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This last Supreme Court term was harrowing—from momentous merits decisions about the First Amendment, parental rights, trans rights and more, to the stream of shocking “shadow docket” decisions and its enabling of many of the Trump administration’s executive actions. What does the 2025-2026 term have in store for our nation? What do we think will advance through the Court? What do we think will come up, when it comes to the shadow docket? And perhaps most importantly, how will the Court choose to mediate the Trump administration’s continued onslaught of executive actions?
Background reading:
Transcript:
00:00:00
Welcome to on the issues with Michele Goodwin at Ms. Magazine, a show where we report, rebel, and you know, we tell it just like it is.
On this show, we center your concerns about rebuilding our nation, and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we think about the future.
This last Supreme Court term was harrowing from momentous merits decisions about the First Amendment, parental rights, trans rights, and more, to the stream of shocking shadow docket decisions, and the court’s enabling of many of the Trump administration’s executive actions. What does the 2025-2026 term have in store for our nation? What do we think will advance through the court? And when it comes to the shadow docket, what is it that the court will take on, and that we will have no idea who is signed on to it, because that’s part of the principle behind the shadow docket. It can happen in the middle of the night where the court makes a decision, and it’s not really clear who’s in the majority, and who’s in the dissent.
And perhaps most importantly, how will the court choose to mediate the Trump administration’s continued onslaught of executive actions. Now, helping me to sort out these questions, and to set the record straight, is a very special guest for us at MS Studios and MS Magazine. I’m joined by Steve Vladeck, who is a professor of law at Georgetown Law, and a nationally recognized expert on federal courts, the Supreme Court, National Security Law, and military justice. You know him as a public commentator, and thought leader, and as a New York Times bestselling author of Shadow Docket, How the Supreme Court uses stealth rulings to amass power, and undermine the public. You also know him as a friend of ours at MS Magazine and MS Studios. So sit back and take a listen.
00:02:25 Michele Goodwin:
Steve, it’s such a pleasure to be with you. It’s a joy. Our MS readers and listeners appreciate engaging with you. And here we are at this time in which a Supreme Court term opens. Let me start with this, Steve, what do you see as blockbuster cases? Or do you see that the whole enterprise right now is blockbusters, and we just, yeah, need to be on, or that we are on pins and needles?
00:03:00 Steve Vladeck:
I mean, it’s striking. Michele. First, let me say, it’s such a treat to get to spend any time with you, but especially, this kind of time with you. It’s striking to me, you know, because you and I are used to the conventional form of the Supreme Court preview panel, and podcast, and blog post, and it’s always like, hey, here are the 4, 5, 6, big cases the court has taken this term, and there are a couple of those. I mean, there are a couple of conventional, you know, big ticket cases. I mean, whether it’s, you know, the Louisiana redistricting case, or the transgender, you know, sort of straight up, discrimination cases, the question Skrmetti did not answer. But I really do think that it’s already true, even before the term formally starts, that the dominant theme of the term is going to be the court’s relationship with President Trump.
And you know, as we sit here recording, the court already has two Trump cases on its merits docket. It has the tariffs case, in which it’ll hold oral argument in November. It has the firing of Rebecca Slaughter / should we overrule Humphrey’s executor case? It’s a Freudian slip that I started to say Lisa Cook, because there are so many people to keep track of.
00:04:11 Michele Goodwin:
There are lots of people to keep track of, right now, Steve.
00:04:16 Steve Vladeck:
But I mean, you know, Michele, here we are in September, and there are already two, if I’m confident about nothing else about the upcoming Supreme Court term, that number is not going to stay at two. And you know whether it’s other removal cases like Lisa COOK and the Federal Reserve Board, whether it’s the Alien Enemies Act, whether it’s birthright citizenship, whether it’s other immigration policy. I mean, you name it. You know if last term the real dominant story was the Trump emergency applications, I think the dominant story of the upcoming term is going to be the Trump merits cases, and whether we see any more pushback from the court in these merits cases than what we’ve seen so far in the emergency applications.
