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I've been an admirer of your reporting for a very long time.
I've been an admirer of your reporting for a very long time
Thank you.
Thank you
Your latest reporting, Supreme Court,
Your latest reporting Supreme Court
which is one of the more opaque, I think,
which is one of the more opaque I think
that we have in our government--
that we have in our government-
some documents were leaked to you about the Supreme Court.
some documents were leaked to you about the Supreme Court
Talk to us about what this article is.
Talk to us about what this article is
So about a week ago, Adam Liptak and
So about a week ago Adam Liptak and
I put, in the pages of The New York Times, 16
I put in the pages of The New York Times 16
pages of internal documents from the Court,
pages of internal documents from the Court
private correspondence among the justices
private correspondence among the justices
that we were not going to see for generations, that
that we were not going to see for generations that
show the origins of something called the shadow docket, which
show the origins of something called the shadow docket which
is a new way that the Court has been doing business
is a new way that the Court has been doing business
for about the past 10 years.
for about the past 10 years
And so the reason we were eager to do
And so the reason we were eager to do
this is because this is a way of listening to the justices
this is because this is a way of listening to the justices
as they talk in private.
as they talk in private
These are them emailing, texting.
These are them emailing texting
Well, they're memos that are being shared.
Well they're memos that are being shared
Their clerks are the ones--
Their clerks are the ones-
They know Snapchat.
They know Snapchat
They don't--
They don't-
[LAUGHTER]
LAUGHTER
It makes sense.
It makes sense
But the point is that we can see the exercise of power
But the point is that we can see the exercise of power
in these memos.
in these memos
And we can also see the justices disregarding centuries
And we can also see the justices disregarding centuries
of time-tested legal decisions, legal decisionmaking
of time-tested legal decisions legal decisionmaking
process about being very deliberate
process about being very deliberate
and doing things slowly.
and doing things slowly
And in these five days of memos,
And in these five days of memos
they both halt President Obama's climate
they both halt President Obama's climate
change initiative.
change initiative
JON STEWART: These memos are from 2016.
JON STEWART: These memos are from 2016
These are from 2016.
These are from 2016
So they're stopping Obama's plan.
So they're stopping Obama's plan
Turns out, later-- we see this is, like,
Turns out later- we see this is like
the beginning of the end of federal attempts
the beginning of the end of federal attempts
to regulate greenhouse gas emissions.
to regulate greenhouse gas emissions
But also, they're doing this thing, like, really,
But also they're doing this thing like really
like, very quickly and without a lot of deliberation,
like very quickly and without a lot of deliberation
that is going to turn into a break
that is going to turn into a break
with the way the Court does business.
with the way the Court does business
And this is the origins of the system we see today,
And this is the origins of the system we see today
where, like, for example, if you
where like for example if you
look at how this court has treated President Trump,
look at how this court has treated President Trump
they've awarded him a lot of power.
they've awarded him a lot of power
They've done--
They've done-
JON STEWART: Virtual immunity from any--
JON STEWART: Virtual immunity from any-
The immunity decision was a merits case.
The immunity decision was a merits case
That was a regular, slow, played-out case.
That was a regular slow played-out case
Had to write it out.
Had to write it out
Yes.
Yes
On this emergency track, they have
On this emergency track they have
awarded President Trump a ton of power
awarded President Trump a ton of power
without explaining themselves to the public--
without explaining themselves to the public-
JON STEWART: Explain the shadow docket,
JON STEWART: Explain the shadow docket
because I think that's interesting.
because I think that's interesting
We're accustomed to the decisions that are made--
We're accustomed to the decisions that are made-
there's a dissenting opinion.
there's a dissenting opinion
There's a lot of law work that is cited,
There's a lot of law work that is cited
precedents and things like that.
precedents and things like that
How does the shadow docket differ from the other docket?
How does the shadow docket differ from the other docket
I don't know the terminology.
I don't know the terminology
The merits docket.
The merits docket
The merits docket.
The merits docket
So like, let's call those regular Supreme Court cases.
So like let's call those regular Supreme Court cases
They play out over a very long time.
They play out over a very long time
There are oral arguments, where things are discussed in detail.
There are oral arguments where things are discussed in detail
JON STEWART: Best kind of argument.
