Transcripts For CSPAN2 Stephen 20240704

Charles allen wri Stephen Vladek holds the charles rent university of texas published in the New York Times Los Angeles Times he has argued before the Circuit Court that speaks in and of itself and the Supreme Court analystt in 2013 and steven livs in austin texas. I will hand it over to them. [applause] good evening. Stephen vladek a hero in his own town and its great to be here. The first thing i want to ask is will move this conversation. There is still time. I think 20 minutes of silence is about right for a book about the supremed court decisions. It has gone better than last night actually. Are you sure you dont want to just talk about ken paxton . [applause] for an hour. I [applause] yeah. If you have not seen her for the book its terrific and thats up to it andth the book itself is e right book for this moment when its so much in the news and on our minds and well talk a lot about the Supreme Court today in the context of this book lets begin by talking about the book in defining our terms. Immediately in the book make a distinction between the merits docket and the shadow docket. To find those things that we understand. I think we are most familiar with decisions of the Supreme Court hands down after argument of multiple rounds including one largely of the clean water act and let when we think of the Supreme Court that is the least until recently what we tended to view as the Supreme Court, the work of the Supreme Court and the shadow docket is a term coined by chicago law professor and 2015 that describes basically Everything Else at the Supreme Court does. By volume it ends up being 99 of what the Supreme Court does and not the merits docket. These unsigned usually unexplained orders and most of those are the nil. I dont think we be here on a thursday night if we were upset the parties got more time to file a brief in the case but one of the insights the book tries to build upon is not exploited is a lot of important stuff happens in these unexplained orders increasingly more and more port and stuff that happens through these on explained in unassigned on explained an undefined order so we who care about the Supreme Court whether professionally personally or both should be paying more attention to what happens into inscrutable often unacceptable ruling. You have too read the book about the coining of this term coining of this term and i went back ana read the paper that he wrote in which he coined the term and explained what he talked about and what i was clear on is a result was we talked about two things. We are talking about on the one hand orders and one of the problems with t these orders beg the nil they transparency. What we come to expect from the court they tell us that this is thinking and signed opinions and these orders are not visible to us and transparency but then their reversals. Summer reversals that have become part of the practice of the courts and thats more complicated. Can you talk about those . I against the shortest way of describing it is even though we most of our time talking about the merits docket the merits docket is the exception but its unusual for the court to resolve a case by riding a 50 page decision so we get summary reversals are where the court writes a short opinion reversing a lower Court Without argument and without the party having the opportunity to brief the case. But their other orders that have dramatic effect. Here in texas there was an unsigned mostly unexplained order latet at night on september 1, 2021 that cleared the way for sba for the sixweek abortion ban to go into effect and it was unsigned in an unexplained order just last monthh they kept in place nationwide access to mifepristone part of the medication abortion. These orders can come in differentt shapes and sizes. The critical point the book tries to give is there actually the bulk of what the Supreme Court does. Ur and increasingly their stuff happening in those orders thats monumentally important in ways that we had not until the fda case publicly mentioned. Spare whats extraordinary for most of us growing up paying some attention to the Supreme Court in reading the news we would not know if we are talking about 1 of what we see in our lives is 1 . The visible part of the iceberg is teeny tiny but theres this whole submersible. Ebit wasnt the visible partf it that sunk the titanic it was aso submersible so i should have put that in the book [laughter] but thats exactly the metaphor which is the book tries to do two Different Things. The first part is to say the service is really important and lets all spend time understanding it and developing it and find out t what it is in the second part is where it gets into more trouble is where i say oh by the way once we look atat whats happening beneath this surface last forever six years we see lots of problems great look at the impact. I wanted to stay on this rumor second talk about this concept emergency r relief when people seek emergency relief it results often in the decision that comes in the shadow docket. What constitutes an emergency. Its totally subject to interpretation. If you think about litigation the typical lawsuit before it gets to the Supreme Court is gone three years of litigation and state courts in texas federal courts whatever the Supreme Court is fun to to say where our quarter preview and not vercio. Emergency relief is counter to that. Emergency relief is hey it will take four years froms mifepristone to get to the Supreme Court in what is the status quo going to be all that happens . For now so is it going to be the first trial judge in amaral amarillo is that going toll be e law of the court rule going to be frozen . Thats where we talk about emergency relief not because they are all emergencies in the colloquial sense. Because