[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]




                                                              
                  THE SUPREME COURT'S SHADOW DOCKET

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                      THURSDAY, FEBRUARY 18, 2021

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                            Serial No. 117-5

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         Printed for the use of the Committee on the Judiciary
         
         
         
         
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        


               Available via: http://judiciary.house.gov
               
               
               
               

                   THE SUPREME COURT'S SHADOW DOCKET




                                


 
                   THE SUPREME COURT'S SHADOW DOCKET

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      THURSDAY, FEBRUARY 18, 2021

                               __________

                            Serial No. 117-5

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
 
  
               Available via: http://judiciary.house.gov
               
               
               
                        ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
45-453               WASHINGTON : 2022 
               
               
               
               
               
               
                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

             HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                  MONDAIRE JONES, New York, Vice-Chair

THEODORE E. DEUTCH, Florida          DARRELL ISSA, California, Ranking 
HAKEEM JEFFRIES, New York                Member
TED LIEU, California                 STEVE CHABOT, Ohio
GREG STANTON, Arizona                LOUIS GOHMERT,
ZOE LOFGREN, California              MATT GAETZ, Florida
STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
KAREN BASS, California               TOM TIFFANY, Wisconsin
ERIC SWALWELL, California            THOMAS MASSIE, Kentucky
MONDAIRE JONES, New York             DAN BISHOP, North Carolina
DEBORAH ROSS, North Carolina         MICHELLE FISCHBACH, Michigan
JOE NEGUSE, Colorado                 SCOTT FITZGERALD, Wisconsin
                                     CLIFF BENTZ, Oregon

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                     
                            C O N T E N T S

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                      Thursday, February 18, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     1
The Honorable Darrell Issa, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California..................................................     3
  Prepared Statement.............................................   212

                               WITNESSES

Mr. Stephen I. Vladeck, Charles Alan Wright in Federal Courts, 
  University of Texas School of Law Washington
  Oral Testimony.................................................   217
  Prepared Statement.............................................   220
Mr. Amir H. Ali, Deputy Director, Supreme Court and Appellate 
  Program, MacArthur Justice Center
  Oral Testimony.................................................   240
  Prepared Statement.............................................   242
Mr. Michael T. Morley, Assistant Professor, Florida State 
  University College of Law
  Oral Testimony.................................................   249
  Prepared Statement.............................................   251
The Honorable Loren L. AliKhan, Solictor General, The District of 
  Columbia
  Oral Testimony.................................................   259
  Prepared Statement.............................................   261

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Darrell Issa, Ranking Member 
  of the Subcommittee on Courts, Intellectual Property, and the 
  Internet from the State of California for the record
  An article entitled, "Congressional Intent and the Shadow 
    Docket," Harvard Law Review Blog.............................     6
  An article entitled, ``Disaggregating Nationwide Injunctions,'' 
    Alabama Law Review...........................................     9
  An article entitled, ``Disaggregating the History of Nationwide 
    Injunctions: A Response to Professor Sohoni,'' Alabama Law 
    Review.......................................................    74
  An article entitled, ``Nationwide Injunctions, Rule 23(B)(2), 
    and the Remedial Powers of the Lower Courts,'' Boston 
    University Law Review........................................    94
  A white paper entitled, ``De Facto Class Actions? Plaintiff- 
    and Defendant-Oriented Injunctions in Voting Rights, Election 
    Law, and Other Constitutional Cases,'' Barry University 
    School of Law................................................   137

                                APPENDIX

Remarks of Chief Justice William H. Rehnquist, American Law 
  Institute Annual Meeting, May 15, 2000, submitted by Mr. Gabe 
  Roth, Executive Director, Fix the Court for the record.........   300
An article entitled, ``Judicial Ethics and Supreme Court 
  Exceptionalism,'' American University Washington College of 
  Law, submitted by Professor Amanda Frost for the record........   303
An article entitled, ``Keeping up Appearances: A Process-Oriented 
  Approach to Judicial Recusal,'' American University Washington 
  College of Law, submitted by Professor Amanda Frost for the 
  record.........................................................   353
A report entitled, ``Judicial Recusal Procedures--A Report on the 
  IAALS Convening,'' IAALS, submitted by Mr. Russell Wheeler.....   417
Materials submitted for the record by the Honorable Henry C. 
  ``Hank'' Johnson, Jr., Chair of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  Georgia for the record
  A syllabus of Williams v. Pennsylvania, Supreme Court of the 
    United States................................................   456
  An opinion of the Court of Williams v. Pennsylvania, Supreme 
    Court of the United States...................................   459
  A dissenting opinion of Williams v. Pennsylvania, the Honorable 
    John G. Roberts, Chief Justice, Supreme Court of the United 
    States.......................................................   473


                   THE SUPREME COURT'S SHADOW DOCKET

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                      Thursday, February 18, 2021