00:04:54 Michele Goodwin:
So, then let’s distinguish really quickly for audience. I’m so glad that you touched on that. The distinction between the merits cases, and what might be a substantive review, versus what we’ve seen, the cases that were answered with a procedural angle. What’s the distinction for our audience?
00:05:15 Steve Vladeck:
Yeah, I mean, it’s it boils down to sort of the difference between what the temporary rule should be and what the permanent rule should be. And so, you know, cases can take six months, two years, three years, to get from when they’re filed to a final decision by the Supreme Court. Michele, it’s become, obviously increasingly important, across all the work that you do, the work I do, the work lots of folks do, what the rule is going to be during that interim period, and that’s where the idea of emergency relief comes in. You know, should a district court order blocking a policy be allowed to remain in effect for the duration of the appeal, or should it be stayed. That has enormous short-term consequences. It tends not to conclusively resolve the legal validity of the underlying thing being challenged.
The merits cases are that. The merits cases are, okay, whatever the interim rule is, is the thing that the government is doing actually legal or not? And so, those rulings have, you know, a bunch of different features. They tend to be permanent. They tend to have, sort of, conclusive resolutions of legal questions baked into them. And Michele, one of the striking things is, for as busy as the Supreme Court has been in granting emergency relief to President Trump over the last, you know, eight months, as we sit here, very few of those grants have come with, you know, merits like analysis. Very few of those grants have come with the Supreme Court putting a thumb on the scale of whether what Trump is doing is legal or not.
So you know, a lot of folks who are more cynical about the court may say, oh, well, they’re just going to roll over again, and give trump everything he wants. You know that might turn out to be true, but there are reasons to be, at least somewhat, circumspect.
00:07:00 Michele Goodwin:
Well, you know, this reminds me of a cocktail hour podcast that we would need to do, and that cocktail hour podcasting would be whether this was a design that was intended for Donald Trump, or for someone else, right? And that’s a whole lot to unpack, and I think that you were teasing at it. But I want to press just a little bit more on this question that you’re helping to answer, which is, the difference between merit and substance, versus that which is procedural, and to give some highlight examples, for our audience, cases that I know that they were paying attention to.
So for example, the FDA versus Alliance for Hippocratic Medicine case right, or Moyle V United States. Examples of cases that were, ultimately, addressed on procedural grounds, right and Moyle, the court, very well could have said that, look, federal law Trumps state law. EMTALA, this Emergency Medical Treatment and Labor Act, it actually protects women who are in urgent need of having an abortion, which in fact, had been the narrative conclusion that came out of the DOJ, about whether EMTALA did actually apply to cases of abortion, and and the memos were like, yes, it does. The court doesn’t reach that in that Moyle case, right. So it’s procedural.
The same is true with the FDA versus Alliance for Hippocratic Medicine, right. It’s procedural grounds. It’s that they don’t have standing, and we’ve seen a bit of this, and you touched on birthright citizenship, right.
Do we see that coming up this term?
00:08:39 Steve Vladeck:
I think so. You know, the Solicitor General represented, during the oral arguments back in May on the emergency applications, that the government would, expeditiously, seek to bring, you know, these cases back on the merits. They haven’t yet, and they had some opportunities, but you know, one of the cases was argued in the first circuit, the federal appeals court in Boston, back on August 1. That will presumably generate a decision soon. There was a decision over the summer by the Ninth Circuit in one of the state cases.
So yeah, Michele, I think one way or the other, that gets back to the court. And let’s be clear, on the merits, the Trump administration is going to lose that case. You know, it might even not be close, but this is the really difficult task I often find myself confronting, at this particular moment, which is, a lot of these cases on the merits, are losers, and yet, right, Trump is allowed to, you know, enforce the unlawful thing for some period of time by dint of these, either unexplained, or under explained, stays that the Supreme Court keeps issuing.
And so, that’s why I think, you know, the story of the upcoming term is not just about the non-Trump cases. It’s about whether we see the court, actually, show more of a backbone once it is conducting more ordinary review of what the Trump administration is doing, than what it’s showing us to date.