they are judicial emergencies in the perception of shortcircuited and the normal process seeking the extraordinary because of the implications of this early in the lawsuit ruling going into effect arere not going into effect. In this book the way out the loss of subject matter, areas of the law or the shadow docket is very important and one i want to start off a ski with capitol punishment. Really as it relates to capitol punishment. Capitol punishment is the independent variable that moves the shadow docket. If you think about it executions are in some contexts the quintessential case for emergency relief. You have the statement and a prisoner on row with fullthroated judicial review hip his or her challenges either their condition or the method of execution and theres not going to be enough time for the court to provide ordinary process before the execution so historically thats the classic point and it turns out that this is one of the things i learned recently in ridingg the book it is the Supreme Courts reinstitution of the Death Penalty in 1976 the precipitates this real shift in how the court handles all applications so in the old days the norm was if you had one of these applications you could go to the socalled circuit docket one of the nine justices with geographical possibilities in her your part of the country. Right now [inaudible] i wish i didnt know that. Well talk about mourns tonight goes on. Yes, yes we will. Turns out that job is to act as a for the whole court and what that meant in the old days is they would hold arguments by themselves sometimes commandeering and riding opinions by themselves and this meant there was a modicum of with the parties had an opportunity to be heard for there were some rationale for decisions that were interfering intervene your not intervening and no one was confused of a ruling by Civil Justice for broader pronouncement. That was the model all the way up and for penalties in the courts concerned about follow that model the pushes the court in the 1980s to start having multidevice of emergency applications resolved by the full court. Because its the full Court Without argument, without full abridgment and without opinion. That happened in the early 1980s. Those who clerked on the Supreme Court in the 80s to the 2000 it was a desk docket. I wish the court would take the steps. We didnt tend to focus on the procedural moves because it was unique to the Death Penalty case that was over there and one of the things that happened starting in the mid20s as the court starts sinking what had been a penalty specific approach and started applying it to everything, to obamas Clean Power Plan sent to immigration policies the mitigation measures in the Congressional Redistricting so that nowed thee procedural i would say problems become magnified and exacerbated his because they are magnified more broadly. The public is completely in the dark as to who decided in whose an agreement at who is in disagreement and unless you have a public dissent my memory of the Abortion Case is elena kagan lost it after that decision and said this is. But we would have suspected she would have opposed the decision that was new to her but we know the boat because we know was 54. So when there was a dissent we figured out what it meant and what was striking was that was not just the fierceness of Justice Kagan where she said at the end every day the shadow docket becomes more inconsistent and impossible to defend and to be clear what she objected to was this is squarely out of sync in conflict. Yes that was one of herr objections but its more in this overmyer defense. What she was directing to was september 2021 was the end of the a 10 month period for the court had been more aggressive and more active in intervening on the shadow docket for emergency applications to lock all kinds of state law where the court was repeatedly m steppingn to block covid mitigation measures in new york and california and you might notice the political balance of this. In those cases oftentimes running roughshod over procedural obstacles and issues that should have said hold your fire Supreme Court. Nowth to the exact same 54 majority saying oh our hands are tied. These procedural questions that we cant block it. In the way we are the only through line into the valence. The partisan valence not but the last thing to say about that is just as kagan disagrees with the conservatives. 54 in support of cheesed chief Justice Roberts and it helps underscore of the critiques of the shadow of docket are not strictly partisan is onehe of the repeat players n criticizing the conservative majority has been the conservative chief justice who defected in the sba case in their alabama reach a certain case in the clean water case in aprill of 2022 and they say the same thing hey im john roberts. I have not changed my stripes. Eisen institutional city sees the Court Legitimacy and credibility impacted negatively. Andg by using the emergency application method as a way of doing things that are supposed to be done with full fullthroated deliberations. Capitol punishment there seem to be number of cases in which liberty matters in the shadow docket. One thing that i thought i knew it when you said it but i think about it before that was a lot of this area is the. I know the shadow docket goes back to 1980. Really its the last six years. T i think i started paying attention to it really in the summer of 2017 because what changed it wasnt just that it was the Trump Administration versus the obama administration. It was at the administration took an aggressive approach to this particular procedural murder over to seek an emergency relief in the Supreme Court that none of his predecessors of both parties have done so one data point across the 16 years of the george w. Bush in the obama