                     U.S. House of Representatives

                   Subcommittee on Crime, Terrorism,

                         and Homeland Security

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 2:05 p.m., via 
Webex, Hon. Henry Johnson [Chair of the Subcommittee] 
presiding.
    Present: Representatives Johnson of Georgia, Lieu, Stanton, 
Lofgren, Cohen, Jones, Ross, Issa, Chabot, Gohmert, Johnson of 
Louisiana, Massie, Bishop, Fischbach, Fitzgerald, and Bentz.
    Staff Present: John Doty, Senior Advisor; Madeline 
Strasser, Chief Clerk; Jordan Dashow, Professional Staff 
Member; John Williams, Parliamentarian; Jamie Simpson, Chief 
Counsel, Subcommittee on Courts; Danielle Johnson, Counsel, 
Subcommittee on Courts; Matt Robinson, Counsel, Subcommittee on 
Courts; MaryBeth Walker, Detailee, Subcommittee on Courts; 
Rosalind Jackson, Professional Staff Member, Subcommittee on 
Courts; Katy Rother, Minority Deputy General Counsel and 
Parliamentarian; Ken David, Minority Counsel; and Kiley 
Bidelman, Minority Clerk.
    Mr. Johnson of Georgia. Hello, everyone.
    The Subcommittee will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Subcommittee at any time.
    Welcome to this morning's hearing on the Supreme Court's 
shadow docket.
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today. If you would like to submit materials, please 
send them to the email address that has been previously 
distributed to your offices, and we will circulate the 
materials to Members and staff as quickly as we can.
    I will now recognize myself for an opening statement.
    Welcome to this Subcommittee's first hearing of the 117th 
Congress, on the topic of the Supreme Court's shadow docket.
    The Supreme Court is one of the Nation's most vital 
institutions. Its decisions have consequences that are wide-
ranging and far-reaching, and the public's ability to learn how 
and why those decisions were made is critical to maintaining 
open justice.
    This transparency is a foundational element of the Supreme 
Court's integrity. For many of the Court's notable cases, we 
know how the majority reached its decision, we know which 
Justices agree or disagree with the majority's opinion and why, 
and we have detailed briefings from the litigants and third 
parties about their views. Importantly, in most instances, this 
process gives the public months to scrutinize and understand 
the significant issues at bar and their potential impact.
    Yet not all the Court's work takes place so openly. There 
exists a segment of decisions on what is unofficially called 
the shadow docket. Coined by Professor William Baude in 2015, 
the shadow docket comprises emergency orders and summary 
decisions not found on the Court's main docket.
    Here, the Justices make their decisions based on shorter-
than-usual briefs, without oral arguments, and under a tight 
timeline. The Justices are also not required to publicly record 
which way they have voted, and, as a result, the public has 
little or no insight into the Court's decisionmaking.
    Despite the brevity of the Court's consideration of cases 
on the shadow docket, the stakes are still high, sometimes a 
matter of life and death. Over the last year alone, decisions 
on the shadow docket have effectively ended the 2020 Census 
count, cleared the way for the first Federal executions in 17 
years, and have covered some of the last Administration's most 
controversial policies, such as the border wall, the travel 
ban, abortion, and transgender rights. Matters relating to or 
impacted by the COVID-19 pandemic are also on the shadow 
docket, including State election laws and State rules limiting 
attendance at places of worship.
    The shadow docket has expanded in recent years. We can 
point to a few reasons why. Among them, a large share of 
emergency requests during the Trump Administration were at the 
request of the Federal Government. Such requests are not 
unprecedented, but the increase in volume certainly is. Under 
the Trump Administration, the Solicitor General sought five 
times the number of such emergency or extraordinary petitions 
than the George W. Bush and Obama Administrations combined.
    The divisiveness of these decisions seems to have risen in 
tandem. An increasing number of emergency orders on the shadow 
docket are decided by a narrow five-four margin, often along 
ideological lines.
    The onslaught of these important decisions has prompted 
concerns over the Supreme Court's transparency as well as the 
executive branch's role in shaping the Supreme Court's agenda 
through the shadow docket.
    We are not here to doubt the Justices' hard work, but for 
justice to be fair, justice must be open. The Court's recent 
shadow docket decisions demonstrate that, at a minimum, more 
transparency is needed. Knowing why the Justices selected 
certain cases, how each of them voted, and their reasoning is 
indispensable to the public's trust in the Court's integrity.
    Today's hearing marks the first time that Congress has 
explored the shadow docket in depth. As scholars and 
practitioners before the Court, each of today's Witnesses 
brings important insight into what the shadow docket has 
become, its impact on the law and on the American people, and 
what could or should be done. I look forward to an informative 
and productive dialogue.
    It is now my pleasure to recognize the Ranking Member of 
the Subcommittee, the gentleman from California, Mr. Issa, for 
his opening statement.
    Mr. Issa. Thank you, Mr. Chair. Thank you for holding this 
very timely and important hearing today.
    At this time, I would like to ask unanimous consent to 
enter into the record a number of articles from one of our 
Witnesses, Professor Morley, so they can be circulated to the 
staff before his testimony.
    Mr. Johnson of Georgia. Without objection, so ordered.
    [The information follows:]



      

                        MR. ISSA FOR THE RECORD

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    Mr. Issa. Also, at this time I would like to ask unanimous 
consent that a Member of the Full Committee but not a Member of 
the Subcommittee, Congresswoman Spartz, be allowed to attend 
and, time permitting, if there is a yielding from another 
Member, be able to ask a question.
    Mr. Johnson of Georgia. Without objection, so ordered.
    Mr. Issa. Thank you, Mr. Chair.
    Mr. Chair, as often occurs in this Committee and in this 
Subcommittee, we have both sharp disagreement between the 
various Members here on the dais and a great deal of agreement. 
Much of what you just said in your opening statement would be 
paired perfectly with my views, but there are some items that I 
think are critical that we ensure, as we see what is wrong with 
the shadow docket, that we also appreciate what is right.
    Many would say that a last-minute decision by the Court not 
to stay the execution of a prisoner is inherently wrong. 
However, the alternative could easily be a simple refusal to 
grant cert, therefore condemning the prisoner without even one 
last look.
    When we consider, over the years, the Court's very 
important decisions that they have taken on when and how you 
can execute a convicted person who has been sentenced to death, 
in fact, it is those very novel last-minute calls, such as 
somebody's diminished capacity and the like, that have come to 
pass. So, I think it is critical that we do make sure that we 
continue to have the Justices feel that they can take far more 
than the 70 cases they take on their formal docket.
    Notwithstanding that, I share with your considerable 
concern that during the last Administration this fivefold, as 
you said, increase occurred.
    I would say that one of the things that I hope we explore 
in detail today is the question of whether or not the problem 
is at the High Court or even at the Solicitor General but, 
rather, at the fair interpretation of what an article III judge 
in a district is entitled to rule. None of us here today would 
doubt that a Federal judge, as to the case before him and the 
plaintiffs before him, has authority to enjoin in every part in 
the United States, including its territories, within his 
jurisdiction.
    The question really is, in many cases, does he have a right 
to enjoin the Administration for their conduct related to 
anyone not currently a plaintiff in front of the Court? This is 
a question that I believe the Supreme Court must answer. If 
they fail to answer or perhaps if the answer is incomplete, it 
falls to this Committee and to this Subcommittee to look at a 
restatement or a reform of the breadth of these types of 
decisions.
    I, for one, believe that we do have an opportunity to work 
together on a bipartisan basis over the next 2 years to craft 
good and understandable decisions. I think particularly since 
the Administration has recently changed and, in fact, control 
of the Congress has changed, we could contrast how we felt 
during the Trump Administration, when they repeatedly went to 
the High Court, versus the possibility that, in the weeks to 
come, one or more judges around the country might, in fact, 
enjoin the Administration in a very similar but reverse role 
and they may be running to the Court. If that is the case, if, 
in fact, this very large increase in the load by the Court 
continues but in a reverse role, then I think there could be no 
choice but either the Court to Act or us to act.
    Further, I believe that in the case of many of the 
decisions that are now popping up, such as almost every death 
penalty case having an 11th-hour novel review, that there needs 
to be a greater level of certainty as to when and how a 
pleading can go so that, in fact, we reduce the load to the 
Court.
    Lastly, I believe that one of your points that is most 
valid is that, although it is unlikely for us to get an 
expeditious improvement in the transparency of the Court, that 
we have the ability to both ask for, study, and, if necessary, 
require that in the period after a decision but in the 
clearness of those days or weeks to follow that we have a more 
full and complete reporting.
    I believe we have an opportunity as a Committee to look 
into a number of bipartisan, mutually selected examples and 
write the Court and ask them to give us, in those specific 
cases that are of public interest, a more complete answer, 
including the process for the voting, who voted, and 
particularly some of the underlying elements.
    If we choose cases wisely, I believe we then begin to have 
the building blocks for what we would ask for and expect in 
postmortem of these last-minute and often, as is often said, 
dead-of-night decisions.
    So, Mr. Chair, I would ask unanimous consent that the rest 
of my opening statement be placed into the record and that we 
be able to get to our Witnesses.
    Thank you, Mr. Chair.
    [The statement of Mr. Issa follows:]



