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6 Jul, 4 tweets, 2 min read
Once again, not including the shadow docket in #SCOTUS data yields a very different statistical snapshot.

There were *18* shadow docket orders this Term from which *only* the three Democratic appointees publicly dissented. Three more were 5-4 with the Chief Justice joining them.
To be sure, it's 18 out of a larger denominator. But four of the 18 were dissents not just from orders, but from published opinions of the Court.

At the very least, it seems to me that we ought to be including *those* in any broader assessment of the voting lineups across cases.
I don't mean to pick on the fantastic @KimberlyRobinsn. Focusing on argued cases is something that the entire #SCOTUS press corps (and, indeed, the *Court*) does in its data. But the last few years have driven home why that's just not a sufficient picture of the Court's docket.
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More from @steve_vladeck

Steve Vladeck Profile picture
7 Jul
The October 2020 #SCOTUS Term doesn't officially end until Monday, October 4.

But despite what some stories will tell you, there have been a total of *33* rulings from the Court thus far from which the three Justices appointed by Democratic Presidents have publicly dissented:
12 of these were in cases we all pay attention to, because they were argued (or were companions to argued cases), and were resolved through formal opinions for the Court. But 21 were with respect to "shadow docket" orders, some of which have just as much impact as merits rulings.
And although the Court is done hearing argued cases for this Term, there's still three months left for additional shadow docket activity. Last summer, for instance, there were *five* separate shadow docket rulings from which all (four) of the Democratic appointees dissented.
Read 5 tweets
Steve Vladeck Profile picture
29 Jun
Writing a piece for @MSNBCDaily on @govkristinoem’s bizarre plan to send privately funded SD National Guard troops to the TX border. Short version: It’s probably legal, but (1) it shouldn’t be (we already have a law for interstate Guard sharing); and (2) it’s a (troubling) stunt.
To the first, the Emergency Management Assistance Compact (EMAC)—to which both SD and TX are parties—specifically contemplates circumstances in which a state could use help from other states’ Nat’l Guard units. That this is privately funded seems to make clear that it ain’t EMAC.
To the second, I wrote last summer about a dangerous precedent of having what are effectively red state armies and blue state armies, even when it’s the federal government requesting assistance.

lawfareblog.com/why-were-out-s…

To me, this is a further step down that slippery slope.
Read 4 tweets
Steve Vladeck Profile picture
21 Jun
A short #thread on why #SCOTUS's Arthrex ruling is a big deal:

A lot of adjudication happens in the Executive Branch. Social Security benefits; immigration claims; patent appeals; etc. And "judges" ("administrative law judges") are usually involved in *resolving* those disputes.
No one thinks these judges are the same as Article III judges (with life tenure and salary protection). But should they be *totally* beholden to their political masters, or should there be at least some modicum of independence insulating their rulings from political interference?
Congress has tried for the latter approach, creating detailed procedures to govern the hiring and firing of administrative law judges — and delineating specific circumstances in which their rulings can be overturned by the Executive Branch (as opposed to by an Article III court).
Read 7 tweets
Steve Vladeck Profile picture
16 Jun
With 17 #SCOTUS decisions in argued cases left, a brief statistical note on the impact of Justice Barrett versus Justice Ginsburg:

So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
On the "shadow docket," in contrast, there've been at least three rulings where she was in a (publicly) 5-4 majority; one where she was part of a 6-3 majority to summarily reverse (which usually needs six votes); & several where she *might* have been the fifth vote (e.g., Smith).
Two of the three 5-4 rulings (Roman Catholic Diocese & Tandon) are easily among the Court's most significant decisions of the Term thus far.

At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
Read 5 tweets
Steve Vladeck Profile picture
16 Jun
Yesterday, a Trump-appointed district judge issued a "nationwide" injunction (which I guess are fine now) against the Biden Administration's moratorium on new oil & gas leases on federal land:

ag.state.la.us/Files/Article/…

Hypocrisy aside, what's truly galling is the injury/equities:
Throughout the Trump Administration, #SCOTUS *repeatedly* issued stays of lower-court injunctions based on DOJ's argument that *any* injunction of federal policy not only causes irreparable harm, but that such harm tilts the balance of equities *toward* the federal government.
In other words, the reason why the federal government did so well on the "shadow docket" over the last four years was at least largely because of a subtle but undeniable shift in how #SCOTUS weighed *these two factors* — as I documented in 2019:

harvardlawreview.org/wp-content/upl…
Read 4 tweets
Steve Vladeck Profile picture
9 Jun
1/5: Turley is pulling a real Turley here, so let me be clear about what's actually true.

On June 9, 2020 (this date will matter), @rgoodlaw and I wrote a long @just_security post on the Attorney General's power, in general, to direct military forces in response to civil unrest.
2/5: As *part* of that post, we quoted from and linked to a news story in @thehill reporting—based upon high-level but unnamed DOJ sources—that it was Barr who had ordered the clearing of Lafayette Park.

Our post: justsecurity.org/70672/the-unto…

The Hill piece: thehill.com/homenews/admin…
3/5: One year later, the DOI Inspector General has concluded that Barr was *not* behind that controversial move. So be it. But Turley's tweet is not saying that *The Hill* (and, thus, our reliance on it) *was* wrong; he's saying I've "continued to claim" that it was Barr's doing.
Read 5 tweets

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