demonstrations, two slightly differentre presidencies but the government goes to the court for emergency relief so once every of the year. Seven of those decisions have no public dissent in seven cases theres no obvious partisan ideological decision. Thats part of the course in historical average. Trump goes to the court 41 times in four years and the justices acquiesced. They grant relief and 28 of those and almost all of those 28 aree republicans. The book tries hard in chapter 4 to the least at the beginning of the recent shift the justices were not leading the charge that the charge was led by as the Trump Justice Department thats there were all these opportunitiess for the court puh back and to say thats not what these kinds of applications are for and its not what we do in this t context. How much of this is the court and how much of this is this court . You cannot talk about the trump years without acknowledging during his four ears of president when gorsuch was appointed kavanaugh was appointed the court looks the way the court does and the court is the court and those those things have consequences not only in terms of the outcome of decisions in terms of the way the court operates. This is you riding your book. The courts conservative majority is used to obscure procedural jurisprudence to the right. So two questions. S first is that whats going on appointed justices are open to the idea of this procedural trick being used and therefore this is the way it goes. Or am i missing something . The problem is we dont have the counter side of the argument. We dont know whether the majority of democratic justices in the same circumstance like justice garland. Two Different Things are true and i think its worth suggesting both points. I do think theres something specific not about conservative judicial philosophy and conservative mythological interpretation. These particular justices that meant the braces came off as they were pointed and went right, replaces kennedy in 2181 of the big things that happened was kavanaugh is not nearly as pendulum swinging as kennedy other conservatives are little more confident about what they are going to do and Justice Ginsburg that marginalizes john roberts to have been the break of the shadow docket with the more liberal justices so part of it is who they are and i dont want to lose this point part of it is i think the shadow docket is a symptom ofof a broader thing whh is how remarkably and indefensibly unaccountable the current Supreme Court is and that would be true regardless of who is in office. We not be as troubled by the lack off accountability or he might have justices who are not reminding us every day of the unaccountability butat that wouldnt change the fact that it is in ways we have never seen before and accountable to Congress Trouble medicar because they are necessarily okay but i want to push you on this question that the court versus this court. Letseo say the ideological makp of the court is 63 in fed favor of the liberal justices not the conservative and they are doing it in ways that are in agreement that is the problem . How much of this is they are doing it and the decisions that result from them doing it i dont agree with. Is the right question. I would still write this book. But would it be doing so well . [laughter] it would be published by an Academic Press and it be in University Bookstores in my signing would be signing it for myself. Look there plenty of folks who i think are going to be at the court by the director of the bottom line. Thats perfectly fine. The book points out examples where he think the reached what i thought was the wrong bottom line that through the right process in the moratorium case but heres another policy that dies on the shadow docket were in august of 2021 the road and opinion. There was transparency at least. There was a majority opinion is that hey heres the relief that the album association of realtors is asking for. Heres why we think each of the prongs of that relief is satisfied. I agree with how the majority of however many justices interpreted the statute the Public Health service act for the moratorium but they did it right today provided a rationale. We know why. Contrast that for example the navy s. E. A. L. S mandating where federal judge blocked the covid mandate for navy s. E. A. L. S and the Supreme Court on first they the judicial courts invection putting the mandate back and effect without any explanation. I like the result and i think the military has the power to require especially seals to be vaccinated but theres a really important legal question lurking in that case about whether the courts newfound interest in expansion of religious liberty are applied to the military contrast to a Supreme Court decision that says the military is where religious liberty is concerned. Was there a procedural problem . I think theres the right result from my perspective. I cant they show their work every time . What is stopping them from doing that . Its a choice. Justice alito has publicly said and would say it is not a choice. Pieces were often riding against a deadline. I was about to get there. That is true in a nonzero set of cases but its not true anywhere close to the majority of cases so you can point to an example in the mifepristone case where the ordergh was going to go into effect at midnight. They had a federalhe deadline. A capital capitol case. The execution warrants as we had to give you a 601 so there cases where that is true but the case at 11 58 p. M. They missed the deadline by 23 hours in the other cases navy s. E. A. L. S vaxxing case there is no running clock but they have the ability, they can issue whats called an Administrative State which is a temporary freeze to give us time. Its not that they cant write and its not that they dont have the