JON STEWART: Best kind of argument
The justices meet in person.
The justices meet in person
They have these secret meetings called conference meetings.
They have these secret meetings called conference meetings
They sit around a special table.
They sit around a special table
They sit in special chairs.
They sit in special chairs
Do they really?
Do they really
They do.
They do
They discuss the cases in person.
They discuss the cases in person
They vote.
They vote
They do many drafts of their opinions.
They do many drafts of their opinions
They go back and forth.
They go back and forth
They change things.
They change things
JON STEWART: They're deliberative.
JON STEWART: They're deliberative
They're deliberative.
They're deliberative
JON STEWART: What is the shadow docket?
JON STEWART: What is the shadow docket
Wait, wait, but I want to give you what is probably
Wait wait but I want to give you what is probably
the most important part.
the most important part
They write opinions.
They write opinions
And here's why opinions are important.
And here's why opinions are important
If we're talking about our elected officials,
If we're talking about our elected officials
they're accountable to us through elections, right?
they're accountable to us through elections right
If we don't like what they're doing, they're removed.
If we don't like what they're doing they're removed
These justices are appointed for life.
These justices are appointed for life
There are no traditional forms of accountability,
There are no traditional forms of accountability
save impeachment.
save impeachment
The act of writing an opinion is the act of accountability.
The act of writing an opinion is the act of accountability
It's a judge or a justice saying, listen,
It's a judge or a justice saying listen
you may disagree with my opinion.
you may disagree with my opinion
My opinion may put your brother in jail,
My opinion may put your brother in jail
or it may cause your business to close.
or it may cause your business to close
But I want to show you that I have been fair,
But I want to show you that I have been fair
and I've been diligent--
and I've been diligent-
JON STEWART: They show the work.
JON STEWART: They show the work
--and I'm just applying the law.
-and I'm just applying the law
So that is a judge or justice's explanation
So that is a judge or justice's explanation
to the public that, over time, has earned the Court's trust.
to the public that over time has earned the Court's trust
In a lot of shadow docket decisions,
In a lot of shadow docket decisions
there's like-- there's almost no opinion.
there's like- there's almost no opinion
It's, like, a paragraph.
It's like a paragraph
Like, on this 2016--
Like on this 2016-
Like just a Post-It?
Like just a Post-It
Like, yeah, that's not going to fly.
Like yeah that's not going to fly
It is pretty much a judicial Post-It.
It is pretty much a judicial Post-It
And it has instructions, like, that
And it has instructions like that
are kind of legal boilerplate.
are kind of legal boilerplate
But it has no reasoning, and reasoning
But it has no reasoning and reasoning
is the essence of the law.
is the essence of the law
And is this something that is not done--
And is this something that is not done-
when did the shadow docket appear?
when did the shadow docket appear
And couldn't they think of calling it
And couldn't they think of calling it
something less sinister than the shadow docket?
something less sinister than the shadow docket
Oh.
Oh
Well, there's, like, a whole debate
Well there's like a whole debate
about what it should be named.
about what it should be named
So the shadow docket emerged slowly over time.
So the shadow docket emerged slowly over time
And it definitely existed before this 2016 case,
And it definitely existed before this 2016 case
but it was used in a more narrow way.
but it was used in a more narrow way
It was used mostly for death penalty cases,
It was used mostly for death penalty cases
election cases that were too--
election cases that were too-
JON STEWART: You're saying like a literal emergency?
JON STEWART: You're saying like a literal emergency
A literal emergency.
A literal emergency
And so what we're seeing-- and we're seeing an expansion
And so what we're seeing- and we're seeing an expansion
of the shadow docket.
of the shadow docket
And the reason why this case was an inflection point
And the reason why this case was an inflection point
is because the DC circuit, which, as you know, is,
is because the DC circuit which as you know is
like, a very big deal court--
like a very big deal court-
JON STEWART: Oh, sure, I love their shit.
JON STEWART: Oh sure I love their shit
--was supposed to hear the case.