00:10:05 Michele Goodwin:
So one of the things that you’re speaking to is the fact that it’s not abstract, and when it is that the Supreme Court permits the Trump administration to move along these agendas, rather than allowing them to go their way through the lower courts, where there have been, you know, injunctions imposed, etcetera, been reviewed by courts of appeals, and that, rather than the courts just simply, the Supreme Court, leaving it there, the Supreme Court has allowed for further judicial review, which some would say that the court has played some favoritism towards the Trump administration, and and though there’s been attention towards justice Ketanji Brown Jackson critiquing the court in that vein, before she even got on the court, you know, Justice Kagan was saying that. Justice Kagan, at least with regard to First Amendment, you know, she was like that the majority brethren on the court, at that time, were weaponizing the First Amendment. Justice Sotomayor said, you know, things that have been similar.
What’s your take on that? Has there been a greater solicitude that this Court has shown towards the Trump administration? And look, that’s not like just a softball question. Really want your take on that.
00:11:26 Steve Vladeck:
I mean, so it’s not a softball question. The answer is, yes, but it’s worth explaining why I can say that with a fair amount of confidence, right. It’s not, this is not just a sort of visceral reaction.
So, you know, I’ve probably written more than any human being reasonably should ever have written about the Supreme Court’s behavior on emergency applications. And one of the things that is striking about what the court has done in the Trump cases, Michele, specifically, is the complete disappearance of what we might call the balancing of the equities. And what we mean by that, you know, I know you know this, and I know the lawyers who are listening to know this, but for the non-lawyers, the traditional things that courts are supposed to do when deciding what the interim rule should be, is balancing how much the party seeking relief is likely to win, against the relative harms that would ensue from blocking the thing now versus not blocking the thing now.
And you know, you see that kind of analysis, Michele every day. A good example is, you know, just last week, the Supreme Court granted a stay of a trial in the New Jersey Transit case, and it said, because the other side has shown that it won’t suffer any irreparable harm. Like in non-Trump cases, the Supreme Court is regularly relying upon the balance of the equities to either justify intervening, or justify not intervening. Earlier this summer, Justice Kavanaugh wrote a concurrent opinion in the Mississippi Age Verification case where he said, I think the challengers are likely to succeed on their First Amendment challenge, but I don’t think they can show irreparable harm.
So, it’s not like the court has ditched the traditional balancing of the equities in non-Trump cases. But Michele, in all of the Trump cases, you know, any I think, objective reviewer would look at the balance of the equities, and see significant favoring of the plaintiffs.
You know, a million Venezuelans who lose their ability to be protected from arrest, detention, and removal from the country. Transgender service members who get kicked out of the military. Federal employees who are getting fired. You know, those are imposing immediate, and in many cases, not reparable harms, against the government’s you know, at best, loosely differentiated irreparable harm, and not being able to carry out some of its policies.
And that analysis totally disappeared. And so you know, when people like me say, are they playing, are they showing…you know, or forget me, when Justice Jackson, you know, says there’s, you know, there are two rules, right, and one is, and one is that the Trump administration always wins. You know, that’s not just a sort of gut. It is reflected in how, in like cases, or at least otherwise like cases, the courts go in one way if Trump is in it, and one way if he’s not. And that’s, you know, true, not just as compared to non-Trump cases, right now. It’s true if we compare how the courts are reacting to these applications, versus how it reacted to Biden administration applications.
I mean, the problem is that when you step back and look at the whole field, the conclusion that something different is happening in the Trump cases, becomes just about irrefutable.
00:14:38 Michele Goodwin:
It’s hard to ignore.
Listeners, I am joined by Professor Steve Vladeck, who’s Professor of Law at Georgetown University, Law School, Law Center. We now go by Georgetown Law. He’s a recognized expert on federal courts, the Supreme Court, national security, and military justice, and he is the author of The New York Times bestselling book, The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the public.
Steve on this topic of the shadow docket, can you give our listeners a quick review about what exactly is a shadow docket.
00:15:22 Steve Vladeck:
Sure. I mean, it’s funny how much the term has become a matter of debate, as opposed to what’s actually happening.