      

                        MR. ISSA FOR THE RECORD

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    Mr. Johnson of Georgia. Thank you, Mr. Issa.
    I now recognize the distinguished Ranking Member of the 
Full Committee, the gentleman from Ohio, Mr. Jordan, for his 
opening statement. I might add, without objection, the 
remainder of your statement will be entered into the record.
    With that, Mr. Jordan.
    Mr. Jordan, are you with us and are you unmuted?
    Apparently, Mr. Jordan is not on the line.
    So, at this point, I will proceed to the introduction of 
the panel of Witnesses.
    Our first Witness is Professor Steven Vladeck, who holds 
the Charles Alan Wright Chair in Federal Courts at the 
University of Texas School of Law. He has argued before the 
U.S. Supreme Court, the Texas Supreme Court, and lower civilian 
and military courts.
    In addition to teaching, Professor Vladeck is an elected 
member of the American Law Institute, a distinguished scholar 
at the Robert S. Strauss Center for International Security and 
Law, a senior editor of the peer-reviewed Journal of National 
Security Law and Policy, and a Supreme Court fellow at The 
Constitution Project. He is also the co-host of ``The National 
Security Law Podcast,'' a CNN Supreme Court analyst, and is the 
executive editor of the ``Just Security'' blog and a senior 
editor of the ``Lawfare'' blog.
    Professor Vladeck received his B.A. from Amherst College 
and his J.D. from Yale Law School.
    Welcome, Professor Vladeck.
    Next I would like to introduce Mr. Amir Ali, who is a civil 
rights lawyer who litigates issues of national importance in 
Federal courts across the country, including the U.S. Supreme 
Court. He is Director of the Washington, DC, office of the 
MacArthur Justice Center, a premier national civil rights law 
firm, and Deputy Director of the organization's Supreme Court 
and Appellate Program.
    Mr. Ali also teaches at Harvard Law School, where he 
directs the law school's Criminal Justice Appellate Clinic. Mr. 
Ali has successfully argued multiple cases in the U.S. Supreme 
Court and has represented several people under death sentences 
before the U.S. Supreme Court.
    Mr. Ali received his B.S. in software engineering from the 
University of Waterloo and his J.D. from Harvard Law School.
    I would like to extend a warm welcome to Mr. Ali.
    Professor Michael Morley joined Florida State University 
College of Law in 2018, where he teaches and writes in the 
areas of election law, constitutional law, remedies, and the 
Federal courts. Before joining FSU Law, Professor Morley was a 
Climenko fellow and lecturer in law at Harvard Law School.
    Prior to his experience in academia, he served in 
government as Special Assistant to the General Counsel of the 
Army at the Pentagon, as well as a law clerk on the U.S. Court 
of Appeals for the 11th Circuit. He also worked as an associate 
at Williams & Connolly, LLP, and the Supreme Court and 
Appellate Group at Winston & Strawn, LLP, both in Washington, 
DC.
    Professor Morley earned his J.D. from Yale Law School in 
2003.
    Welcome, Professor Morley.
    Solicitor General Loren AliKhan is the solicitor general of 
the District of Columbia. She oversees administrative, civil, 
and criminal appeals in the D.C. Court of Appeals, the U.S. 
Court of Appeals for the D.C. Circuit, and the U.S. Supreme 
Court.
    Prior to this, Solicitor General AliKhan focused on Supreme 
Court and appellate litigation at the law firm O'Melveny & 
Myers. She also served as a Bristow fellow in the Office of the 
Solicitor General at the U.S. Department of Justice and was a 
Temple Bar scholar in London, England, where she worked with 
the Deputy President of the Supreme Court of the United 
Kingdom.
    Solicitor General AliKhan clerked for the U.S. Court of 
Appeals for the Third Circuit and for the U.S. District Court 
for the Eastern District of Pennsylvania. She earned her 
bachelor's degree from Bard College at Simon's Rock and her 
J.D. from Georgetown University Law School.
    Welcome, Solicitor General AliKhan.
    Before proceeding with testimony, I hereby remind the 
Witnesses that all of your written and oral statements made to 
the Subcommittee in connection with this hearing are subject to 
18 U.S.C. 1001.
    Please note that your written statements will be entered 
into the record in its entirety, and I ask you to summarize 
your testimony in 5 minutes. To help you stay within that 
timeframe, there is a timing light in WebEx. When the light 
switches from green to yellow, you will have 1 minute to 
conclude your testimony, and when the light turns to red, it 
signals that your 5 minutes have expired.
    Professor Vladeck, you may now begin.