-was supposed to hear the case
And instead, the Supreme Court jumped in front of them
And instead the Supreme Court jumped in front of them
and made this ruling when no other court had weighed in.
and made this ruling when no other court had weighed in
The way it usually works is that the Supreme Court comes
The way it usually works is that the Supreme Court comes
at the end of the process.
at the end of the process
But don't they have to be--
But don't they have to be-
someone has to have standing and has to petition them.
someone has to have standing and has to petition them
They can't just jump in and be, like, shadow docket.
They can't just jump in and be like shadow docket
There was-- the applications came.
There was- the applications came
But what's interesting-- and, like,
But what's interesting- and like
I would really urge everybody to go
I would really urge everybody to go
online and read these memos.
online and read these memos
And also, Adam and I annotated them to-- like,
And also Adam and I annotated them to- like
they're not really written in English.
they're not really written in English
They're written in, like, a kind of legal Latin.
They're written in like a kind of legal Latin
So we did some translation for you to be able to see.
So we did some translation for you to be able to see
JON STEWART: Roberts in the memos, if I may,
JON STEWART: Roberts in the memos if I may
seems like a little bit of a catty bitch.
seems like a little bit of a catty bitch
Well, what I would say is that the chief justice
Well what I would say is that the chief justice
was in a real rush.
was in a real rush
Like, this was fast.
Like this was fast
Like--
Like-
But he seemed offended by certain things.
But he seemed offended by certain things
Well, he was in a power struggle
Well he was in a power struggle
with the Obama administration, which
with the Obama administration which
he felt had sidelined the court on a previous EPA decision.
he felt had sidelined the court on a previous EPA decision
So you are seeing-- like, you're
So you are seeing- like you're
seeing the chief justice be very dismissive of colleagues'
seeing the chief justice be very dismissive of colleagues'
procedural objections because the
procedural objections because the
Democratic-appointed justices are like, this is weird.
Democratic-appointed justices are like this is weird
Like, we've never done this before.
Like we've never done this before
Like, why would you do this?
Like why would you do this
Like, I have serious concerns about this.
Like I have serious concerns about this
And he says, we have to go ahead.
And he says we have to go ahead
This is urgent.
This is urgent
We have to do it this fast because this
We have to do it this fast because this
is the most expensive program of regulation ever imposed
is the most expensive program of regulation ever imposed
on the energy industry.
on the energy industry
So he says, no, this is an emergency.
So he says no this is an emergency
It's an expensive regulation about--
It's an expensive regulation about-
and if we don't jump in now, it's
and if we don't jump in now it's
going to cost a lot of money.
going to cost a lot of money
So then why not the tariff case?
So then why not the tariff case
When the president levies tariffs, why don't they, boom,
When the president levies tariffs why don't they boom
give him a shadow docket and go,
give him a shadow docket and go
you can't do that because it's going to cost
you can't do that because it's going to cost
us trillions of dollars?
us trillions of dollars
It's going to put small businesses.
It's going to put small businesses
How is that more of a emergency than the tariffs?
How is that more of a emergency than the tariffs
I mean, I think what you're asking is, like,
I mean I think what you're asking is like
has President-- you're asking, has President Obama and
has President- you're asking has President Obama and
President Trump, have they been treated
President Trump have they been treated
the same way by the justices--
the same way by the justices-
I am asking that.
I am asking that
[LAUGHTER]
LAUGHTER
Thank you.
Thank you
That's what I meant.
That's what I meant
So what we see--
So what we see-
I mean, what scholars have shown
I mean what scholars have shown
is that shadow docket cases have more partisan results--
is that shadow docket cases have more partisan results-
JON STEWART: Really?
JON STEWART: Really
--than the slow kind.
-than the slow kind
How many more-- when you say it was used,
How many more- when you say it was used
it's not used as much-- how often are they using it now?
it's not used as much- how often are they using it now
And how far does that number distance it from precedent?
And how far does that number distance it from precedent
I mean, this was a trickle, 10 years-- like,
I mean this was a trickle 10 years- like
when this case we wrote about happened,
when this case we wrote about happened
people were like, whoa.
people were like whoa
Like, what is even happening here?
Like what is even happening here
Now it is a regular way of the Court doing business.
Now it is a regular way of the Court doing business
We counted-- it was about 20 cases, in which--
We counted- it was about 20 cases in which-
Is it supposed to be temporary, though?