So, the term was coined by Will Baude, he is a University of Chicago Law professor, and actually, a former clerk for Chief Justice Roberts. In 2015, and it was not, Michele, as you know, meant as a pejorative, right.
Really, Will was trying to capture, sort of evocatively, everything the Supreme Court does other than the 60ish, you know, big, signed rulings in argued cases, that are typically what we focus on when we focus on the Supreme Court. And you know, Will’s basic point, which I think has been true for a very long time, is that that subset, what many call the merits docket, the 60 cases that get argument, that get long opinions, is actually, a tiny minority of what the Supreme Court does. And by focusing only on those cases, we’re missing some pretty important stories about the court. We’re missing some pretty important ways in which the Court has, and exercises power. And you know, Will wrote that 10 years ago, before the real uptick in the sort of use, and to my view, abuse of emergency applications. It’s become commonplace for folks who don’t know the literature to sort of equate the emergency docket and the shadow docket.
The emergency docket is just a subset. I mean, there’s other stuff the court does away from its merits docket, that’s pretty important, granting and denying certiorari, right. Deciding which cases to hear.
00:16:48 Michele Goodwin:
Right. Which cases come up before the court, which cases don’t get the court’s ear, and attention.
00:16:54 Steve Vladeck:
And when. I mean, so you know, just earlier this month, the machinations over just how quickly the court was going to hear the tariffs cases, versus the court’s refusal to move nearly as quickly when it came to, you know, the January 6 prosecution against then former President Trump, and whether he had immunity.
And so, you know, the point is not that…
00:17:15 Michele Goodwin:
Tick tock, Steve. Tick Tock. How quickly?
00:17:19 Steve Vladeck:
Well, but this, I mean, Michele, like, again, you know, this is, I get sort of a little frustrated when the courts defenders insist that shadow docket is a term that’s meant to delegitimize the court. No, it’s really meant to capture the fact that a lot of that stuff is happening in, if not the literal shadows, then at least the proverbial shadows. That the orders are usually cryptic. They’re unsigned. They are seldom explained. They are sometimes even hard to find. They can come down at all hours of day, including in the shadows of night.
I mean, so you know, the term really has taken on a life of its own. But the broader point it was meant to convey was, we don’t, we ignore that part of the Supreme Court’s workload, at our peril, and whatever you call it, you know, no one, I think, needs to be convinced, especially here in 2025, that that really is a very, very important part of what the Supreme Court is doing. And you know, sort of not just the conventional merits docket, where we talk about, hey, what’s going to happen next year at the Supreme Court?
00:18:20 Michele Goodwin:
It strikes me that one of the aspects of what you’ve talked about, even these decisions coming down, these orders in the middle of the night, and that they’re unsigned. As law professors, one of the things that you do in your classes, that I do in my class, I ask, well, what’s the year of this case? Who’s on the court? Sometimes I’ll say, you know, you’ve got the Scalia…
00:18:43 Steve Vladeck:
What’s the lineup?
00:18:44 Michele Goodwin:
That’s right, what’s the lineup, you know. Scalia and Thomas, Batman and Robin, you’ve got Brennan and Thurgood Marshall, also aligned, right. You get a sense of what the family of the court is. You know, who likes, you know, they’re bread toasted. Who’s the vegan on the court? Who’s the pescatarian, as a version of that, right. Like you, you get to see the personality behind it all. And that gives you some sense of intuition about the way in which the the opinion is being written. It gives you some sense about what is, you know, sort of undergirding the concurrence. It gives you some sense about why those in the dissent are dissenting, because you can see that over time.
With the shadow docket, one of the things that you have pointed out, is that sometimes these aren’t, you have no idea who says what. No idea, and so that it is, actually, hard to hold, if you could even, Supreme Court justices to account, or at least be able to say, here is where justice so and so got it wrong. Here is where, you know, this group of justices have weaponized a certain theory of law, a methodology. You can’t really say that very much with a shadow docket, because you have no clue.
