My second book about the Supreme Court offers a more nuanced diagnosis of exactly what’s wrong with the institution—and how (and why) we should fix it.
I am listening to Shadow Docket now and I was wondering how you'd analyze the change. It seems like the Court is trying to write more on the Shadow Docket but continues to create that confusion for the lower courts, litigants and the public even when they are writing. A striking observation is how contradictory so many of their rationales and observations are — internally, and individually even — about why they are changing procedures. Trump 2 has illustrated that this Court is reaping what it has sowed, and then complaining about it.
Are you thinking of decsions where they get it wrong? I would match rather they take a stand when they get it wrong for clarity for the public, litigants and lower courts than leave it ambiguous, uncertainty and chaotic. Writing even a spacious decsion forces you to lay out your flagged logic and gives others an opportunity to leverage the decsion in ways the justices wouldn't love. That accountability is a check.
That's a good question. Thinking again, it seems that they've been explaining precisely the few decisions they got right. and they might not have needed those of they hadn't issued those stays allowing Trump to keep breaking the law until they issued their final decision.
And yes, it's easier to criticize them better for allowing Trump's lawlessness if they gave an explanation for it that would naturally have to be flawed.
For some time I have thought that technology and science (including medicine) has passed SCOTUS by. The world is increasingly complex, making well-informed, objective decisions all the more difficult. There may be some with preformed biases. Thoughts?
I want to ask you about what I think is a bit of a paradox.
I agree with your (and Kennedy's) view that we need a court that has a reservoir of trust, and that court reform is needed to restore that.
But at the same time, I think the court is too trusted right now to allow reform to happen through the political process, esepcially when public trust in the political process (ie, Congress) is itself very low.
Does the court need to be broken in order to save it?
What about Congress legislating a sensible code of ethics for SCOTUS with input from legal scholars and current or retired judges of good repute? Make it similar to codes for lower court officials. Would the current court find it unconstitutional?
I also think there won't be enough votes. It is something that realistically requires a supermajority. That's one reason I'm somewhat not concerned about "tit for tat" fears -- IF it happens, I think Republicans will need to get something.
Some, however, are PASSIONATE about the need for court expansion, including some court commentators. Including many Vladeck fans.
Opponents like Steve Vladeck need to firmly address leading arguments.
First, people argue the current Court is already very partisan, corruptly so, and it was crafted that way. Basically, it's either (1) that claims are wrong [e.g., Prof. Kerr: "no, there wasn't any stolen seat," etc.] or (2) there was, but we are simply stuck with it and can temper the damage. Also, yes, but two wrongs don't make a right.
Relatedly, people argue that a fair system would not have resulted in the Court where we last had a Democratically nominated majority before Vladeck was born. Over 50 years ago. Again, we are stuck with it, or it didn't happen.
The shift referenced in the book happened over an extended period. But a key shift occurred after Kennedy's retirement. The solution seems to be to regain some balance with the same Court. Basically, tell a Court people think is "stolen" or "corrupt" to drive their stolen car more carefully. Maybe, since it's unlikely all the things he wants will happen, they will be somewhat more reasonable when they do things like Trump v. U.S. (a constitutional decision).
Third, people think court expansion is needed to protect democracy long-term. Vladeck's book will provide a rejoinder, providing another approach. Without knowing the exact details, I don't know how the supporters of expansion will respond.
But I think they will think it is too little, will take too long, and the Court meanwhile will continue to be dangerous. For instance, unless we change judicial review, justices will have the power to decide things, and there will be only so much we can do about it. That's the whole point on some level.
Anyway, since court expansion is such a passionate demand of people the author respects, and has some growing support as a Democratic demand, I suppose it is significantly addressed in the book.
As to term limits, I think it is ONE reasonable long-term tool. It's a norm in judicial systems worldwide. I think they make sense. Also, to some degree, it can be a moderating tool for a Supreme Court that is a bit too full of itself.
Anyway, I look forward to the new book. 2027 is a good year for it. People can read and discuss it with an eye on the 2028 elections.
You mention (and I think most of us already knew) that Congress is passing up the use of their power and pushing it on to the Court. I wonder if that is because they are so deficient in understanding the law. Although I have not done any research, it seems that in the past Congressional members were more educated in the law whereas now it seems that "Party" dictates what to support or quash;and aoll too many way "whew, wiggled out of that decision" and vote without any understanding of law. Maybe there should be a knowledge exam before being allowed to run for office?
So excited about your new book, Stephen! Will it also be published as an e-book? I read a lot but am elderly, my vision less keen, and I really appreciate the flexibility of electronic versions.