Is it supposed to be temporary though
Is it-- when they do a shadow docket, do they say--
Is it- when they do a shadow docket do they say-
That's very important.
That's very important
--we're just putting out a marker, and we'll come
-we're just putting out a marker and we'll come
back to it and tell you why?
back to it and tell you why
So defenders of the Court would say,
So defenders of the Court would say
yeah, these are temporary decisions.
yeah these are temporary decisions
Critics of the Court would say, but
Critics of the Court would say but
they have huge consequences.
they have huge consequences
Like, they're deporting people.
Like they're deporting people
You're not going to un-deport somebody, necessarily.
You're not going to un-deport somebody necessarily
Or you're making massive changes
Or you're making massive changes
to the federal government that are very hard to undo.
to the federal government that are very hard to undo
So they are temporary, but they are hugely consequential.
So they are temporary but they are hugely consequential
Has there been a shadow docket case
Has there been a shadow docket case
since Donald Trump took office, or
since Donald Trump took office or
in a Republican administration, that's
in a Republican administration that's
been utilized to diminish the power of the executive
been utilized to diminish the power of the executive
if the Republicans are holding it?
if the Republicans are holding it
And wouldn't that then just grant those powers
And wouldn't that then just grant those powers
to a new Democratic president when they're elected,
to a new Democratic president when they're elected
if we still have those?
if we still have those
[LAUGHTER]
LAUGHTER
I am afraid of giving you the wrong answer, because I don't
I am afraid of giving you the wrong answer because I don't
have everything in my head--
have everything in my head-
No one's going to check-- no one.
No one's going to check- no one
[LAUGHTER]
LAUGHTER
These people, they literally have the game
These people they literally have the game
on while this is going.
on while this is going
The most important thing to say
The most important thing to say
is that the cases have been decided
is that the cases have been decided
overwhelmingly in President Trump's favor so far.
overwhelmingly in President Trump's favor so far
But aren't-- isn't it time we understand
But aren't- isn't it time we understand
that the Court is now an explicit political tool?
that the Court is now an explicit political tool
Weren't we being naive-- when you have Leonard Leo,
Weren't we being naive- when you have Leonard Leo
in the Federalist Society, literally growing justices
in the Federalist Society literally growing justices
in pods in a lab somewhere and spending
in pods in a lab somewhere and spending
millions and billions of dollars-- shouldn't we now--
millions and billions of dollars- shouldn't we now-
shouldn't we be aware of that?
shouldn't we be aware of that
So this is one of the questions we're
So this is one of the questions we're
trying to answer at The Times.
trying to answer at The Times
So what we've done is we've assembled a new team.
So what we've done is we've assembled a new team
There are five of us working on Supreme Court reporting now.
There are five of us working on Supreme Court reporting now
And I think there was often an assumption in the past
And I think there was often an assumption in the past
that we could write about the decisions,
that we could write about the decisions
we could write about the oral arguments,
we could write about the oral arguments
but we couldn't get behind the scenes
but we couldn't get behind the scenes
to see how power is really being exercised.
to see how power is really being exercised
But listen, journalists scrutinize power.
But listen journalists scrutinize power
It's what we do.
It's what we do
And we can't have a Supreme Court-sized exception
And we can't have a Supreme Court-sized exception
in our compact with the public.
in our compact with the public
So in stories like this, in other stories,
So in stories like this in other stories
we have been able to get behind the scenes,
we have been able to get behind the scenes
because there are so many questions about the court
because there are so many questions about the court
that we don't have answers to.
that we don't have answers to
The place is a locked box.
The place is a locked box
How partisan are the justices?
How partisan are the justices
Your great question.
Your great question
How do people age in these jobs?
How do people age in these jobs
What does it mean to hold power with no accountability
What does it mean to hold power with no accountability
for 20 or 30 years at a time?
for 20 or 30 years at a time
What's under the robe.