00:20:03 Steve Vladeck:
Well, and I would just say, everything you just said is exactly right, and I would just pile on with two more points. The first is, one of the things that I find especially exasperating about that is then you have folks who are more sympathetic to the court, who try to provide their own explanations for what the court might have been thinking. And you know, Michele, these are smart people. Those explanations are often plausible, but that’s all they are. Is plausible. We have no way of knowing, you know, why justice X might have voted this way, especially when they voted a different way in a very similar context.
All that would have been bad enough. And then, we got to the NIH Funding Case in August, where Justice Gorsuch wrote this remarkably, tendentious, concurring opinion, that not only insisted that when the Supreme Court is issuing these rulings, even with no explanation, those are precedents, but that was very, very critical of three particular district courts for, in Gorsuch his own words, defying the Supreme Court’s, you know, un or thinly explained rulings in those three prior cases.
And Michele and Justice Kavanaugh joined that concurrence in full, ironic, given that two weeks later, he’s at the Sixth Circuit Judicial Conference, telling the lower court judges that he feels, you know, he understands that this is difficult for them. It is just, it’s the hubris of it, that we don’t have to explain ourselves, but you have to divine what we must have meant. And we’re going to call you out if we think you got it wrong.
And what’s especially striking about that is, you know, two of his three examples, one was the DVD case, a case about third country removals, where, Michele, the court had literally not written a word, right, where the sum total of the order…
00:21:47 Michele Goodwin:
Right, so how could one predict, or how could one look through a past record of the court, when nothing is there?
00:21:53 Steve Vladeck:
And worse than that, the thing that the district court had done in that case was something that Justice Sotomayor’s dissent in the DVD case, had specifically said was fair game, right.
So, the only opinion that the district court had was a dissent saying, yeah, our order doesn’t cover this. So that’s one.
The second was Gorsuch chastising the district judge in the NIH Funding Case, in a concept in which five of his colleagues disagreed with him, that the order clearly, in the in the earlier case, called Department Education versus California, clearly foreclosed everything the District Court did, right. I mean, Barrett sort of split the difference in a way that meant that Gorsuch got part of what he wanted in that case. But you know, it wasn’t just the democratic appointed. It was Chief Justice Roberts who did not think that the district court ruling, in that case, was controlled by the California ruling.
And so, you know, I am consistently struck by just how, either oblivious, or just indifferent, the justices to the right of center on the court, and especially the Gorsuchs and Kavanaughs of the world, are to what kinds of messages, mixed messages, they’re sending to district courts. Michele, many of whom are, you know, killing themselves in these high pressure, late breaking, fast moving cases, to get out, you know, 75, 80, 85 page opinions, right, to build as much of a record as they can on a short timeframe, only to have the Supreme Court, not just give that the back of its hand, but then complain that they, the lower courts, were defying the Supreme Court.
I had already been critical of what had been happening before the NIH opinion, but I mean, I don’t think it’s a coincidence that all of the noise we’ve seen over the past month from lower court judges, who are now publicly complaining about the Supreme Court’s behavior, came on the heels of that particular ruling.
00:23:51 Michele Goodwin:
I’m wondering, Steve, are there cases coming up that have the potential to serve as a check against the Trump administration? So, we’ve heard from justices that are sitting on the court, right now, real concern about the conservative super majority, that they give a level of deference that is been previously unseen to the President, and a significant concern related, then, to what that means of this press president, right. Unpresidential kind of conduct, the the mass volume of executive orders that directly contravene the Constitution, the number of executive orders that are facially discriminatory, and unlawful, the executive orders that misjudge the relationship between the President and Congress, that seeks to usurp congressional authority, real concerns about whether the administration has respect for federal judges and federal courts. All of that.
So, we know that there have been, with Justice Jackson, we talked about waving a flag, about this, Justice Sotomayor, waving a flag. Justice Kagan, to some extent, even you know, nearly a decade ago. But I’m wondering even, that all notwithstanding, is there some sense that there might be any cases that come up where the Trump administration may be dealt a hand that it doesn’t anticipate, that it doesn’t like?