                STATEMENT OF STEPHEN I. VLADECK

    Mr. Vladeck. Thank you, Mr. Chair, Ranking Member Issa, 
distinguished Members of the Subcommittee.
    Although the shadow docket has existed for as long as there 
has been a Supreme Court, there is no disputing that it has 
grown in prominence in the last 4 years, not because the total 
number of these orders has increased, but because the Court is 
acting far more aggressively in these cases than in the past, 
including in staying lower court injunctions of State and 
Federal Government action; in lifting stays of executions that 
lower courts have imposed, which is quite distinct, of course, 
from refusing to grant a stay of execution; and in directly 
enjoining State officials in cases in which multiple lower 
courts have already refused to do so.
    As I explain in my written testimony, the Trump 
Administration helped to precipitate some of this uptick, but 
the shadow docket is about much more than just the Federal 
Government, and, even in Federal cases, it has been about much 
more than nationwide injunctions. In the last 2 weeks alone, we 
have seen four major shadow docket rulings: Three blocked State 
COVID-related restrictions; one refused to vacate a lower court 
injunction blocking an Alabama execution. None involved the 
Federal Government.
    Not only are the Justices using the shadow docket to change 
the status quo with far greater frequency but, as Chair Johnson 
noted, they are publicly divided on these cases far more 
sharply than before. During the October 2017 term, Justice 
Kennedy's last, only two shadow docket orders provoked four 
public dissents. Over the next two terms, there were 20. During 
the October 2019 term alone, there were almost as many public 
five-to-four shadow docket rulings, 11, as there were five-four 
merits rulings, 12.
    Why has this happened? So, I think it is a long story, and 
I try to tell some of it in my written statement. No single 
development adequately explains it, including the rise of 
nationwide injunctions. Rather, I think it stems from a 
confluence of factors, including the Supreme Court's changing 
composition and the ascendancy of an idiosyncratic view about 
when emergency relief is appropriate. Indeed, it is no 
coincidence, in my view, that the brakes have truly come off 
since the retirement of Justice Kennedy and the death of 
Justice Ginsburg.
    Nor can it be denied that this uptick has had enormous 
real-world consequences. Mr. Ali and Solicitor General AliKhan 
are both going to speak to some of the many ways in which these 
rulings have affected individual Americans and government-wide 
policymaking. Even for those who think the Court has 
nevertheless reached the right results in these cases, there 
are still numerous respects in which we should find this uptick 
troubling.
    First, having more and more of the Court's significant 
decisions handed down through unseen, unsigned, and unexplained 
orders raise serious legitimacy questions since such rulings 
bear none of the hallmarks of principled judicial decision 
making.
    Second, they leave lower courts and government officials to 
speculate and, as we have seen increasingly, disagree as to 
what the law actually is going forward.
    Third, they invert the ordinary flow of litigation, leaving 
the Court to prematurely, if not unnecessarily, resolve serious 
constitutional questions based upon undeveloped or, at the very 
least, underdeveloped factual records.
    Fourth, they increasingly appear to be coming at the 
expense of the merits docket, where the Court decided the 
fewest merits cases last term since the Civil War and is on 
pace to decide the second fewest since the Civil War this term.
    Obviously, the best solution would come from the Justices 
themselves, pushing more of these issues to the merits docket, 
providing more explanation for those major disputes that must 
be resolved through orders. I don't disagree that there will 
always be at least some need for a shadow docket, but not all 
these cases really are emergencies. If we take, for example, 
the Court's most recent order in the California cases, that 
order came late on a Friday night, 6 days after the briefing 
had been complete. The Court has expedited merits cases in less 
time in its history.
    In any event, Congress is hardly powerless. Although I am 
wary of efforts to prevent the Court from using the shadow 
docket, both for normative reasons and, in the extreme, for 
constitutional ones, I believe that there is a productive 
conversation to be had about how Congress might take pressure 
off the shadow docket. I suggest some possibilities in my 
written statement.
    Of course, my list is hardly exhaustive. Smarter people 
will have better ideas. The far more important point is that 
the shadow docket is something to which we should all be paying 
more attention. If nothing else, then, today's hearing is a 
welcome step in that direction.
    Thank you for the opportunity to testify, and I look 
forward to your questions.
    [The statement of Mr. Vladeck follows:]
    
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    Mr. Johnson of Georgia. Thank you for your testimony, 
Professor Vladeck.
    Mr. Ali, the floor is yours for 5 minutes.

                    STATEMENT OF AMIR H. ALI

    Mr. Ali. Thank you, Mr. Chair, Ranking Member Issa, Members 
of the Subcommittee. Thank you for inviting me to testify 
today.
    The very description of what we are talking about, the 
``shadow docket,'' makes clear that it does not usually get 
public attention, and I applaud the Subcommittee for exploring 
it today.
    I plan to focus my testimony on one of the most frequently 
recurring issues on the shadow docket, the execution of human 
being by the state. This is the most solemn Act our legal 
system authorizes.
    Mr. Vladeck explained how the shadow docket resolves issues 
on undeveloped facts and uncertain law. Those features are at 
their most disturbing when we are talking about executions. 
When it comes to ending someone's life, there is no do-over.
    Mr. Vladeck described the legitimacy problem of a judicial 
system that operates on unsigned and unexplained orders. When 
the matter is life or death, the need to ensure transparency 
and public confidence in our legal system is at its apex. Yet, 
presently, the Supreme Court decides weighty execution issues 
in the middle of the night, often upon hours or even just 
minutes of having the briefing.
    In the most disturbing of these cases, the Supreme Court 
allows executions to go forward without explanation after a 
lower court, which has had substantially more time to consider 
the evidence and arguments, has concluded that the impending 
execution likely violates the Constitution and laws of our 
country.
    I think it is important to pause for a second and think 
about that. When the Supreme Court reverses, without any 
explanation, a person is executed even though the only analysis 
we have on the public record says the execution would violate 
the Constitution.
    Let me give a clear example of the shadow docket's 
arbitrary treatment of this ultimate punishment. It involves a 
story about three men--a Muslim, a Buddhist, and a Christian. 
Each of these men sought the very same thing: To die with a 
religious advisor of their own faith by their side to guide 
them through the final moments of their life.
    When Domineque Hakim Marcelle Ray, a devout Muslim, asked 
for an imam by his side, he was told no. No imams, but he could 
have a Christian chaplain in the execution chamber.
    A lower court stayed Mr. Ray's execution. It found he had a 
powerful claim under the Establishment Clause, which prevents 
the government from preferring certain religions over others. 
The court also found that he brought this claim as quickly as 
he possibly could have.
    In an unsigned order, the Supreme Court reversed. It did 
not address the lower court's conclusions, and Mr. Ray was 
executed that night without any spiritual advisor to pray with 
him.
    One month later, Patrick Henry Murphy, a Buddhist man, 
asked for a Buddhist priest by his side. Like Mr. Ray, he was 
told no. He could only have an advisor from religions that the 
State had chosen.
    This time, the Supreme Court reached the opposite 
conclusion. In an unsigned, two-sentence order, it stopped Mr. 
Murphy's execution. The one Justice who provided an explanation 
said it would have been okay to deny a Buddhist priest as long 
as the prison denied Christian advisors as well.
    Fast-forward to just last week: Willie B. Smith, a 
Christian man who requested a pastor in the execution chamber. 
In response, the State took the Supreme Court's latest advice: 
No spiritual advisors of any kind.
    Once again, the Supreme Court shifts course. In another 
unsigned order, without legal analysis, the Court stopped Mr. 
Smith's execution unless he was provided with a Christian 
pastor in the chamber.
    This unexplained disparity is dangerous. Consider the 
potentially devastating public impression of our justice 
system. The Muslim prisoner? He may be executed without an 
advisor. The Buddhist man? Well, his advisor can't be 
selectively excluded like the Muslim person's but may be taken 
away if done right. When the Christian man comes to court, 
well, his right to have a pastor present, that can't be taken 
away.
    My point today is not that that is how the Supreme Court 
viewed these cases. I don't think it viewed the cases in such 
terms at the time. My point is that the use of the shadow 
docket means we have no idea what justified the disparate 
treatment of these men. When the difference is life or death, 
even the appearance of arbitrary decisionmaking risks the very 
legitimacy of our legal system.
    Thank you, and I look forward to your questions.
    [The statement of Mr. Ali follows:]
    
