This is [music] Bloomberg Law with June

Grasso from Bloomberg Radio.

There's been a lot of criticism from all

quarters, including Supreme Court

Justices, of the court's emergency

docket, often called the shadow docket

because of its lack of transparency.

Often the majority doesn't include their

reasoning when issuing these orders.

Well, now federal appeals court judges

are budding heads about the role of the

emergency docket and how much weight

lower courts should give those orders.

With one judge saying it forced lower

courts to divine binding doctrine, and

another lamenting his colleagues'

rhetorical assault on the high court. My

guest is constitutional law expert David

Super, a professor at Georgetown Law.

David, everyone knows that judges have

to follow Supreme Court precedent. Are

the court's decisions on the emergency

docket any different?

They can be different if they aren't

explained because the lower courts are

bound by the Supreme Court's holding,

but if it's only holding is that an

injunction in this case or that is

stayed and they don't give us any

reasoning, then the lower courts are not

bound by reasoning that they are

speculating. They're bound by what the

court tells us to decide cases. And

we've seen before and I think we talked

about pushback from lower court judges

complaining about the lack of guidance.

One judge wrote that recent emergency

docket rulings regarding grant

terminations have not been models of

clarity and have left many issues

unresolved. But now we have this

disagreement about the emergency docket

coming from appellate judges on the

fourth circuit. So this was in a case

related to Doe. Tell us what the

majority, the en banc majority decided

in that case. Yeah, the case was about

an injunction limiting Doe's access to

extremely sensitive social security

information on you and me and hundreds

of millions of other people. And the

Supreme Court had previously

held that an earlier lower court

injunction in that case could not be

enforced until appeals were fully

exhausted up to the Supreme Court. And

so what the majority in the fourth

circuit decided was that it was going to

send the case back down to the district

court. It was not going to purport to

reinstate an injunction because the

Supreme Court had pretty clearly said it

couldn't do that. That's the majority

and this prompted a rebuke from Judge

James Wynn, who was joined by four other

judges. And he argued that the his

colleagues were treating Supreme Court

emergency docket orders as precedent

they must follow. Quote, to treat

interim orders as binding precedent

abandons our long-held jurisprudence of

deciding constitutional law through

reasoned opinions. Is this just utter

defiance? It's absolutely not defiance.

It's actually very traditionalist and

the Supreme Court has lectured us often

on the importance of following the rules

that were in place when the Constitution

was adopted and this is, although it

doesn't call itself originalist, this is

originalist in that courts have two

entirely different functions that they

often perform in the same case. They

decide the rights of the parties before

them and they make precedent for the

future. Those are different functions.

And nobody, not the concurring justices,

not Justices Jackson and Sotomayor,

nobody questions that the Supreme Court

can decide the rights of the parties

before it on the shadow docket. The

question is whether when it issues an

order for the parties in front of it

without an opinion or without a

meaningful opinion, if that should be

also treated as precedent. And the

history is that courts issue opinions to

tell us why they're deciding things.

Often the parties are making half a

dozen different arguments and knowing

that that party won doesn't tell you

which of those six arguments was

persuasive with the court and if we just

guess as to why the court did what it

did, we'll often be creating law out of

thin air, playing ventriloquist, which

is not the lower court's job, is not any

of our jobs.

In a case where the Supreme Court

allowed President Trump to temporarily

remove three Democratic members of the

Consumer Product Safety Commission, the

court stated that while interim orders

are not conclusive as to the merits,

they inform how a court should exercise

its equitable discretion in like cases.

What does that mean?

Well, there's a lot to unpack there.

When they say it doesn't decide the

merits of that case, it means that the

parties' rights are not finally decided.

The parties can continue to litigate in

the lower court and come up to the

Supreme Court. So that part is well

understood. Then the question is what

kind of precedent is it? And the justice

there says that it informs what the

lower courts can do, but only in like

cases. When you don't have much of an

opinion from the Supreme Court, it's

very hard to know what like cases are.