Thank you for your wonderful way of communicating interesting, meaningful and important legal matters to the non- legally trained. - Suzanne
I look forward to reading the book and am anxious to hear proposals for SCOTUS reform. However, it will be hard for me to support any sort of reform that strengthens the Court that does not also include powerful reforms of the appointment/confirmation process. I feel that the process now is too easily captured by one party or the other, resulting in a Court that poorly reflects mainstream thought.
I find it very hard to believe that any sort of improved explanation from the Court of its action in Onder would have dissuaded the 8th Circuit panel from its course. The same court that expressed doubts about its jurisdiction when the lower court decision favored one side turned 180 degrees just a few days later to aggressively assert its jurisdiction just a few days later when the stay granted by SCOTUS had the opposite result. This panel was plainly set on implementing the 2025 map regardless of any law or fact. THAT is the fundamental problem that we must solve with the federal judiciary. And no amount of rhetoric from politicians or even from higher courts is likely to solve that problem. In my opinion, all federal judges must firmly believe that they are to faithfully implement the Constitution and laws, including state constitutions and laws, or they will be promptly removed from office
I believe SCOTUS' "failure" with regard to the public can be traced to the 1925 Judges Bill which allowed the Court to decide not to decide cases. That decision now permits States (and even lower courts) to totally ignore the law and get away with it. My case, 22-387, is one of many examples where lower courts can totally ignore the Constitution and be allowed to get away with it. States can simply silently signal (i.e., no response) that, hey, this is a State decision, we win, so leave it stand via "Certiorari DENIED."
Additionally, Supreme Court Term limits make little sense. There are people that are senile at age 50. The small number of SCOTUS Justices made some sense when the country's population was 3,000,000 but it makes very little sense when the current population is 333,000,000. I suggest 45 or even 60 Justices then adjust up or down as needed to support SCOTUS written decisions with random 3 Justice panels on 100% of submitted cases with random 9 judge panels whenever the 3 panel is split.
I am listening to Shadow Docket now and I was wondering how you'd analyze the change. It seems like the Court is trying to write more on the Shadow Docket but continues to create that confusion for the lower courts, litigants and the public even when they are writing. A striking observation is how contradictory so many of their rationales and observations are — internally, and individually even — about why they are changing procedures. Trump 2 has illustrated that this Court is reaping what it has sowed, and then complaining about it.
I wonder should a court really be recommended for giving explanations on decisions that actually don't really seem to fit into the legal system?
Are you thinking of decsions where they get it wrong? I would match rather they take a stand when they get it wrong for clarity for the public, litigants and lower courts than leave it ambiguous, uncertainty and chaotic. Writing even a spacious decsion forces you to lay out your flagged logic and gives others an opportunity to leverage the decsion in ways the justices wouldn't love. That accountability is a check.
That's a good question. Thinking again, it seems that they've been explaining precisely the few decisions they got right. and they might not have needed those of they hadn't issued those stays allowing Trump to keep breaking the law until they issued their final decision.
And yes, it's easier to criticize them better for allowing Trump's lawlessness if they gave an explanation for it that would naturally have to be flawed.
For some time I have thought that technology and science (including medicine) has passed SCOTUS by. The world is increasingly complex, making well-informed, objective decisions all the more difficult. There may be some with preformed biases. Thoughts?
Book preordered!
I want to ask you about what I think is a bit of a paradox.
I agree with your (and Kennedy's) view that we need a court that has a reservoir of trust, and that court reform is needed to restore that.
But at the same time, I think the court is too trusted right now to allow reform to happen through the political process, esepcially when public trust in the political process (ie, Congress) is itself very low.
Does the court need to be broken in order to save it?
I was under the impression that the level of trust had significantly decreased. Not enough, perhaps.
What about Congress legislating a sensible code of ethics for SCOTUS with input from legal scholars and current or retired judges of good repute? Make it similar to codes for lower court officials. Would the current court find it unconstitutional?
I respect the concern about court expansion.
I also think there won't be enough votes. It is something that realistically requires a supermajority. That's one reason I'm somewhat not concerned about "tit for tat" fears -- IF it happens, I think Republicans will need to get something.
Some, however, are PASSIONATE about the need for court expansion, including some court commentators. Including many Vladeck fans.
Opponents like Steve Vladeck need to firmly address leading arguments.
First, people argue the current Court is already very partisan, corruptly so, and it was crafted that way. Basically, it's either (1) that claims are wrong [e.g., Prof. Kerr: "no, there wasn't any stolen seat," etc.] or (2) there was, but we are simply stuck with it and can temper the damage. Also, yes, but two wrongs don't make a right.