00:25:35 Steve Vladeck:
So maybe. I mean Michele, the answer is, maybe, and the longer we extend the time horizon, the more confident I am that the answer is probably, yes. But one of the things that I think doesn’t get enough attention in the mainstream media coverage of the Supreme Court is how selective the Trump administration is being about which cases it’s taken up.
And so, it’s not just which cases is it bringing emergency applications in, but also, which cases is it hustling up for full review on the merits docket? It’s not a coincidence that the tariffs case got there first, right? Because I think there’s reasons why DOJ might think its substantive arguments are especially strong in the tariffs case, compared to some of the other cases, and politically right, why it wanted that case there first.
So, you know, there are lots of cases where they’re already losing in the lower courts, and not objecting, right. Either, you know, either not appealing at all, or appealing but not in any hurry, and not seeking any kind of emergency relief, and complying. So, you know, Michele the law firm cases, where you had law firms targeted by executive orders, and those law firms challenged the executive orders, all the firms won, and the Trump administration is appealing a couple of those cases. But Michele, when I say they’re appealing as slowly, and begrudgingly, as possible, right.
I mean, who so you know they’re already losing, I think is part of the story. Will they lose in the Supreme Court? So eventually, yes, right. At some point the birthright citizenship cases will get there, and they will lose. You know, at some point the Alien Enemies Act case is probably going to get there, although, just yesterday, as we’re recording this, the government asked the Fifth Circuit for rehearing en banc. So, basically, sort of slowing down how long it’s going to take for that case to get there. So, I think they will, I think the court…
00:27:23 Michele Goodwin:
That’s an interesting strategy, too.
00:27:25 Steve Vladeck:
Yes, yes.
00:27:26 Michele Goodwin:
Right?
00:27:26 Steve Vladeck:
Well, because, if you’re the…
00:27:27 Michele Goodwin:
Right, exactly.
00:27:29 Steve Vladeck:
If you’re the government right, would you rather litigate that case in the Supreme Court or in the en banc Fifth Circuit? I’m like, oh, the en banc, Fifth Circuit, that’s better for us.
00:27:38 Michele Goodwin:
Exactly. Yes, yes, right. So, what you’re saying is also, there’s some, there’s strategy with this, where the Trump administration realizes that there are losses. And that’s really important for our listeners to hear, and understand, that even though there appears to be this thumb on the scale at the Supreme Court, and you give very strong evidence of it, it’s hard to deny, and look beyond what one sees in terms of that bucket on fire. But at the same time, what you are sharing is really important, which is the district court level, the Trump administration has been losing quite a lot.
00:28:12 Steve Vladeck:
Losing, and I mean, so, you know, we are so, conditioned is not the right word. We are so nervous, right, about noncompliance, that anytime there’s even a hint of noncompliance with the district court rule, and it’s huge news, whereas, you know, just sort of quiet compliance isn’t news at all.
And so, in the vast majority of cases, right, two things are happening. The administration is losing, and it’s either not appealing, or it’s appealing without any alacrity, and in the interim, it’s complying. So, you know, that is Michele, small consolation to fired federal employees, to migrants who have been removed, to you know, grant recipients who don’t have money that they’re supposed to have. I mean, I don’t, I’m not trying to sugarcoat this, but there’s a nuance to the narrative here that I think is not fully being felt in a lot of the media coverage, which is, yes, the Supreme Court is siding with Trump a lot, and in ways that I think are not always easy to defend. That doesn’t mean that the courts have been toothless. To the contrary, right. It means that, in the cases that have gone to the Supreme Court, the Supreme Court has been enabling a lot of what, to my view, is unlawful behavior by the government. But there’s plenty of unlawful behavior that’s been stopped. I’m sorry.
00:29:31 Michele Goodwin:
No, no, no. I one of the points that you’re touching on…two things come to mind in what you’re saying is that, one, it is important to understand that one cannot conflate all judges, and justices, right. So, one can’t look at this time, and just say, the judges are all bought. They’re bought and sold. They’re all, you know, deferring to this administration. And that’s not true, and that includes even, judges that have been appointed by, nominated by, Donald Trump.
00:30:06 Steve Vladeck:
100 percent.
