers call this the court's merits docket, and this is what we're kind of used to.
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. And then they exchange drafts, five, 10, 15 drafts of opinions and concurrences and dissents. And after all this process winds itself out for like a year, they issue a reasoned decision, could be 100 pages long, with lots of concurrences and dissents, and it's the product of great care and deliberation. And these decisions, of course, are law that binds the nation, that gives guidance to lower courts, tells litigants how they have to act. That's the Supreme Court we're used to. 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. It gives rise to rulings with scant or no reasoning at all.

**Jodi Kantor** (4:06)
And 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.

**SPEAKER_6** (4:22)
Increasingly the court has turned to this Shadow Docket.

**SPEAKER_7** (4:26)
This is an exponential increase in the Supreme Court's use of the Shadow Docket, more than anything we have ever seen before.

**SPEAKER_3** (4:33)
They've used it 20 times so far this year, and the year's not even over yet at the court.

**Michael Barbaro** (4:38)
It's insane, the Shadow Docket.

**Jodi Kantor** (4:39)
And what critics have worried about is they've said...

**SPEAKER_6** (4:43)
The race to create a fait accompli is changing the speed and rhythm of all of these cases.

**Jodi Kantor** (4:50)
Why is the Supreme Court not moving at its usual careful, deliberate pace?

**SPEAKER_8** (4:55)
There's no problem in the abstract with the idea that the Supreme Court gets emergencies. The problem we've seen in the last five or six years is the way the justices are intervening.

**Jodi Kantor** (5:03)
And also...

**SPEAKER_9** (5:04)
You get this kind of back-of-the-envelope reasoning from the justices to three sentences.

**SPEAKER_10** (5:09)
Those decisions are not reasoned decisions. They don't tell us why. I mean, five paragraphs doesn't tell us why.

**Jodi Kantor** (5:15)
Why is the Supreme Court not providing any reasoning for such major decisions?