SCOTT SIMON, HOST:
The Supreme Court's formal announcement of opinions may be over for the summer, but the justices are still continuing to work. Just this week they handed down two orders on the emergency docket - also known as the shadow docket - which allows them to dispense with cases quickly, without explanation. And that lack of explanation has struck the court's liberals - and lots of others - as perhaps the wrong way to make decisions that can have long-lasting implications. In a speech this week to federal judges and lawyers in California, Justice Elena Kagan, one of the court's liberals, said the court has a, quote, "real responsibility to explain things better."
We're joined now by NPR legal affairs correspondent Nina Totenberg. Nina, thanks so much for being with us.
NINA TOTENBERG, BYLINE: It's my pleasure.
SIMON: Tell us - in this century, what has the shadow docket mostly been used for?
TOTENBERG: Look, there are always real emergencies that have to be dealt with, whether it's the traditional 11th-hour death penalty appeal or a question involving even a granular election challenge, like what's the cutoff date for receiving a mailed ballot? Today, the death penalty appeals are still there - lots of them. But they almost always fail. Trump's emergency appeals, however, almost always win without the court having full briefing or arguments, without any opinion fully explaining the court's reasoning - often without any explanation whatsoever and almost always without any way to definitively know how each justice voted.
The bottom line here is it's not legal mumbo jumbo. It's policy. When challengers sued the Biden administration over some of its COVID policies or over its student loan program, the Supreme Court had full briefing and argument on those cases and then ruled for Biden in some, but not all, of the COVID cases and ruled against his student loan program. But in the Trump cases - and remember that now, in the first six months of this Trump administration, there have been 171 executive orders issued by the president, and in one form or another, most are being challenged in court. And every time he loses at a preliminary stage in the lower courts, he appeals to the Supreme Court to block those lower-court decisions, which means, at least so far, that the Trump policies prevail. The only major exception was when the administration tried to deport a bunch of immigrants in the dead of night after the court had explicitly ruled that these folks are entitled to some basic due process that they had not been accorded.
SIMON: How frequently has the shadow docket been used recently compared to past years?
TOTENBERG: Well, up until relatively recently, these shadow docket actions were very rare. The statistics tell the story - statistics compiled by Steve Vladeck of Georgetown University Law Center. During the 16 years of the George W. Bush and Obama administrations, the federal government - which is the most frequent litigant in the Supreme Court - the federal government only asked the justices for emergency relief eight times or, on average, once every two years. The two administrations together got what they wanted only four of the eight times, and in all but one of them, the court spoke with one voice and no dissent. But in the first Trump administration, with a newly energized conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding 41 times, and the court actually granted all or part of those requests in 28 cases.
In short, not only did the Trump administration aggressively seek to use the emergency docket, often leapfrogging over appeals courts entirely, but it succeeded with that tactic. So when it came to the second Trump term this year - surprise, surprise - there was a return to the same tactic. Again, the numbers tell the tale. To date, there have been 20 cases in which the administration asked to block the lower courts. It's prevailed in 18 of those. These are consequential cases involving the administration's efforts to lay off federal workers, shutter federal agencies, deport people before, in many cases, their lawyers can even find out where they are.
SIMON: Nina, if I might put it this way, is this any way to run a railroad?
TOTENBERG: I'm not a genie who knows the answers to this question, but the court's critics, including often its own members, have repeatedly called out the practice of essentially leaving in place big, new policies without explaining its reasoning. The dirty little secret here is that if you've got the votes, you've got the votes. And if the justices actually wrote the whys and wherefores, the likelihood is that they wouldn't agree. Writing an opinion for nine justices, or even six, or even five, can be very hard. And to put it bluntly, they think they don't have the time and they don't have the inclination.
SIMON: NPR's Nina Totenberg, thanks for finding the time with us.
TOTENBERG: (Laughter) My pleasure. Transcript provided by NPR, Copyright NPR.
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