The Interim Docket and the "Annie Hall" Problem

I’m excited to be part of the team kicking off the new Interim Docket Blog. For those who are new to tracking the Supreme Court’s work on the “interim docket,” you should read Jack’s inaugural post explaining what the interim docket is, and why we should call it that rather than the “shadow docket” or the “emergency docket.”  

In my kickoff post, I’d like to suggest something worth keeping in mind when you encounter someone criticizing the Court for its work on this docket, whatever one calls it.

To explain, I’m going to rely on the classic film Annie Hall (which I did on a Divided Argument episode recently).  At the beginning of the movie, Woody Allen begins with a classic Borscht Belt joke that he uses as a metaphor for life:

There’s an old joke. Two elderly women are at a Catskill mountain resort, and one of ’em says, “Boy, the food at this place is really terrible.” The other one says, “Yeah, I know; and such small portions.” Well, that’s essentially how I feel about life: full of loneliness, and misery, and suffering, and unhappiness, and it’s all over much too quickly.

I think this captures something important about current debates over the interim docket—particularly, criticism that tends to use the ominous “shadow docket” label. The Court gets a lot of flak for how it uses the interim docket procedurally: It acts too quickly and provides insufficient explanations of why it’s doing what it’s doing. Call this the “small portions” problem. At the same time, many critics strongly dislike the substance of what the Court is doing via interim orders—what you can think of as the “terrible food” problem.

What’s important to see is that, much like the elderly women’s restaurant review, there’s a certain schizophrenia to these criticisms. People don’t like the decisions the Court is making, and want the Court to offer longer and more thorough explanations of those decisions. Now, one can believe both critiques simultaneously. If the Court is doing things that are substantively problematic, maybe it owes us all more of an explanation when it does so. And I believe both are true in some instances—there are things the Court is doing that deeply trouble me and cause real-world harm, and I’m also troubled by the Court’s seeming flippancy in doing some of those things on a rushed timeline with little or no explanation.

It’s also possible that there’s a direct relationship between the two problems. As Steve Vladeck notes in pushing back on the “interim docket” label, often the Court’s interim rulings are effectively, if not formally, final—such as where the Court stops a lower court from staying a deportation order. Perhaps in some such cases, having to go through the full process of briefing, oral argument, and a lengthy opinion might actually lead the Court to decide an important issue differently. I’m somewhat skeptical that this would happen much, if at all, but it’s a reasonable argument.  

But sometimes “shadow docket” criticism may be more grounded in substantive, not procedural, disagreements with what the Court is doing. When the Court inevitably overturns Humphrey’s Executor in the Slaughter case, it’s going to get roundly criticized. And the fact that the Court previously granted a stay on the interim docket allowing the President to remove Rebecca Slaughter from the FTC, in violation of statutory law, will not figure prominently in those criticisms.

The lesson is that when you read or hear criticisms of the Court’s interim orders, ask what you see as the problem: substance, procedure, or both (or neither). If the Court were being slower and more deliberate, would the Court’s decision be equally problematic? Or is there a particularly distinct procedural problem that makes the “shadow docket” criticism especially apt in a particular case?