Relatedly, people argue that a fair system would not have resulted in the Court where we last had a Democratically nominated majority before Vladeck was born. Over 50 years ago. Again, we are stuck with it, or it didn't happen.
The shift referenced in the book happened over an extended period. But a key shift occurred after Kennedy's retirement. The solution seems to be to regain some balance with the same Court. Basically, tell a Court people think is "stolen" or "corrupt" to drive their stolen car more carefully. Maybe, since it's unlikely all the things he wants will happen, they will be somewhat more reasonable when they do things like Trump v. U.S. (a constitutional decision).
Third, people think court expansion is needed to protect democracy long-term. Vladeck's book will provide a rejoinder, providing another approach. Without knowing the exact details, I don't know how the supporters of expansion will respond.
But I think they will think it is too little, will take too long, and the Court meanwhile will continue to be dangerous. For instance, unless we change judicial review, justices will have the power to decide things, and there will be only so much we can do about it. That's the whole point on some level.
Anyway, since court expansion is such a passionate demand of people the author respects, and has some growing support as a Democratic demand, I suppose it is significantly addressed in the book.
As to term limits, I think it is ONE reasonable long-term tool. It's a norm in judicial systems worldwide. I think they make sense. Also, to some degree, it can be a moderating tool for a Supreme Court that is a bit too full of itself.
Anyway, I look forward to the new book. 2027 is a good year for it. People can read and discuss it with an eye on the 2028 elections.
You mention (and I think most of us already knew) that Congress is passing up the use of their power and pushing it on to the Court. I wonder if that is because they are so deficient in understanding the law. Although I have not done any research, it seems that in the past Congressional members were more educated in the law whereas now it seems that "Party" dictates what to support or quash;and aoll too many way "whew, wiggled out of that decision" and vote without any understanding of law. Maybe there should be a knowledge exam before being allowed to run for office?
Your book will come out only if the Orange Blob allows it...and he is already nearing "full fascist" mode.
So excited about your new book, Stephen! Will it also be published as an e-book? I read a lot but am elderly, my vision less keen, and I really appreciate the flexibility of electronic versions.
Thank you for your wonderful way of communicating interesting, meaningful and important legal matters to the non- legally trained. - Suzanne
Yup! It'll come out May 4 in hardcover, e-book, and audiobook formats.
Idea: have Vladeck throw a first pitch at a Mets game.
Dare we hope you'll be a guest in Strict Scrutiny's "Hot Supreme Court Reform Summer" series and give a preview of the book?
I look forward to reading the book and am anxious to hear proposals for SCOTUS reform. However, it will be hard for me to support any sort of reform that strengthens the Court that does not also include powerful reforms of the appointment/confirmation process. I feel that the process now is too easily captured by one party or the other, resulting in a Court that poorly reflects mainstream thought.
I find it very hard to believe that any sort of improved explanation from the Court of its action in Onder would have dissuaded the 8th Circuit panel from its course. The same court that expressed doubts about its jurisdiction when the lower court decision favored one side turned 180 degrees just a few days later to aggressively assert its jurisdiction just a few days later when the stay granted by SCOTUS had the opposite result. This panel was plainly set on implementing the 2025 map regardless of any law or fact. THAT is the fundamental problem that we must solve with the federal judiciary. And no amount of rhetoric from politicians or even from higher courts is likely to solve that problem. In my opinion, all federal judges must firmly believe that they are to faithfully implement the Constitution and laws, including state constitutions and laws, or they will be promptly removed from office
I believe SCOTUS' "failure" with regard to the public can be traced to the 1925 Judges Bill which allowed the Court to decide not to decide cases. That decision now permits States (and even lower courts) to totally ignore the law and get away with it. My case, 22-387, is one of many examples where lower courts can totally ignore the Constitution and be allowed to get away with it. States can simply silently signal (i.e., no response) that, hey, this is a State decision, we win, so leave it stand via "Certiorari DENIED."
Additionally, Supreme Court Term limits make little sense. There are people that are senile at age 50. The small number of SCOTUS Justices made some sense when the country's population was 3,000,000 but it makes very little sense when the current population is 333,000,000. I suggest 45 or even 60 Justices then adjust up or down as needed to support SCOTUS written decisions with random 3 Justice panels on 100% of submitted cases with random 9 judge panels whenever the 3 panel is split.
Happy birthday Steve! Thanks for sharing your knowledge and analyses with us.