STEVE INSKEEP, HOST:
There are at least two stories in this latest court action. The first we just heard - what the court did. Another is how they did it - through what Cory called the shadow docket, where they take action without hearing full arguments in a case and typically without explaining themselves. Stephen Vladeck teaches law at Georgetown University, and he writes about the court, so we called him up. Good morning, sir.
STEPHEN VLADECK: Morning, Steve.
INSKEEP: What are the circumstances in which the court would act this way - in this abrupt way without full arguments?
VLADECK: Yeah. So the - you know, these are what we know as emergency applications. And the idea is that as the case takes time to work its way through the court system - you know, months, sometimes years - what should the status quo be? Should the status quo be that the president's efforts to restructure the department are blocked, or should the status quo be that they're allowed to go forward? It used to be, Steve, that these were rare, that we would only get maybe a handful of these kinds of rulings every term. We've seen a remarkable and unprecedented uptick in the volume since President Trump came to office in January and since many of his actions ran into trouble in the lower courts.
INSKEEP: Well, that is an interesting point. Lower courts have repeatedly ruled against the president. The Supreme Court steps in repeatedly and overrules the lower court. What's the count? How often have they done that through the shadow docket in recent months?
VLADECK: Sure. So since April 4, yesterday's ruling was the 15th time that the Supreme Court has put on hold lower court rulings that had blocked Trump initiatives. Now, Steve, the denominator's important. I mean, we're talking about, you know, at this point, more than a hundred different lower court rulings. Part of what's going on here is that the Trump administration is being very selective in which of these cases it's asking the Supreme Court to put on hold. But even that number, Steve - 15 - is an unprecedented number compared to every prior presidency.
INSKEEP: But you're - I think you're telling me the Trump administration is undefeated when they appeal to the Supreme Court with an emergency application in this way since April - 15 out of 15?
VLADECK: Fifteen out of 15. And what's really striking, Steve, is - to go back to Cory's point - the Supreme Court has written only three majority opinions in those 15 rulings. And yesterday's order was the seventh in which the justices provided no explanation at all. So it's not that the court is blocking all of these lower court rulings. It's blocking the ones that Trump is asking it to block, and it's not telling us why.
INSKEEP: Well, I'd like to know how significant you think that is because you're telling me that they repeatedly, consistently overrule lower courts. They repeatedly, consistently rule in favor of the Trump administration, a Republican administration, and Republican presidents appointed the conservative majority that seems to be at the heart of these rulings. They keep ruling in favor of the administration. Does it matter that they also don't give their reasoning? I mean, there could be a good reason for some of these things.
VLADECK: There could be a good reason, but, Steve, it's enormously important that we don't know what the reason is. Take yesterday's ruling as just one example. In asking the justices to intervene, the Trump administration made three different arguments, only one of which was that what the president is doing is actually legal. The other two arguments were procedural reasons why it objected to the lower court ruling. Steve, which one of those actually got purchase from a majority of the justices is critically important in understanding whether what the court did was to say, yes, what you're doing is perfectly fine - you should go ahead - or whether it really was more of a procedural technicality. Without that kind of explanation, we're left not knowing whether what's happening is legal and lower courts are left not knowing whether they should proceed and whether they should block similar actions by the Trump administration.
INSKEEP: In a couple of seconds, are we just left to assume that the court prefers to defer to the executive in general?
VLADECK: I think that's part of it, Steve. I think also the court may be thinking that by letting these actions go forward now without endorsing them, it's pushing confrontations with the administration down the road. But, you know, Steve, that bill's going to come due and soon. And the question is, will the court have the capital? Will the court have the willingness to push back against the Trump administration on the merits when that time comes?
INSKEEP: Stephen Vladeck of Georgetown, thanks so much.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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