And it can inform only to the extent

that it provides information. And if

they don't tell us what's important,

then it's very hard for lawyers or

judges or voters to know how they are to

change what they're doing. Also critical

here that the justice mentions equitable

discretion. Equity is not a system of

rigid rules. Equity is a system of

judges applying judgment. And that

judgment should be consistent with the

general principles of our system, but

it's never a rigid process. And so

asking lower court judges to act rigidly

in an equitable case is like asking for

a ocean without any water. It doesn't

work that way.

Speaking of water,

>> [laughter]

>> Judge J. Harvie Wilkinson III, who's a

Reagan appointee, said in his concurring

opinion that Judge Wynn's warning creeps

too near the water's edge of defiance

for my comfort. And he described it as a

rhetorical assault upon the Supreme

Court. Then Wynn came back in his

opinion and said if anything creeps

toward the water's edge, it's the notion

that lower courts must divine binding

doctrine from orders that say nothing of

the kind. It does seem to put lower

courts in a terrible position. Well, it

does and there are two distinct

criticisms of the shadow docket that

really need to be separated here. One is

about inputs and the other is about

outputs.

A lot of criticisms, which I share, that

they're taking too many cases and

they're not getting the benefit of lower

court decisions of a fully developed

record or oral arguments and that that

can lead to them making bad decisions,

decisions that are much worse than the

same court would have made if it had

proper inputs. But there's a second

distinct complaint about the outputs

that they don't give us much in the way

of opinions and that's what we're

arguing about here. I suspect Judge Wynn

would just as soon the Supreme Court

take fewer cases on the shadow docket. I

actually suspect Judge Wilkinson would

agree with that. But if they're going to

take the case and decide it and expect

it to be treated as precedent, they need

to write opinions telling us what the

precedent is, allowing us to figure out

what cases are governed by it and what

are not. And there's a very old

tradition of lower court judges

criticizing, often very directly,

Supreme Court decisions and complaining

that Supreme Court decisions don't give

them proper justification. There's a

very famous case by Judge Learned Hand,

one of the most respected district

judges of the 20th century, nobody's

liberal, complaining about a decision

that the Supreme Court did and basically

saying their rationale is so thin, I'm

not going to apply it as precedent

because I don't know how. And that's in

all the books. I teach it every year in

my course. That is certainly not a

disreputable opinion. And yet Justice

Neil Gorsuch scolded lower court judges

for not following Supreme Court rulings

saying, "Lower court judges may

sometimes disagree with this court's

decisions, but they are never free to

defy them."

But other justices are critical of the

shadow docket themselves. For example,

there was a recent appearance by liberal

Justice Ketanji Brown Jackson and

conservative Justice Brett Kavanaugh.

She said that the court's increasing

willingness to intervene before lower

courts fully resolve disputes creates a

warped system, but he said he didn't

relish the increase in emergency

petitions, but they're required to take

action one way or another when emergency

relief is sought. I mean, are they being

pushed into this, you know, by the Trump

administration's actions that are being

held back by lower courts?

Well, the Trump administration is a

revolutionary administration and you can

be happy or unhappy about that, but they

are trying to overturn the way things

have been done for many years, in some

cases for the whole history of the

Republic. And if you like it, you call

it draining the swamp, and if you don't

like it, you call it lawless, but

they're doing a lot of radical things.

It's no surprise that when you put

forward a radical program, you get sued

a lot. Franklin Roosevelt was sued a

great deal when he put forward a radical

program. Abraham Lincoln was sued a lot

when he put forward a radical program.

So, we shouldn't be surprised by that.

And saying that the Trump administration

is being burdened in a way that prior

administrations that followed our

political and governance customs were

not really isn't a very persuasive

argument. It is true the Supreme Court

is getting many, many more petitions

from the Trump administration than prior

administrations filed, but that really

is attributable to the court itself. It

grants a great many of them, which

causes more to be filed. I'm aware of

cases in prior administrations

where there was a strong desire to file

one, and the Solicitor General basically

said, "We don't get to do this very

often, and this isn't one of the few

cases I'm willing to do it on." There's

no one saying that in this

administration. They just file, file,

file. And actually, Justice Sotomayor

during an appearance last Thursday said

the court had itself to blame for the

flood of emergency appeals. And, you

know, she pointed to what you were just

saying. Stay with me, David. Coming up

next, we'll talk about the rumors that

Justice Alito is going to retire. You're

listening to Bloomberg.

