The problems of the shadow docket and the need for Supreme Court reform

This is an extended version of my review of Stephen Vladeck's "The Shadow Docket."

The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic by Stephen Vladeck
My rating: 5 of 5 stars

Vladeck gets five stars but in my quarter-star system, he's not quite there. See below. (Note: I liked Goodreads platform updates of a year ago as far as they went. I decry it not following Storygraph and giving us quarter-star, or even half-star, review rating tweaks. As clunky as the website is, I still think they could have done it.)

Having read essays and journalism pieces by Vladeck already (bits of some incorporated into this book) I figured it would be good and wasn't disappointed. The "Conclusion" chapter makes clear what's wrong today. In a nice bit of petard hoisting, near the end of the last pre-Conclusion chapter, Vladeck uses as a starting point a quote from the plurality controlling opinion of three justices in the Casey case:

The Court cannot ... independently coerce obedience to its decrees. ... (The Court's power) lies in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means. ... The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as truly ground in principle, not as compromises with social and political pressures.

And yet, this illustrates why the book is 4.5-4.75 stars and not quite a 5 star 5 star.

Vladeck COULD have mentioned the timing of Kennedy's resignation, his son work for Trump lender of mega-resort as well as last resort Deutsche Bank as Trump's banker and other things. He nowhere references the book Dark Towers, which covers a lot of this.

Elsewhere in the penultimate chapter, Vladeck rightly faults Biden's commission on judicial reforms for "milquetoast" recommendations and for being used by Biden for taking a 2020 election year pass. But, he doesn't plump too much for specific recommendations himself.

Personally? Per one thing I learned early on in the book, that the American Bar Association proposed an alternative at the time to what emerged as the 1925 Judges' Bill? That's my takeoff. The ABA proposed adding seats to the High Court (which Cowardly Lion Joe Biden has passed on) and having the justices address most appeals like a final version of a federal court of appeals — three-judge panels.

Today? We have 11 enumerated circuit courts plus the DC Circuit. Under the idea that Roberts (and other Chiefs) are chief justice of the US, not the Supreme Court, that means we need 13 justices, so each of the 12 associates "rides circuit" on one and only one appeals court, no doubling up, and the chief does do on none.

Excluding the chief from panels, then, that gives you four groups of three justices that could hear four appeals at one time. When all four are done, a computer redraws the 12 names and start over. Then, when that's done, you leave time for petitioners, as at a circuit court, to ask for en banc hearings, decide which of those to grant, and leave time for full court work.

Per Vladeck, it sounds like the ABA wanted all cases taken by panel. I would tweak that to reserve some cases, by law, for going straight to en banc, for sure, at least some of the cases where the Supreme Court has original jurisdiction, but this would still strongly reduce docket work, remove an excuse for abusing the shadow docket and more. The chief, meanwhile, could focus on non-circuit courts, ie FISA, the International Trade Court and the few other Article III courts that aren't in the regular district-circuit parameters, and in concurrence with Congress on so-called Article I courts. 

With 13 justices, one would adjust the votes for cert. Should it be six, parallel the four now? Maybe only raise it to five, since we're going to use three-judge panels for most appeals.

Also, within the 13 justices, since the DC Circuit is a sort of tertiam quid, maybe we designate an "associate chief justice" who gets that circuit as their riding.

This all said, in an April 15 Substack, and with linked older pieces within it, Vladeck does mention ideas for reform, and ones he likes less, including expansion. (In this, he sounds like a liberal not a leftist.)

Specifically on expansion, via one of those links, he pretty much hates it. As with the elimination of the filibuster, he thinks this would only politicize the court even more. I chalk that up to balllessness of Democrats (assume Vladeck is one, and not a non-duopolist) as much as anything. As for it reducing hte legitimacy of the court? The court's done that to itself, but yeah, to some degree, if it further reduced its legitimacy, I'm one of those people Vladeck references that would at least halfway welcome that.

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