means to buy themselves time to write. If thats the court is not that the view that its under obligation to write it. But its such a bad book and they know its a bad look when a decision like the fda decision released without transparency at 1130 clock at night. You couldnt make it look like you care about how people regard your intentions or your work less than doing it that way. They dont seem to care at all about how theyy look roberts talks about the of the duty to protect the institution. No, they dont seem to act that way at all. The question is which are we talking about. Let me ask it this way who is the who is responsible for x. You have an answer and who is the and whos responsible . Well im going to jump far ahead. The real one is congress. Its congress that has taken its hands off of any meaningful second functionon its congress that forever number of years pulled all of these levers to keep the court in line. Congress told the court dont bother coming in because you wont have a firm this year. Congress told the court in 1868 you are outside of the legality reconstruction, go home and Congress Gives every federal judge pay raise. Gives a Supreme Court justice is y a tiny pay raise as they were mad atth them. So they are a levers congress has used to keep the core from veering into these deeply problematic residual holes. You say if congress wanted to effectively and the use of the shadow docket yes but i want to stress because theres a point that Justice Alito signs out that is an accuratedo summary of this. The problem is not the shadow docket. Shadows are not necessarily nefarious. Does the court need some mechanism for dealing with emergency applications . Are their outlier district judges and states that sound like texas that hand down a ruling . And cities that sound like amber amarillo. The problem is not the shadoww docket. Its when the decisions are inconsistent you get this problem of depriving the court at the principle method by which its supposed to persuade us as to adapting. Argued the legitimacy comes from our ability to provide principled justification. We dont expect you to agree with our principals wes expect you to agree that they are principals and when the court is not dividedip on principals and that through line that explains why party a is winning in party b is losing party a is a is a Dachshund Party b is a democratic president but thats the problem with the shadow docket. When the answer is because i said so with no explanation for the decision it does have the effect of undermining. Especially when theres no obvious reason why they said so. We have got maybe 10 minutes oror so before we go to questios fromxc audience and i want to me the conversation off the book and i want to talk about i know hes in the book but i want to talk about something thats not really in the book. The propublica excellent reporting on the complex that they identify that the gifts provided and that would say alleged but there doesnt seem to have been any dispute about it by the texas billionaire harlan crow. What did you think about the reporting when you read it and what did you make of it as it relates to the business of the court and should it shake further our confidence in the court . Let me start the small point because it deeply consistent with the book is a think it has did a lot to do with propublica. Why isnt the Supreme Court reporter for the New York Times the Washington Post and why did take this excellent but not necessarily classically named street to do the legwork here and if thats a reflection of this broader disease of thinking about the court is a function of the sum total of its merit docket and the Supreme Court reports on the court as the court holds itself out in ways that we wouldnt think white house reporters would on white house and congressional reporters report on congress. I think its also worth brief reflection on the broader problem in the book which is how we talk abouttht the court and t starts with the people who are on thene frontlines of talking about the court to thee public. And i say that as someone whos part of that. Im Supreme Court analyst. So thats the lowhanging and a great piece inho slate last week the shouldsa reignite the conversation with every 10 years about why we cover the court the way we do but i wrote about the resignation of that justice in 1949 in forbes resigned over dont think its remotely inaccurate what happened in the Justice Thomas case. It had been paid back before it became a public why did he resign because earl warren went to to him and he said you have to resign for the good of the court and if you dont resign nixon and congress will go after you. That was 1969. The last thing i will say is i think the other place where the current ethics kerfuffles dovetail with what im trying to do in the book is the same disease of congress advocating any responsibility. When john roberts and he said actually it was a separation of power concern and interfering with Judicial Independence were ive voluntarily will testify and hes not making that up. He generally believes that because we live in an era where theres a congressional involvement and investment in the court that characterizes the first 175 years but that is profoundly so the notion that congress couldnt exercise some oversight is allied by historical practices in the obstacle is not the constitution and the obstacle is our current politics. Yankee said around the time that you wrote on twitter and independent judiciary does not hold them unaccountable. This is really about accountability at this point whether Justice Roberts appearing voluntarily or this week harlan crow telling dick durbin throughlo his lawyer basically to take a long walk off of agh short pier. Im not going to provide you with what you ask for in the name of the