00:30:06 Michele Goodwin:
There are judges that have pushed back. Judges that were Republican appointed, that no, this is unlawful, this is unconstitutional. So, Trump has been losing more than winning.
It is the case, though, that some of those wins really do, many would say, undermine the rule of law, really sort of challenge our sense of the Supreme Court, and its legitimacy, which I think, might link to Americans having such a poor point of view of the Supreme Court, right now. The American confidence in the court is incredibly low. It’s the lowest that it’s ever been, since data has been tracked on on this. But I think the point that you make is really important. And one other thing that you tie to that, and that is the lawyers that are bringing this case, me, you and I, we teach students, and there are students, right now, that may be wondering, some may be motivated to come to law school because of this. Some may be wondering, oh my gosh, what will this legal profession look like afterwards? But to your point, there are lawyers that are winning, and challenging, the Trump administration,
00:31:11 Steve Vladeck:
That’s right. And so, you know, we are so inclined, in this day and age, to sort of blow every one development out of out of proportion, if it supports our thesis, right. You know, oh, look, this has happened. I have one anecdote, therefore there must be a pattern. And you know, one of the complexities of the volume of cases, which is, Michele, as you know, completely unprecedented, involving the Trump administration, is that there really isn’t any one story, right. Once we get to the Supreme Court, so far, there’s been one story, but that’s partly because of how one, Michele, choosey, right, DOJ has been and two, the only cases that have gotten to the Supreme Court with the government on the bottom, meaning where they lost in the lower courts, were the Alien Enemies cases, because the government’s not winning in the lower courts. And that is itself an important, you know, piece of the story.
And so I guess my, you know, sort of bottom line is, it’s a huge Supreme Court term, not just because of the cases that are coming, but because of this narrative, right. Because of this sort of seeming gap between the overall track record the Trump administration has in all of these cases, which is abysmal, and the, you know, incredibly good track record the administration has in the Supreme Court, in a context in which the best thing the court could be doing to defend that track record is writing the opinions it’s not writing. And in a context in which the court is, in some respects, its own worst enemy by failing to give principled reasons for what sure looks like, what Justice Jackson has accused the majority of, right, which is that the rule that matters is that Trump wins.
00:32:53 Michele Goodwin:
The time flies by much too quickly when we are on the line together. I have two questions for you. I’ll be ending with thinking about, asking you to think about, where’s the line of hope. You and I were recently together with another Supreme Court term preview, and it was a question that was asked over and over again, it seems, about hope, but before we get there, is there anything else that our listeners should be mindful about with regard to this Supreme Court term?
00:33:27 Steve Vladeck:
I think the only thing I would say is, you know, I have, I’ve already, I’ve long been a bit of a, I don’t know, maybe iconoclast, when it comes to sort of how much we think about the Supreme Court by reference to terms, right. So that the mantra that we think about the Supreme Court on a term-by-term basis, Michele, is very much a world in which the merits docket is driving the conversation, because the Supreme Court’s term, the notion that it starts in October, and that it’s basically done by June, is really talking about the merits docket. It is talking about the cases that get argued, you know, starting in October through April, and then decided by June. And that’s just not the world we live in anymore.
You know, we are sitting here in September, in a week where we’ve already had one major ruling on an emergency application, and where we’re expecting as many as four or five others. And so, I guess, you know, when I look ahead to the Supreme Court’s October 2025, term, it seems like, you know, we don’t want to give short shrift to the non-Trump cases. I mean, the, you know, for reasons, you know, as well as anyone, the Louisiana Voting Rights case is enormously important. The Transgender Bathroom and Sports cases are enormously important. But from the broader, long-term rule of law in America perspective, you know, I think a lot of folks really want to see this Supreme Court do more to stand up to President Trump, and whether the tariffs cases are going to provide that opportunity, I have no faith that that will be true in the removal cases.
Slaughter is not going to be the case where the court stands up to Trump. You know, whether there are other cases that come up later in the term, I think folks are just looking for even small pushbacks, at this point. And the more that the Supreme Court doesn’t do that, the more that the court, you know, sort of, not just, Michele, sits idly by, but actually affirmatively gets in the way of lower courts pushing back against this behavior. I think that, you know, the point you made about the court’s public support, and public approval, is really the critical one, which is the more that will erode.
