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BEGAN ITS TERM LAST OCTOBER, IT AGREED TO HEAR 65 CASES. BUT THEN IN JANUARY, THAT WORKLOAD SUDDENLY CHANGED. PRESIDENT DONALD TRUMP TOOK OFFICE, AND IN THE FOLLOWING MONTHS, THE COURT WAS ASKED TO TAKE UP A FLURRY OF LEGAL CHALLENGES. AND THE JUSTICES DID. IS THE COURT FUNDAMENTALLY CHANGING THE WAY IT HAS LONG CONDUCTED BUSINESS? ALICIA BANNON IS THE DIRECTOR OF THE JUDICIARY PROGRAM AT THE BRENNAN CENTER FOR JUSTICE AT NYU LAW. IT’S SO NICE TO HAVE YOU IN STUDIO. THANKS FOR JOINING ME. THANKS FOR HAVING ME. A LOT OF WHAT WE’RE GOING TO TALK ABOUT TODAY IS THE SHADOW DOCKET. WHAT EXACTLY IS THE SHADOW DOCKET? THE SHADOW DOCKET IS THE COURT’S EMERGENCY DOCKET. MOTIONS INVOLVING CASES THAT ARE TYPICALLY STILL ONGOING IN THE LOWER COURTS, WHERE THE COURT IS BEING ASKED TO STEP IN AND ESSENTIALLY PRESS PAUSE ON ORDERS THAT HAVE BEEN COMING OUT OF THE LOWER COURTS. TRADITIONALLY, THIS WAS RARELY USED, AND ONLY IN SITUATIONS WHERE THERE WAS SOME SERIOUS IMMINENT HARM, LIKE A PENDING EXECUTION. EMERGENCIES. REAL, REAL EMERGENCIES. BUT WHAT WE’VE SEEN IS THAT THE USE OF THIS EMERGENCY DOCKET HAS REALLY EXPLODED IN RECENT YEARS, AND ESPECIALLY OVER THE PAST FEW MONTHS. AND WHY DO YOU THINK THAT IS? WELL, ONE BIG CHANGE IS THAT WE’VE SEEN MUCH MORE RELIANCE ON THE SHADOW DOCKET BY THE TRUMP ADMINISTRATION. ONE STUDY FOUND THAT IN THE FIRST 20 WEEKS OF THE TRUMP ADMINISTRATION, THERE WERE 19 MOTIONS FILED BY THE ADMINISTRATION ON THE SHADOW DOCKET OVER FOUR YEARS IN THE BIDEN ADMINISTRATION. IT WAS THE SAME NUMBER. IS THERE A STRATEGY FROM THE TRUMP ADMINISTRATION TO PUSH THINGS THROUGH THE SHADOW DOCKET? THE TRUMP ADMINISTRATION IS, I THINK, USING THE SHADOW DOCKET AS A WAY TO BYPASS LOWER COURTS THAT HAVE BEEN VERY SKEPTICAL OF A LOT OF THE BEHAVIOR COMING OUT OF THE ADMINISTRATION. THERE’S BEEN VAST FINDINGS ACROSS A WIDE ARRAY OF JUDGES APPOINTED BY DEMOCRATS AND REPUBLICANS, INCLUDING JUDGES WHO HAD BEEN APPOINTED BY PRESIDENT TRUMP, THAT HAVE FOUND ILLEGAL ACTIVITIES BY THE ADMINISTRATION AND HAVE HALTED MUCH OF WHAT THE ADMINISTRATION HAS DONE. AND WE’VE REPEATEDLY SEEN THE ADMINISTRATION TURN TO THE SUPREME COURT, WHO, WITHOUT ANY KIND OF JUSTIFICATION, FREQUENTLY HAS SIMPLY HALTED THOSE LOWER COURT ORDERS AND ALLOWED ADMINISTRATION POLICIES TO MOVE FORWARD. GIVE ME AN EXAMPLE. FOR EXAMPLE, THE TRUMP ADMINISTRATION SOUGHT TO TAKE AWAY LEGAL STATUS FROM HUNDREDS OF THOUSANDS OF PEOPLE FROM LATIN AMERICA WHO WERE GIVEN LEGAL IMMIGRATION STATUS UNDER THE BIDEN ADMINISTRATION. THE SUPREME COURT STEPPED IN WITHOUT EXPLANATION AND BLOCKED A LOWER COURT ORDER THAT HAD SAID THAT THAT STATUS SHOULD CONTINUE. DO YOU THINK THIS IS THIS ADMINISTRATION, THE WAY THEY’RE DOING BUSINESS, OR IS THIS A NEW WAY THAT THE SUPREME COURT WILL BE DOING BUSINESS, OR A LITTLE BIT OF BOTH? I THINK IT’S A LITTLE BIT OF BOTH. I THINK THE ADMINISTRATION IS SEEING THAT THE SUPREME COURT IS VERY OPEN TO THESE SHADOW DOCKET MOTIONS. AND SO IF THEY THINK THEY’RE GOING TO HAVE A GOOD AUDIENCE FOR THESE MOTIONS, THEY’RE GOING TO KEEP FILING THEM AND THEY’RE GOING TO KEEP PUSHING THE ENVELOPE ABOUT THE KINDS OF CASES THAT THEY’RE BRINGING BEFORE THE SUPREME COURT. SO HAS THE SHADOW DOCKET BEING SO ACTIVE, KIND OF BLOWN UP WHAT EVERYBODY THOUGHT WOULD BE THE BIG IMPORTANT STORIES ON THE DOCKET. IN A LOT OF WAYS IT HAS. THERE HAVE CERTAINLY BEEN SIGNIFICANT CASES THAT HAVE COME OUT OF THE SUPREME COURT THIS TERM. MAJOR BLOCKBUSTER CASES. BUT REALLY, I THINK MANY OF THE MOST SIGNIFICANT HEADLINES COMING OUT OF THE SUPREME COURT HAVE BEEN THESE SHADOW DOCKET CASES RELATING TO QUESTIONS OF PRESIDENTIAL POWER, RELATING TO QUESTIONS ON ISSUES LIKE DEPORTATIONS. AS WE THINK ABOUT THE NEXT TERM, WHAT ARE THE BIG ISSUES THAT ARE GOING TO BE DECIDED? I EXPECT THAT MANY OF THE CASES THAT THE COURT IS NOW WEIGHING IN ON, PRELIMINARILY ON ITS SHADOW DOCKET, ARE GOING TO COME BACK AND ARE GOING TO END UP BEFORE THE COURT ON ITS REGULAR DOCKET. SO BIG CASES RELATED TO PRESIDENTIAL POWER, FOR EXAMPLE, IS THE PRESIDENT’S POWER TO FIRE HEADS OF INDEPENDENT AGENCIES. THAT’S SOMETHING WHERE CONGRESS HAS SAID THAT THERE ARE PROTECTIONS THE PRESIDENT CAN’T FIRE. FOR EXAMPLE, MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD WITHOUT CAUSE. THE PRESIDENT HAS SOUGHT TO DO SO, AND THE COURT HAS SIGNALED AN OPENNESS TO REVISITING A 90 YEAR OLD PRECEDENT THAT HAD SAID THAT THAT THE PRESIDENT’S POWER WAS LIMITED IN THAT WAY. ALICIA BANNON FRO