What's under the robe
Who--
Who-
[LAUGHTER]
LAUGHTER
Who's trying to influence--
Who's trying to influence-
who's trying to influence the justices?
who's trying to influence the justices
And so slowly, these are the questions
And so slowly these are the questions
that our whole reporting team at The Times
that our whole reporting team at The Times
is starting to answer.
is starting to answer
As you start to peel back that that onion a little bit,
As you start to peel back that that onion a little bit
is there a danger that we will suffer
is there a danger that we will suffer
from a nostalgia of past courts,
from a nostalgia of past courts
that they operated in a way that had more integrity or
that they operated in a way that had more integrity or
less power politics or, you know, not as personal,
less power politics or you know not as personal
in terms of the animus or different things
in terms of the animus or different things
that are going on?
that are going on
Because we view those courts nostalgically to some respects,
Because we view those courts nostalgically to some respects
especially, like, the Warren court.
especially like the Warren court
It's such a great question.
It's such a great question
Courts have always been political.
Courts have always been political
[LAUGHTER]
LAUGHTER
I mean, look, like, the justices are
I mean look like the justices are
appointed by the presidents.
appointed by the presidents
We totally know that.
We totally know that
But the job of a justice or a judge is to transcend, right?
But the job of a justice or a judge is to transcend right
It's to be truly independent.
It's to be truly independent
It's to look at every case.
It's to look at every case
But we know that's bullshit.
But we know that's bullshit
We watched the confirmation hearings.
We watched the confirmation hearings
How many times in the confirmation hearings
How many times in the confirmation hearings
did those guys go, I'm an umpire?
did those guys go I'm an umpire
I just call balls and strikes and stare decisis.
I just call balls and strikes and stare decisis
It's all about precedent.
It's all about precedent
And I would-- and then as soon as they're in--
And I would- and then as soon as they're in-
- But are you saying, Jon-- - Shadow docket!
But are you saying Jon- Shadow docket
But are you--
But are you-
but are you saying-- but do you still
but are you saying- but do you still
believe that it should be the goal of the courts
believe that it should be the goal of the courts
to transcend political bias?
to transcend political bias
Yes.
Yes
So like--
So like-
They should.
They should
Yes.
Yes
Will that put pressure on them to do so,
Will that put pressure on them to do so
or are they ultimately just captured
or are they ultimately just captured
by the same political industry that captures everything else?
by the same political industry that captures everything else
I mean, I'm a reporter because I
I mean I'm a reporter because I
believe that information makes everything essentially better.
believe that information makes everything essentially better
And we're having a lot of debate about this country,
And we're having a lot of debate about this country
about the Supreme Court.
about the Supreme Court
I want us to have the most information possible so
I want us to have the most information possible so
that we can have the healthiest,
that we can have the healthiest
richest, fairest debate about these, like, pretty
richest fairest debate about these like pretty
difficult questions.
difficult questions
I mean, people are talking about packing the court.
I mean people are talking about packing the court
You know, we're the only constitutional democracy
You know we're the only constitutional democracy
without age limits or term limits for--
without age limits or term limits for-
Oh, it's bananas.
Oh it's bananas
--judges And so I think there's going
-judges And so I think there's going
to be a lot of debate about that too, right?
to be a lot of debate about that too right
And so we just-- it's hard to have
And so we just- it's hard to have
a really great debate about a place that is totally secret.
a really great debate about a place that is totally secret
So that is why we are trying to cast some light.
So that is why we are trying to cast some light
I can't even tell you what a beautiful sentiment
I can't even tell you what a beautiful sentiment
I find in that, which is, you're right.
I find in that which is you're right
It may be corrupted, and it may be operating
It may be corrupted and it may be operating
on a partisan principle.
on a partisan principle
But isn't the idea to get us more and more
But isn't the idea to get us more and more
information because that's the only way to improve it?
information because that's the only way to improve it
Sometimes that's lost in the shouting and the clicking and
Sometimes that's lost in the shouting and the clicking and
all those different things.
all those different things
I think that's exactly the sentiment that we've forgotten.
I think that's exactly the sentiment that we've forgotten
Well, thank you
Well thank you
Yeah.
Yeah
It's excellent.
It's excellent
And then you wrote another book.
And then you wrote another book
And I didn't get to that one.
And I didn't get to that one
[LAUGHTER]
LAUGHTER
It's for your kids so you--
It's for your kids so you-
- This is for my kids? - --might want to take a look.
This is for my kids -might want to take a look
Yeah. - It better be a picture book.
Yeah It better be a picture book
[LAUGHTER]
LAUGHTER
And it better be about looksmaxxing.