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    Mr. Johnson of Georgia. Thank you, Mr. Ali.
    Next, we will go to Mr. Morley.
    Mr. Morley, 5 minutes. The floor is yours.

                 STATEMENT OF MICHAEL T. MORLEY

    Mr. Morley. Thank you very much.
    Mr. Chair, Ranking Member Issa, Members of the 
Subcommittee, thank you for this opportunity to testify. It is 
a privilege to have this chance to speak with you again.
    Today's hearing is on the Supreme Court's shadow docket. It 
is a term that sounds mysterious and foreboding. In fact, it is 
simply a term that a law professor coined a few years ago, as 
the Chair mentioned, for the Supreme Court's orders list. All 
the documents, briefs, and orders on the orders list are a 
matter of public record and accessible through the Supreme 
Court's website.
    One shortcoming of the orders list is that the Court 
sometimes does not reveal how particular Justices voted on a 
matter.
    Certain aspects of the shadow docket have received 
increased attention in recent years, particularly stays of 
lower court injunctions and other rulings which prevent Federal 
district courts' orders from taking immediate effect; writs of 
mandamus to lower courts ordering them to perform certain 
actions; and grants of certiorari before judgment, in which the 
Supreme Court agrees to hear the case before the court of 
appeals has had the opportunity to Rule on the matter.
    I would like to offer a few reflections on these 
developments.
    First, lower courts' greater use of so-called nationwide 
injunctions has been at least one contributing factor to the 
growth of the shadow docket. Professor Vladeck's Harvard Law 
Review article reveals that, as of January 2017, about half of 
the Supreme Court stays and two-thirds of its grants of 
certiorari before judgment as of that time arose from cases 
involving nationwide injunctions.
    I would implore this Committee to abandon the term 
``nationwide injunction'' as it is very misleading in trying to 
consider this issue, since the main concern with these orders 
is not their geographic applicability. Instead, we should focus 
on the distinction between plaintiff-oriented injunctions and 
defendant-oriented injunctions.
    A plaintiff-oriented injunction is appropriately tailored 
to redressing the harm suffered by the plaintiffs before the 
court in a particular case. A defendant-oriented injunction, in 
contrast, is an order that unnecessarily goes further, 
enforcing the rights of third-party nonlitigants throughout the 
Nation and potentially even the world who are not before the 
court.
    When a Federal court issues a nationwide defendant-oriented 
injunction, it completely disables the defendant agency or 
officials from enforcing the challenged legal provisions 
against anyone anywhere, including people in other 
jurisdictions whose claims would otherwise be adjudicated by 
the law of other circuits.
    Because such orders can impact agency operations throughout 
the Nation, suspend programs the government believes further 
important interests, and affect potentially millions of right 
holders, the court has a tremendous impetus to respond to such 
sweeping relief with extraordinary measures like stays or 
certiorari before judgment.
    I have written extensively about many of the concerns 
defendant-oriented injunctions raise. Among them, they raise 
serious justiciability concerns under article III. They raise 
concerns under Rule 23 in effectively giving class-wide relief 
without a plaintiff class certified. They have unfairly 
asymmetric preclusion effects. They magnify the effects of 
forum shopping. They are in tension with the hierarchical, 
decentralized structure of the Federal Judiciary as well as the 
Supreme Court's own ruling in United States v. Mendoza that the 
government should be permitted to relitigate public law issues 
rather than being bound by the first adverse district court 
ruling.
    One way to limit the growth of the shadow docket would be 
restricting nationwide defendant-oriented injunctions.
    Secondly, the legislative history underlying the Supreme 
Court's current jurisdictional provisions confirms that 
Congress intended immediate Supreme Court review to be 
available when Federal district courts struck down important 
Federal laws as unconstitutional.
    Throughout much of the 20th century, constitutional cases 
were adjudicated by three-judge Federal district court panels. 
Their rulings could be appealed as of right directly to the 
U.S. Supreme Court.
    In 1988, when Congress completed the lengthy process of 
amending these jurisdictional provisions to shift most 
constitutional cases back to the ordinary appellate process, 
this Committee issued a report, the Judiciary Committee issued 
a report, emphasizing that these amendments, quote, ``increased 
the importance of certiorari before judgment,'' quote, ``as a 
means of securing an expeditious and definitive resolution of 
statutory unconstitutionality by the Supreme Court.''
    The Committee report concluded that ``the Judiciary 
Committee contemplates that the Court will give appropriate 
weight to the elimination of direct review when deciding 
whether to grant certiorari before judgment where a lower court 
has invalidated a Federal law.'' So, at least in that respect, 
the Court is acting consistently with congressional intent.
    Thank you very much.
    [The statement of Mr. Morley follows:]
    
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    Mr. Johnson of Georgia. Thank you, Professor Morley.
    Next, we will go to Solicitor General AliKhan for 5 
minutes.
    Ms. AliKhan?