public being made better aware of what went on here. This is really about accountability and the work of the court. Its about accountability. Going back to the constitution for second. Really struck me about harlan crows w lawyer and what strucke was that congress has no legitimate purpose in investigating anything crow may or may not have and its the most important textual case in the constitution is Congress Express power to impeach Supreme Court justices. Maybe we dont all agree on the stories in the revelations in the propublica reporting gives rise to an Impeachable Offense with the notion that congress decided that question and to investigate whether individual justices have engaged in conduct is horrifying to me in the separation of powers but also a. Erfect illustration as a civics textbook person myself did you say the civics tests civics textbook . The civics test textbook. Theres a mechanism on the other side of that regardless of how that came out called an election in which the person could be held accountable. There is no mechanism for all of us. Twoway andti at election time n Clarence Thomas and this goes back o to what you mentioned i guess one person read it. You are the king of law school. Bobby is remarkably not on twitter. You are on line and he is not period not to be accused with the initial statement from texas. Im speaking as an individual. I think it applies. Again the point is the teach this in constitutional law class. Yes we broke from the british practice by creating independent judiciary and the independent within the critically important heart of the judicial divide by those hamilton writes famously the court is supposed to be the favorite and it doesnt have force are well it only has precedent and it doesnt depend upon the modicum of Popular Support or force met. The emerging of a right that is somehow illegitimate or that source of Popular Support to exercise its power to be critical of the court and to assert leverage against the court is the fundamentally anathemas do that. I hope would be you would acknowledge their something delicious about this controversy being about thomas is as opposed onee of their justices. Visibles the least accountable audible justice. Thomas has been in a particular conundrum for any of you watching theau court because hes done everything he can to exempt himself from any form of scrutiny. I take that point. I would say you could point to less serious. Still problematic misreporting by Justice Sotomayor and Justice Jackson and a multimillion dollar book deal that justices get in we dont. I think they are problematic regardless of whether the author is someone from his book im going to like or whose book im going to throw out the window. Back to me on twitter i am easily identified as a progressive then i tried to tell a story that is not specific to whos in power and who is not. The real story is an institutional one about how it should ought to be terrain in the court. One last data point and probably the word is one that you never thought youd think about before the court started with a married document and the court decided 57 cases on the docket and that is crazy low. Thats the 4th term in a row. The last time was in 1864. Im fine with the court deciding that they are deciding it they are deciding out of sight. So why haspp that happened . Because no one is telling that justice which cases to take even though for 101 years the court has no discretion over the docket even though for 135 years had have little discretion of its docket in 1980 it had partial. Congress refuses to tell the court which cases to hear and thats part of the story of how they pushed against each other. You identify yourself on social medias progressive. The person that coined the phrase the shadow docket was was to get in trouble for. He was troubled by it when he coined the phrase. Th to me this is not about left or right. This is about transparency and accountability for yolo. Thats the challenge for People Like Us and the challenge the book tries to surmount is to tell a story about why everyone should be bothered by institutional behavior of the court even if you are more favorable for the outcomes that emerge from that behavior then perhaps i am. You need to bee procedure devout in the end. Will go to questions. We have microphones and will take as many as time permits. Why do we take one right here in the front and welcome back to the other side as well. You mentioned the propublica revelations. Im curious if you talk about in the book about the compelling example of not much has changed and the stark contrast between voting on the merit daca which is the shadow docket. Thete media has abdicated [inaudible] did you hear the question . Itso. Something, something hate on the media. No, no. The short version is i think the media they do see some on the court but keep in mind the press corps has the cover the court and part of the problem is the courts needs access in ways that disincentivized folks who are physically in the press corps from convention. The way it comes out the court is incredibly narrowly circumscribed into one Public Information office. And the pil has this will tell you when they feel like it approach. So i think the court is more part of the story than the press because the Court Demands the press corps comply. To the point of the journalist got to president that person might be denied access. The pio is not making policy. They are doing what they are told to do. Partss of the issue is the court itself is so not used to being treated like the other theitutions because of notion that court is above the fray and the more that we come to accept and appreciate that the court is part oft the fray the more the court ought to act like its part of the fray from that perspective. One part of this the court has