And you know, it may seem sort of silly to worry about the court’s public polling, but actually, I think it’s critically important, because the court, you know, as you know, the court’s power is soft power, and the less public support the court has, the less ability it will have, at some point down the road, to stand up to a president who’s doing unlawful things. Right that like, you know, the paradox of all of this is that the longer the court waits to push back against Trump, the less of an ability it might actually have to do so. And that’s, you know, especially with an eye toward next November’s elections, that’s the thing I worry about the most, more than any one of these individual cases.
00:36:08 Michele Goodwin:
So then it’s even more challenging than to get to this next question, but you pivot well. And so, here it is. Given all of that, where are the signs of hope, or for law students, and for those that are non-law students, quite frankly, the folks that are feeling miserable, right now, the level of grieving for this country is high, right now. So, what’s the story that we tell to the American public that are trying to figure out whether our democracy can withstand what is being seen, right now? What are your thoughts, Steve?
00:36:55 Steve Vladeck:
So, I guess, I would say two things. I actually think they’re probably consistent, right, with the conversation we’ve been having. The first is, don’t lose sight of the stories that aren’t making headlines in the media, and the stories that aren’t making headlines, but that should give us at least some confidence are all of the ways in which law, actually, is constraining the Trump administration. You know, the cases the government’s losing and not appealing, or the cases it’s losing, and not taking right to the Supreme Court. Those matter, right. I mean, they don’t fix everything, but they matter a lot.
And then, the second piece of this is, you know, when we think about our democracy, I mean, the you know, the signal moment of any democracy is an election. And so, you know, to me, for as much mischief as Trump has caused, for as divisive as his behavior has been, for as disruptive as the government’s activities have been, you know, we all, at least, should have a chance to vote for different people, at least in, you know, the House and the Senate, come next November, and you know, I think all of this looks very, very different in a world in which Democrats control either branch of Congress, let alone both of them.
Now the cynical response that is, well, Trump will just try to mess with elections, and he’s already made, you know, bad noises in that direction. The good news, such as it is, is there’s only so much he can do, right, that we have devolved authority over state and federal elections, principally to local and state governments. We have a long array of statutes that bar any effort, any use, right, of federal troops to try to disrupt voting.
You know, there are some pressure points in there. Could trump start launching, you know, wide scale ICE raids in all kinds of blue cities, in the days leading up to elections? You know, maybe, but maybe that would be challenged in court. And so, we should be sort of prepared for that kind of mischief, but we shouldn’t assume that the elections can’t and won’t happen, because then you’re obeying in advance.
And it seems to me that, you know, we have a chance, all of us, Americans, whatever your politics, to say we actually want a government that believes in the rule of law, and not just the rule of Donald Trump, and that until that opportunity is taken away from us, you know this is all bad, but it’s not irretrievable.
00:39:15 Michele Goodwin:
Steve Vladeck, thank you, so very much, for joining me. Thanks, so much, Steve.
00:39:20 Steve Vladeck:
Thanks, Michele.
Michele Goodwin:
Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin, and I want to thank my guest, Steve Vladeck, for joining us, and being part of this critical and insightful conversation.
And to our listeners, I thank you for tuning in for the full story. We hope you will join us again for our next episode, where we will be reporting, rebelling, and telling it just like it is, as usual. It will be an episode you will not want to miss. And for more information on what we discussed today, head to MsMagazine.com, and be sure to subscribe.
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This has been your host, Michele Goodwin, reporting, rebelling, and telling it just like it is. On the Issues with Michele Goodwin is a Ms. Magazine and Ms. Studios production. Michele Goodwin is the executive producer of Ms. Studios. Our producers for this episode are Roxy Szal, Oliver Haug, Mariah Lindsay, and Allison Whalen. The creative vision behind our work includes art and design by Brandi Phipps, editing by Natalie Hadland, and music by Chris J Lee. Our intern is Emersen Panigrahi.