>> [music]

>> Justice Sonia Sotomayor has been on the

road making public appearances speaking

about her latest children's book and her

experiences as a Supreme Court Justice.

Sotomayor took an unusually public and

pointed swipe at fellow Justice Brett

Kavanaugh while speaking at the

University of Kansas Law School.

It related to a September 8th emergency

order issued on the shadow docket where

the justices paused lower court rulings

that had temporarily barred immigration

agents from targeting people based

solely on their language, occupation,

race, or presence at locations such as

car washes or bus stops. In a

concurrence, Justice Brett Kavanaugh

said, "Legal residents promptly go free

after typically brief encounters with

authorities."

Well, without naming him, Sotomayor

said, "Quote, I had a colleague in that

case who wrote, you know, these are only

temporary stops.

This is from a man whose parents were

professionals and probably doesn't

really know any person who works by the

hour." I've been talking to

Constitutional Law Professor David Super

of Georgetown Law. David, Sotomayor has

vented her frustrations at public events

before, but this surprised me because

it seemed to be a personal attack on

Kavanaugh. And you don't usually see

justices criticizing each other in

public. They always claim that they get

along wonderfully.

You don't usually hear that, and I think

the reason you don't is because they're

afraid that it will interfere with their

ability to work with one another in the

future. But when justices believe that

there already is no ability to work

together, frustration can boil over.

There are not a lot of controversial

cases on which Justice Sotomayor and

Justice Kavanaugh have been on the same

side. And there have been quite a few

where it's been otherwise. But I think

that the point that she's making,

perhaps more bluntly than some would, is

an important point and about the shadow

docket. Justice Kavanaugh asserted as an

indisputable fact that US citizens and

legal permanent residents are

immediately let go. There's overwhelming

evidence that's not true. And if the

Supreme Court was taking cases properly

developed in the lower courts on the

facts, it would know that's not true.

And it could say, "We don't care." Or it

could say, "We will allow orders

designed to make that so." Or it could

say, "This means these stops are

inappropriate." But it wouldn't be able

to make absolute assertions of fact that

are simply false. And if you want to

decide cases on the law, maybe there's

an argument for an emergency docket,

although I don't agree with it. But if

you want to decide cases on the fact,

which he's doing there, then you have to

let the lower courts develop the facts.

By the way, those are now referred to as

Kavanaugh stops.

Two days later, Sotomayor said in

another appearance that she has civil

relationships with virtually all of her

fellow justices and that she regards

many as friends. I mean, what happens,

do you think, the next time they go into

conference, which is Friday? Is there

frostiness in the room, unease, or is it

just, you know, another conference? I

mean, these are professionals, and I'm

always a little skeptical about the

claims that these people are big friends

of one another. I know Justice Ginsburg

and Justice Scalia went to the opera

together, but I think that in many ways

these are nine independent offices, each

in the same building, that interact

mostly through paper and occasionally in

fairly formal ways like oral arguments

and conference. So, I'm not sure that

this changes a great deal. I don't see a

lot of outward evidence of much comedy.

The court is working very, very fast.

I'm sure it is jamming the the

descending justices to work to all hours

to get their dissents out rather than

holding up and giving them a little bit

of time, which has been done on very,

very big cases in the past. I I can

imagine she must be frustrated because

she's on the wrong end of the 6-3

decisions, you know, so often, the

liberals. And she was asked by a

University of Alabama law student about

how she's built bridges with the court's

conservative majority, and she said, "If

you mean bridges, convince them that

they're wrong, I dissent so much, I'm

not very successful."