finally reopened to the public fully this term but the good news they are still livestreaming arguments. The bad news they wont go through the opinion announcement which there is actual audio of the justice handingo down the rulings of the things that matter as opposed to the arguments that the court would go on a tangent about. The things that matter in the courtroom you have two wait 10 months until the audio comes out. I wouldnt put all the blame on the press corps. Quickly before we go to another question i did the leak of the Dobbs Decision by politico not get the through . How did that change the relationship with the media . There are sources of that leak in their robes inside that building have become paranoid about talking to anyone outside so its complicated the storyass opposed to hi steve. Thanks so much for this. My question relates to congressional oversight and does congress have the exercises power to legislate and whats it like that the Supreme Court would review that legislation and state constitutional and may be its in the book. Its a great question. It depends on what the legislation is. It was legislation from 100 z. Years ago the constant all the time the court would have a hard time striking it down. For sample one of the ways congress exerted power over the court in the 19 centersrs that made it a circuit and you had to go out on the road to do your cases. Someone might take a private jet to get to those. Theres a historical precedence to that. Where the legislation looks newer yeah i think thats. If the court is striking down legislation to make the court more publicly accountable that vested phillippe proves the concept. Congress would have accomplished a purpose. Again the politics are such that its hard to see how we got there. If we got there i think either will outcome comes from an institutional design. Over here, please. Hi. Thanks for being here tonight. I recognizee your argument is t about partisanship but i wonder if you could speak to when you say above the fray friend since its an understanding that its not that political and get theres this long history of justices who weaponr candidates for governor and things like that so i wonder if you could talk about what it means to be a justice also cough, cough ginni thomas cough, cough. I had a longer version of the story in the book. My editor made me take it out. Fdrs running mate in 1944 where if you play that forward in april 1945 its only because the guide with the names on the piece of paper so trumans famous first. Anyway. Frankfurter routinely consulted with fdr. The real reason why people were mad wasnt that it was the financialhe problems. I think we have sometimes that the notions that the justices are not clinical and they think its good. There is political in the naras partisan and theres a distinction between the two that we have heard a lot in recent years partly because the court itself has spread out. There was never a moment in the courts history where p the pary of the present wasnt an ideological alignment with theco court. Its only in 2010. I think that has consequences that ought to be responded to instead they leave the edit leastwl conscious. Roberts does think in the direction of trying to preserve thens institution and bakeries that the Institution Needs to be preserved. Ec roberts gives that speech to the law american law institutef under the group of lawyers versus the conservative justices going to the Mitch Mcconnell center to complain about ian curtis is for being partisan. So theres defenses that the justices are their own enemy. Take this question of politicization of the core. Every four years of president ial candidate campaigns either by winking or knowledge in out loud that this is about the court as much as it is about the president. Especially republicanha candidates. The i message implied is elet me because im going to fill that seat. As recently as 100 years ago im going to fill that seat doesnt mean i will fill that seat with the person farthest from my plank of the party. He was appointed by isner because eisenhower won a state court judge so thats the shift. Thats a shift in behavior is rooted in our contemporary politics that the court has two and has not responded to. I want to take more questions and im hope one of them is about expanding the size of the court if somebody would ask that. I will do a on your question as it relates to that. If we have more than nine on the Supreme Court or justices the shadow of a shadow docket would it be or lighter . So i think the short version is the four justices would come more possibilities for securing procedural matters. And that the more justices youll have you have more and theyll take the chance to esanswer the question. I am exagainst expanding the court forr theresa first is very real politics. Democrats when they were in control of both chambers of commerce and the presidency at the four states ofof t the courn the next time republicans the republicans were in charge they added 10 for the democrats would add 17 so 20 years from now well well have court with 51 justices and no legitimacy and if you want to destroy thehe court, im here to praise the court and not to bury it. The other problem though is again and this is whats consistent with what ive been saying for the last however months the problem is not as much who the justices are as how accountable they there and if you add more justices who we might like it doesnt make them more accountable. Doesnt make the court more accountable, so to me we fall into the trap when i think the whole conversation is about what the bottom lines are. We got here and part because of the institutional relationship breaking down. Spin coming over here next would you be open tome some shift in e way justice is served so that rather than being lifetime