          STATEMENT OF THE HONORABLE LOREN L. ALIKHAN

    Ms. AliKhan. Chair Johnson, Ranking Member Issa, and 
distinguished Members of the Subcommittee, thank you for the 
opportunity to appear before you today.
    As the solicitor general for the District of Columbia, I 
have experienced firsthand the increasing frequency with which 
the Supreme Court disposes of contentious or novel legal issues 
on the shadow docket. These orders, which address issues of 
paramount public importance, including immigration, the 
election, the death penalty, and more, have enormous 
consequences well beyond the litigants involved.
    For example, despite being styled as interim decisions, 
several shadow docket orders effectively decided the rules, 
procedures, and deadlines that would apply for votes cast in 
the 2020 election. In one unsigned, two-paragraph decision 
issued less than a month before election day, the Supreme Court 
reinstated South Carolina's requirement that mail-in ballots be 
signed in the presence of another individual, despite the need 
for social distancing in light of COVID. In another, the Court 
reinstated Alabama's ban on curbside voting. Because of the 
timing, these rulings were effectively the last word on the 
matter.
    With the increase in important and controversial orders on 
the shadow docket, we are seeing two patterns that deviate from 
the Court's merits cases.
    First, high-profile shadow docket decisions split along the 
Court's perceived partisan lines at a much higher rate than 
merits cases.
    Second, shadow docket decisions often lack majority 
reasoning, full opinions, and a record of the Justices' 
individual votes. Indeed, many of the shadow docket orders 
contain no more than one paragraph explaining the disposition, 
meaning that the public knows very little about what the Court 
was thinking and why.
    As a general matter, the public overwhelmingly respects the 
Court's pronouncements as authoritative, a triumph largely 
attributable to the Court's strict adherence to a procedural 
framework that ensures transparency and consistency across 
cases. The defining feature of the shadow docket is that it 
lacks these procedures, and this carries several risks.
    First, the shadow docket presents challenging conditions 
under which to make major decisions. Lawyers produce their best 
work when they have opportunities to perform research, consider 
facts and arguments, and consult colleagues. Supreme Court 
advocates and even Supreme Court Justices are no exception. The 
accelerated pace of the shadow docket means that the Court 
confronts novel, controversial issues with diminished 
deliberative tools and far fewer viewpoints.
    When ruling on an emergency request, the Court may lack a 
developed record, confront claims unconstrained by the 
narrowing process of certiorari, or face arguments that lack 
full consideration through the recent opinions of multiple 
appellate courts.
    There is also no opportunity for oral arguments, which 
deprives the Justices of the opportunity to clarify the scope 
of claims, the practical consequences of a particular result, 
and the specifics of the record.
    Of particular importance to institutional litigants like 
the District of Columbia, there are also diminished 
opportunities for the Court to hear the views of amici curiae, 
which can situate a dispute in its wider legal and 
sociopolitical context.
    The shadow docket also limits the ability of the Members of 
the Court to formerly deliberate. Last April, for example, the 
Court ruled five to four to stay an execution--to vacate a stay 
of execution. In a sharply worded dissent, Justice Breyer 
revealed that he had asked his colleagues to wait until the 
next morning so that they could discuss the case at their 
conference. Instead, the Court vacated the stay overnight, and 
the execution occurred before the Justices could meet to 
discuss.
    Second, shadow docket orders provide little information on 
how or why the Court reached a result. In particular, we do not 
always know how the Justices voted. Indeed, just last week, a 
mystery Justice joined Justices Breyer, Sotomayor, Kagan, and 
Barrett to halt an execution.
    Even when the vote tally is clear, shadow docket orders 
often contain little explanation of why issues of principle 
dictate the results.
    The inscrutability of the shadow docket orders creates 
significant practical hurdles. While the precedential weight of 
these orders is disputed, when the Supreme Court speaks, legal 
institutions and stakeholders listen. Lower courts work hard to 
faithfully apply the Supreme Court's instructions, but, with 
limited guidance, they can struggle to divine workable rules 
from the Court's minimal reasoning. This lack of clarity from 
the Supreme Court is problematic for States and regulated 
parties that strive to accurately implement the Court's 
directives.
    The Court's consideration of pandemic restrictions is one 
example. Recently, the Court issued a fractured shadow docket 
decision striking down California's prohibition on indoor 
worship but allowing certain capacity restrictions. The order 
provides no consensus on what animated the Court's conclusion 
and, as Justice Kagan noted in dissent, provided no guidance to 
other jurisdictions confronting the same issue.
    I want to close by emphasizing a high-level but I think 
important point. Issues with the shadow docket are related to 
the Court's appellate jurisdiction, meaning its supervisory 
function over the lower courts. As article III confirms, 
Congress has the authority to superintend the Supreme Court's 
exercise of appellate jurisdiction and regulate lower courts. 
Congress has done so before, both altering cases the Supreme 
Court reviews, such as capital cases, and the standards lower 
courts must apply when issuing certain relief, like in the 
Prison Litigation Reform Act. Accordingly, there is a path for 
legislation if Congress deems it appropriate.
    Thank you for the opportunity, and I look forward to your 
questions.
    [The statement of Ms. AliKhan follows:]
    