Do you think the liberal justices have

sort of given up trying to convince

their conservative colleagues? No, I

don't. I think that all three of the

liberal justices are very capable, very

talented, and all three of them chose to

take appointments on the court at a time

when they knew they would be in the

minority. I see no evidence that they've

stopped working. And on cases where the

majority doesn't have strong views, and

some of these are very important cases,

you do see 7-2, 8-1, 9-0 decisions. And

so, the court is functioning, and the

liberals are functioning, and they have

credibility with at least many of the

conservatives. You know what I do miss?

I do miss the hot bench and also the

laughs when Justice Scalia and Justice

Breyer were on the court together and

trading comments at times. Now, the oral

arguments are mostly very somber.

Sometimes there's a laugh, but not

often. Unfortunately, that's true of our

political system more generally. You

think of funny senators, and most of

them are dead. And you think of funny

presidents, I don't think any of the

last several would count as funny. Our

last funny president, I think, was

Ronald Reagan.

Who since then, really? So, I think it's

not surprising that the Supreme Court's

reflecting us. In many ways, the Supreme

Court reflects the country and often in

ways that embarrass us, appropriately.

That's a great point. Finally, there's

speculation that Supreme Court Justice

Samuel Alito, who's 76 and has not

announced his retirement, but that he

might retire to give a Republican

president the chance to replace him. He

is the second oldest justice, but he's

years away from the age when other

justices retired. Justice Stephen Breyer

was 83, Justice Anthony Kennedy was 82,

and Justice John Paul Stevens was 90.

So, do you think this talk of Alito

retiring is just pure speculation?

You're in DC, tell us. And if there's

one thing we love, it's pure

speculation.

Um,

I mean, I don't know. Justice Alito is,

if anything, too young to be president

of the United States.

>> [laughter]

>> So, I don't know what he thinks he's

doing at at age 76. Um, maybe he's going

to go for an internship somewhere, but

it's hard to know. This is an amazing

job for most of them. Justice Souter

didn't care for it, but most of them

love it. And Justice Alito is still very

sharp. He's writing opinions that

reflect what he wants to do. So, it

would surprise me if he would walk away

from it. And I can also imagine that

some justices, certainly the Chief

Justice, urging him not to do that

because it would make it look like a

political move, like he's trying to give

a seat to President Trump to fill rather

than doing the job as long as he's

capable of doing it. So, I hope he's not

planning to step down because that would

be a further step towards the

politicization of the court, which does

not need any more. And also, Alito is

finally in a super solid conservative

majority where his views mesh with the

majority, you know. He is, and he's

getting good assignments. He's the third

most senior conservative on the court,

but the Chief Justice and Justice Thomas

are both giving him really good

assignments from his perspective. He got

to write Dobbs. He gets to write other

important opinions. Some justices have

talked about retiring because they were

only given mundane cases, but that's not

his problem. If he did retire, that

would give Trump yet another chance to

appoint a Supreme Court Justice. It

would be his fourth Supreme Court

appointee. I think that may be a record.

His first three appointees, they're not

cookie cutters. They are different in

meaningful ways, and Justice Gorsuch and

Kavanaugh on statutory cases very often

disagree with one another. But, I think

if you look at the kinds of people he's

put in his cabinet this time versus the

first time around, all the people in his

cabinet first time around were very

conservative, but some of them were also

very impressive. This cabinet is

certainly conservative, but it's hard to

say who is the most impressive member of

his cabinet. There just aren't very

many, and I'm afraid we will get a

Supreme Court nominee who reminds us of

Harold Carswell, who the Senate declined

to confirm because he was too mediocre.

I would love to hear that phrase

mediocre as a reason given in some of

the confirmation hearings for federal

judges. We covered so many bases today,

David. I always enjoy these

conversations.

Thanks so much. That's Professor David

Super of Georgetown Law.

And that's it for this edition of the

Bloomberg Law Show. Remember, you can

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>> [music]

>> I'm June Grasso, and you're listening to

Bloomberg.