The Shadow Knows

Today's Order Day, so let's deal with that before addressing the main topic. A few notable things.  Order lists often have some little gems that aren't too exciting on some level but are notable. Same here.  I again wish there was a FAQ on the SCOTUS webpage on orders, providing clarity.

First, any order list over around 10 or 15 pages is likely to have some separate writing. Same here.  A brief per curiam is included; turns out the solicitor general supported the result.  

Second, previewed in that infamous letter to the Senate Judiciary Committee, a justice (Kagan) suddenly flagged why she was recused from a case.  The letter noted such a thing "could" be done but suddenly NOW it is done.  Fine.  Good.  Don't let such long overdue baby steps stop ethics reform.  I fear for the future there but we shall see. 

We see various shadow docket stuff here including GVRs, procedural orders like redactions under seal, and many cert denials (including one involving a request for the record).  One thing denied is a stay request by a group called "Women of Color for Equal Justice," which turns out to be some conservative-leaning group that here was asking for a blockage of a vaccine mandate applied by NYC to city employees.  

We have the usual attorney disbarments too. I would love to have someone do an article that summarizes what these people did.  

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Joan Biskupic's new Supreme Court book is lacking in various respects. The book was well written and would be helpful to those who only had a passing knowledge of events. I realize many who know more praised it but it is hard to believe that even they do not deep down find reasons to be upset. 

I noted this already, adding that it did have some information that was news to me. More or less (nothing really new; new details). But, the book did not provide clarity on various things that would have been helpful in long-form work. Why buy a book that doesn't really add much to what was in her news coverage? And, it lacked important information, including about the death penalty.

Steve Vladeck's Shadow Docket book also covers familiar ground. I am not vain here. I know more about this stuff than the average person. I know about that Cambodian bombing story. I read multiple books on the death penalty, so know the deal there in the 1980 and beyond. And, I caught a few things. No, Mapp v. Ohio is not when the Fourth Amendment was applied to the states (the exclusionary rule was). And, I found a mistake in the index (Thurgood Marshall was cited when it was John Marshall, but I supposed that was separately generated).

Finally, when the attorney general statute speaks of a "meet person" (a what?), can we please have clarity -- multiple articles just cites the obsolete usage without comment. It seems to mean some form of "appropriate." ["When Congress created the position of attorney general in 1789, it called for "a meet person learned in the law" to argue cases before the Supreme Court and render legal opinions to the executive branch."]

But, the book is not about a few years alone. It covers a lot more ground and does so well. As usually is done in good books of this sort, it adds a few details that flesh things out a bit more. I am more satisfied with it though oh it's hard for me to read accounts of the Supreme Court covering the last few years. 

The death penalty chapter -- again how can Biskupic not cover that in detail? if she did it AT ALL, it was brief, since I did a careful skim of the book -- alone made me quite angry. The book at times tries to convince its campaign should be appreciated by both sides. But, the anger is rightly focused a lot more on one.

Any limited book is likely to lack a bit. For instance, the "shadow docket" in a broad sense means any unexplained order and decision of the Supreme Court. It always was in place, as was noted in passing, but we do not get any real discussion of the early years of the Court in that respect. 

For instance -- I recall reading a reference to this -- it notes in passing that for a time in the early 1800s, a justice assigned to a certain circuit made procedural decisions that applied to the whole Court for certain months of the year. The decisions apparently didn't amount to much -- I guess -- but that is a big "hmmm" to the eagle-eyed.

Overall, again, I recommend the book. I also recommend following Stephen Vladeck (and his wife for that matter) on Twitter. You will get a lot of good stuff, plus some cute bits about their two daughters. Also, the guy is not only a Mets fan [if now in Texas ... wonder how he feels about deGrom], he is one big dude. You will notice that at times in pictures. Finally, he has a distinctive voice and seems to have marbles in his mouth. Shades of Burt Neuborne.

Vladeck has testified to Congress and the Presidential Supreme Court Commission (cited in the book; will readers be surprised it existed since it is now basically forgotten?) about the shadow docket. He is now promoting this book all over, including on a book tour (he was down Manhattan recently) and doing a range of podcasts and other appearances.  

He already had an online and activist presence, particularly focused on national security matters and military commissions. He ends the book discussing possible reforms. He has written in one of his blogs that he is loathed to expand the Court. But, his book underlines the situation got worse under CERTAIN JUSTICES.

Jack Goldsmith wrote a piece on how Congress did not pass reforms to deal with executive excesses under Trump. This overlaps with my own anguish there. Emoluments? Ignored. 14A, sec. 3 clarification, including a process to make it easier to bring a claim and enforce it? 

No. Something to deal with continual abuse of resistance of subpoenas? And, more. Some of these things should have been possible. We are not talking about a major voting rights bill or abortion reform. Since the "Trump Effect" (see Joan Biskupic) applied to the shadow docket, this is all connected. 

It's a long haul.  We got through the Trump Administration, but the control of the Supreme Court is not promising to be a few years.  

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Talking long haul, we have many more opinions left (relatively speaking), starting on Thursday.  And, maybe some more orders. See you soon.