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    Mr. Johnson of Georgia. Thank you, Solicitor General 
AliKhan.
    I will now proceed under the 5-minute Rule with questions, 
and I will begin by recognizing myself.
    Professor Vladeck, you mention in your testimony that there 
is a traditional four-factor test that the Court has 
historically applied in deciding to grant emergency relief.
    How has the Court's application of this test shifted in 
recent years? What impact has that had on the types of 
emergency relief the Court has decided to grant?
    Mr. Vladeck. It is a great question, Mr. Chair.
    The traditional four factors, just real quickly, are: 
First, the likelihood that the Supreme Court would grant 
certiorari when the case came before it on a proper appeal; 
second, that the Court would actually side with the applying 
party on the merits, the likelihood of success on the merits; 
third, that the appealing party would suffer irreparable harm 
without emergency relief pending their appeal; and, fourth, 
that the balance of the equities weighs in favor of such 
relief, that there wouldn't be an even greater harm worked on 
other parties, even nonparties, by providing the relief being 
sought.
    Mr. Chair, the Supreme Court hasn't acknowledged any shift 
in those four factors, but I do think we have seen the second 
factor become overly dominant, where the Justices are almost 
exclusively focused on the merits.
    A very good example of this--Solicitor General AliKhan 
referred to the California COVID decision from 2 weeks ago, 
what I think is colloquially known as ``South Bay II.'' In that 
decision, there are multiple opinions, concurring and 
dissenting, in the injunction the Court issues, none of which 
speak about the factors, none of which actually talk about 
whether there was, in fact, a likelihood of granting cert, 
whether there was irreparable harm to the applicants from 
California's restrictions if they were allowed to remain in 
place, or the balancing of the equities, the potential 
downsides of enjoining California's indoor worship restrictions 
for the duration of the appeal.
    Mr. Chair, I think it is the disappearance of that 
consideration, the disappearance of the balance of the 
equities, that has really turned these cases into just merits 
decisions coming at an incredibly premature stage, where none 
of the other conventional equitable concerns--about the impact 
on other parties, about irreparable harm--are really playing 
the role that they have historically.
    That is the shift I think we have seen. The best evidence 
of it is in individual opinions by individual Justices, most 
prominently the Chief Justice's in-chambers opinion in a case 
called Maryland v. King in 2012.
    Mr. Johnson of Georgia. Thank you.
    Solicitor General AliKhan, in your written testimony, you 
mention that the shadow docket and the Court's lack of clarity 
have been problematic for jurisdictions like the District of 
Columbia that are striving to implement the Court's COVID-19 
directives.
    Can you elaborate on the unclear guidance that has come 
from the Court and how that has impacted the District of 
Columbia and other jurisdictions?
    Ms. AliKhan. Absolutely.
    Jurisdictions like the District of Columbia want to make 
sure that they are adhering to the Court's pronouncements, but 
there is some real controversial as to whether these shadow 
docket rulings have precedential effect and, if so, which ones 
do.
    At the same time, when the Supreme Court has invalidated a 
similar provision, even if it is in a situation that is not 
precedential, you pay attention.
    So, if you don't have the reasoning behind the decision--
for example, in the South Bay II case, we don't have a sense of 
why the ban itself for areas that had the highest COVID 
transmission rates was not allowed but why certain capacity 
restrictions would be allowed. So, if we were to approach these 
restrictions on worship in light of COVID in areas that were 
particularly ravaged, we would have a very hard time 
understanding, you know, could we ban it in certain 
circumstances? What could appropriate capacity restrictions be?
    Because we don't have any consensus on those issues from 
the Court, it really leaves us at a guessing game of what was 
animating their decision and how it would apply to us.
    Mr. Johnson of Georgia. Thank you.
    Mr. Ali, in your testimony, you write that a person may be 
executed even though the only reasoned judicial decision on the 
books tells us that there was a serious likelihood the 
execution violates the laws of our country. In a matter of life 
and death, that is a particularly astounding consequence.
    You have proposed a narrow fix that would import a standard 
of review for such cases. Can you elaborate on this proposed 
standard? Explain how things may have turned out differently 
for some of the cases you have described had there been such a 
standard.
    If you can do so within about 30 seconds, I would 
appreciate it.
    Mr. Ali. Yes, and hopefully I can revisit it again.
    I think that there is an easy solution here that is 
something that Congress does routinely, which is provide 
standards for courts to apply.
    The example I give in my written testimony is in the 
statute AEDPA governing decisions made by State courts. It is 
in title 28 of the U.S. Code, 2254(d), and it attaches great 
deference to those decisions.
    In this instance, where we have courts finding errors, 
finding problems with the legality of an impending execution, 
similar deferential standards of review ought to be in place 
here. I think this should be seen as taking pressure off the 
Court, helping the Court avoid the public confidence issues 
that I spoke about earlier.
    Mr. Johnson of Georgia. Thank you.
    With that, I will now call upon the Ranking Member, Mr. 
Issa, for 5 minutes of questions.
    Mr. Issa. Thank you, Mr. Chair.
    I didn't plan on asking this question, but I think it needs 
to be asked. So, I am a Californian. I will start with 
Professor Morley.
    In the case of a decision in California by Governor Newsom 
that, as an executive, shutting down churches outright while 
leaving, for example, pot dispensaries and a host of other 
retail facilities open, including restaurants for much of that 
time, do you feel that the solicitor general's theory that 
there is no guidance when they ruled that essentially you could 
limit the capacity based on a similarity of restaurants and so 
on, but you couldn't outright ban First amendment rights to 
religion.
    Mr. Morley. So, there are two ways of thinking about how 
judicial opinions make law.
    The first is the top-down approach, where the Supreme Court 
articulates rules and principles and guidelines and, just based 
on a particular case, tries to anticipate future potential 
cases, and craft a Rule that is responsive to that so that 
future parties facing comparable situations know exactly what 
to do.
    A different approach is more of a common-law approach, 
where the Court just looks at a particular situation before it, 
says, ``Yes, this is good,'' ``No, this is bad,'' doesn't try 
to articulate broad, sweeping principles.
    One reason for that would be judicial modesty, judicial 
uncertainty, that if there is a situation where the Court 
thinks it might be a fast-fact-changing situation, where, in 
the case of COVID, for example, developments with either the 
new medications or the spread of vaccines, either positive or 
negative developments, might materially change the facts on the 
ground, the Court doesn't want to be laying out, like, hard and 
fast principles for then future courts to stick to.
    Rather, by taking situations on a case-by-case basis and 
just having particular situations that it upholds, particular 