And it better be about looksmaxxing
[LAUGHTER]
LAUGHTER
This was advice you gave to college graduates, who
This was advice you gave to college graduates who
are-- it was a-- you're giving a speech
are- it was a- you're giving a speech
at Columbia about graduates.
at Columbia about graduates
And this was kind of the advice you were handing off.
And this was kind of the advice you were handing off
Well, it was a crazy situation.
Well it was a crazy situation
Remember, like, the chaos at Columbia?
Remember like the chaos at Columbia
JON STEWART: I'm familiar.
JON STEWART: I'm familiar
So in the middle of it.
So in the middle of it
I get an email from them saying,
I get an email from them saying
will you give the undergraduate commencement speech?
will you give the undergraduate commencement speech
And it's like an honor, but also kind of a bad
And it's like an honor but also kind of a bad
offer right?
offer right
And so my friends from college--
And so my friends from college-
We're going out of business.
We're going out of business
[LAUGHTER]
LAUGHTER
And we were wondering--
And we were wondering-
So my college friends are like, don't do it.
So my college friends are like don't do it
Call in sick.
Call in sick
Like, you're going to get booed.
Like you're going to get booed
And I was like, give me those kids for 15 minutes.
And I was like give me those kids for 15 minutes
Because I was so upset as a reporter, as a mom,
Because I was so upset as a reporter as a mom
as a citizen, like, seeing this place that
as a citizen like seeing this place that
stands for enlightenment and discussion just
stands for enlightenment and discussion just
descend into total toxicity.
descend into total toxicity
So I was like, OK, I'll do it.
So I was like OK I'll do it
Thank you.
Thank you
I'm honored.
I'm honored
But I need to talk to the students,
But I need to talk to the students
because I got to read this room very carefully.
because I got to read this room very carefully
So I get on a Zoom with the students,
So I get on a Zoom with the students
and they ask me a great question.
and they ask me a great question
They say, we chose you because of your career.
They say we chose you because of your career
And we want to know, how, in this crazy environment,
And we want to know how in this crazy environment
are we supposed to find and start our life's work?
are we supposed to find and start our life's work
And I was like, this is awesome because that is such a hard--
And I was like this is awesome because that is such a hard-
it's, like, such a good question.
it's like such a good question
And I knew--
And I knew-
And this environment is very different.
And this environment is very different
It's not-- no longer bound by the traditional paths.
It's not- no longer bound by the traditional paths
It is-- well, speaking of the word generational,
It is- well speaking of the word generational
this fear is generational.
this fear is generational
I have spoken at campuses all across the country--
I have spoken at campuses all across the country-
the elite universities, the more humble universities.
the elite universities the more humble universities
There are common fears, right?
There are common fears right
But I don't want to spend all our time tonight on the fears
But I don't want to spend all our time tonight on the fears
because, like, we all know what the negatives are.
because like we all know what the negatives are
JON STEWART: Me neither.
JON STEWART: Me neither
The interesting--
The interesting-
I'm not that guy.
I'm not that guy
Do you think I'm that guy?
Do you think I'm that guy
Is that what you're suggesting?
Is that what you're suggesting
I'm not that guy.
I'm not that guy
I heard you say before you were
I heard you say before you were
a little concerned about AI.
a little concerned about AI
But the-- the really interesting
But the- the really interesting
question is, like, what are young people
question is like what are young people
actually supposed to do?
actually supposed to do
Like, what does a positive, productive response
Like what does a positive productive response
look like in this environment?
look like in this environment
So that's what this book is about.
So that's what this book is about
So you can either read the book
So you can either read the book
and get it and find that out.
and get it and find that out
Or you could probably just run the question through ChatGPT,
Or you could probably just run the question through ChatGPT
I would think.
I would think
You know just what to say to an author, Jon Stewart.
You know just what to say to an author Jon Stewart
You're doing unbelievably great work.
You're doing unbelievably great work
Thank you so much.
Thank you so much
I so appreciate you being here.
I so appreciate you being here
How to Start, Discovering Your Life's Work
How to Start Discovering Your Life's Work
is available right now.
is available right now
Jodi Kantor.
Jodi Kantor

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