appointed there were a retention elections or someme other mechanism that would give some form of accountability . Spin i think it would bebe in constitutional. So what . [laughter] im just actually playing around. In a world in which you could get something throughon both chambers of congress to reform the Supreme Court so yes. Again that would be fairly part of reform. We dont need a constitutional amendment to restore a much healthier much more powerful dynamic. We just need a congress that thinks partl, of this job is institutional and not to be partisan. I do have the Supreme Court related question but first i understand youve been on the road for t long time and you are finally home and maybe its time for a small comment of frivolity in that vein. I want to make sure you are coming back. To texas . No to the nfl. Thats up to him. My, does you no evans is an enormous yankees fan. I m do. I just wanted to make sure you knew that. Evan grew up in cleveland. We are counterproductive. To the Supreme Court do find it and this is a little bit off but do find it ironic ironic may be twoweek of the term that the Supreme Court now is in taking apart the ministry to state in one sense in the simplest terms is a saying congress is not providing enough guidance and here you have the Supreme Court at the heart of your objection to the shadow docket is it doesnt provide guidance. And darere i say contradiction. I dont think its a contradiction. If the opposite side of the coin which is the court has claimed power in the context of this administrative regulation by suggesting that congress is said over and over again is a question of basque political significance to the doctrine congress has expressly authorize the program. We might see that in a few more cases. Thats a similar move to me for the court saying he met congress you havent done these things and you cant do these things. Where again how the supreme sicourt amasses power. Amassing power in both directions and it capitalizes on what the justices know to be true which is our current ipolitical landscape is one in which there is no appetite forn, institutional abhorrence to poor example to restore the epas authority to restore the control over the court. I think its deeply consistent and not inconsistent. Do we have time for oneer mo . What do you think about dobbs . Think what do you think chief Justice Roberts never followed up on his investigation . I dont know who leaked dobbs. My theory is then that it was the Second Generation leak that a justice d leaked the draft toa friend not expecting it to become public and it was the press that made the decision to send it out to the world. But youth would acknowledge e problem was that justice leaking it to the press. Gas but we know it has happened before. But it doesnt make it right what we dont talk about in the dobbs cases a week before the dobbs leak the wall streete journal ran an editorial talking about how it was 54 there were efforts underway to intimidate on to soften and its very well sourced given what follows. It doesnt account for how it was leaked for their sister story in the Washington Post that identifies quote lawyers close to the conservative justices reporting on what was said in congress and dobbs conference where there were only nine people in the room you stuck a device in there which by the way would be pretty cool. So the story of the dobbs leak is not who leaked it or why we dont talk more about the weeks surrounding it that would have been on their own some of the most remarkablee leaks out at te court. Your question about Justice Roberts. Sometimes you dont want too fid out. I think they are two features of the courts internal investigation one is is he going to let the executive branch investigates and invite the fbih to investigate the works of the court and its not hard to imagine a universe where he had decisions about where the leak came from a specially relatively higher in the organizational chart he might have been inclined to not push that hard on how those suspicions are applied and the book ends of with the chief because i find roberts this fashion fascinating part is during his the most unpredictable when it comes to the topic of the book into things are true. One is he does not have as much power as the chief. He is not the boss of the other eight justices. You might havean thought that between 18 and 2018 and 2020 20 as a bully pulpit that hes used before and where i think one of the real questions is why is he using a more right now because i have no trouble believing that a lot of what isi happening now has Serious Problems for the court in the long term and whether thats because it will get in the way of the substantive objective for the cause is institutional views that are altruistic. If you coulde say more if he could be more public and frankly and this is not a suggestion. If you really think the court can be saved he could resign. And by the democratic president fill his seat. Hes a complicated character because even as these complaining about these promotions. L do you agree with the premise on roberts that the person who leaked it is higher in the chart because staff member and the staff member to a liberal justice who is mad. Spin if you talk to folks whove ever worked inside that building and i have pay what i think almost all say that the odds go up the higher in the totem pole you go. The clerk who is found to be a weaker is risking their entire career where is the justice would be invited to give speechesan at banquets and flown jets. Vate on that upbeat note we are going to stop. [applause] give Stephen Vladek a big hand. It was great. [applause] booktv is live at the library of Congress National book. Ladies and gentlemen, welcome to the foundation. And good morning. Its great. Ladies and gentlemen welcome to