situations that it enjoins, litigants can then look at that in 
a more common-law fashion and States like California can look 
at those rulings in a more common-law fashion and try and 
conform their conduct.
    So, it is really a matter of the Court potentially trying 
to minimize judicial error by having as narrow of a ruling as 
possible. The narrowest ruling on a particular set of facts, of 
course, is simply just affirming or reversing.
    Mr. Issa. Sure. Yeah. Well, and it seemed to be pretty 
clear to me that the Governor was simply wrong.
    In your testimony, I think you made a very strong point--I 
would like to have you elaborate on it--at least as to what are 
called nationwide injunctions.
    If, in fact, this body, the House of Representatives, were 
to either restate or clarify or the High Court were to clarify 
that a judge's jurisdiction is only as to the plaintiffs in 
front of them, recognizing that a class would be different than 
an individual, would this mitigate a great many or at least 
some of those cases that went to the High Court because they 
effectively shut down the entire United States as to the 
Administration?
    Mr. Morley. Yes, Mr. Ranking Member. One portion of the 
shadow docket--and, again, it is certainly not the whole thing, 
but one of the contributing factors of the shadow docket is the 
increasing use of what are so-called nationwide injunctions or, 
as I think the focus, focusing more on the right issue, 
defending-oriented injunctions.
    So, if district courts were to limit their relief just to 
the particular plaintiffs before them, if they didn't purport 
to enjoin Federal statutes, regulations, executive orders for 
litigants throughout the entire Nation, or third-party 
nonlitigants, I should say, throughout the entire Nation, there 
would be far less of a need for the Supreme Court to 
immediately hear a case. There would be far less of a need for 
the Supreme Court to step in with these extraordinary emergency 
types of relief that we see through the shadow docket.
    Mr. Issa. Lastly--am I out of time, Mr. Chair? I still have 
time.
    Lastly, historically, this body, the Congress, created the 
Fed Circuit in no small matter because the U.S. Supreme Court 
was swamped, as where the circuit court of appeals were swamped 
with reversals of patent cases and found themselves without the 
unique expertise.
    Do you believe that the Congress and this Subcommittee 
particularly should begin looking at specialized appellate 
systems for many of these problems? I will just quickly say 
death penalty cases and nationwide injunctions as just two of 
them.
    Mr. Morley. That would certainly be one potential response. 
If you have a single court, such as the U.S. Court of Appeals 
for the Federal Circuit, that has nationwide jurisdiction over 
issues, the scope of injunctions would become fair less 
salient, because its rulings would have national effect as a 
matter of stare decisis.
    There are certainly drawbacks to having such nationwide 
specialized courts as well that I would be happy to--I see my 
time has elapsed--but I would be happy to discuss later.
    Mr. Issa. Lastly, for all the Witnesses--
    Mr. Johnson of Georgia. His time has elapsed, but proceed, 
Mr. Issa.
    Mr. Issa. Thank you. I will be very brief.
    Mr. Johnson of Georgia. You are about 1 minute over, 1 
minute and 10 seconds.
    Mr. Issa. Thank you, Mr. Chair.
    Briefly, would you all agree that, if all the cases handled 
by the shadow docket were to be taken up by the High Court, the 
High Court would not be able to handle that many cases, and, 
therefore, we do have to either maintain the shadow docket or 
find some way for a deliberative body to consider more of these 
cases?
    Mr. Morley. Congressman Issa, I will just say really 
quickly, I don't think that is true if you consider the 
relevant set--not every order the Supreme Court issues but the 
categories we are talking about.
    The Supreme Court heard 53 arguments last year. As recently 
as 15 years ago, they were hearing well over 100. So, the 
notion that the Court is appropriately hearing 53 merits cases 
and can't handle 85 or 90 is belied even by recent history.
    Mr. Issa. Thank you, Mr. Chair.
    Mr. Johnson of Georgia. The gentleman is welcome.
    Next, we will proceed to the gentleman from Arizona, Mr. 
Stanton, for 5 minutes.
    Mr. Stanton. Thank you very much, Mr. Chair.
    Over the last 2 years, we have increasingly seen in our 
country a tale of two Supreme Courts--one that we are all 
familiar with, one in which oral arguments are made before the 
Justices, one in which parties who have an interest in the case 
can make their case heard too, and one in which the rational 
for the Court's decision sees the light of day.
    Another one has emerged in recent years. It is one where 
decisions with sweeping implications are made in the dark, in 
the shadows, with rationale and legal reasoning hidden from the 
public.
    The so-called shadow docket was created for emergency 
situations, where a party had to show irreparable harm to skip 
the line and forego the traditional path to the U.S. Supreme 
Court. That is why it has been so often used to handle death 
penalty cases. Now it is used much more broadly, used 
strategically by litigants of a certain ideology who didn't 
like or agree with a district court decision to skip the 
appellate courts and go straight to a more sympathetic Supreme 
Court.
    Lower court decisions on election integrity, for example, 
are undermined by the Supreme Court without a hearing and 
without any rationale shared with the American people. That is 
not how it is supposed to work.
    Why is this such an important issue? Because the Supreme 
Court plays an essential role in our constitutional system of 
government as part of our system of checks and balances. When 
the Court does not provide any rationale, any explanation for 
its decision, does not record its vote, does not allow for the 
affected parties to make their case, it is the Court that is 
going unchecked, and the American people are left to question 
what is happening behind closed doors.
    Concerns have been raised that the Supreme Court, through 
the shadow docket, sometimes seems to ignore its own professed 
standards of giving deference to district court findings in 
reaching its decisions.
    Professor Vladeck, do you agree with this? If so, what 
justifies second-guessing the trier of fact like this?
    Mr. Vladeck. Yeah, Congressman, I think it is a fair point 
in some of the cases we have seen. This is going to be, a 
broken record that you are going to hear from some of the 
Witnesses today. It is hard to make definitive statements about 
why the Court has done things and about specific things the 
Court has done, because we so rarely get signed opinions from 
the Court in this context.
    I think Mr. Ali can speak to some of the death penalty 
cases, where there were factual findings by district courts 
that were not credited or were at least just sort of completely 
ignored when the case came to the Supreme Court.
    I will just say, on that front, Congressman, I don't think 
that that problem is limited to the shadow docket. I think we 
have seen the Supreme Court even in merits cases show 
increasingly less respect, whether deserved or not, right, to 
lower courts even in plenary appeals.
    Mr. Stanton. Solicitor General AliKhan or Mr. Ali, what is 
the impact of bypassing the normal standard of deference given 
to the district court factual findings in this manner?
    Mr. Ali. I think that the impact in death penalty cases and 
particularly execution issues is immense for public confidence. 
I can give an example of a recent execution in the case of 
Dustin Higgs. In that case, you had a Maryland district court 
question the very legality of executing Mr. Higgs.
    The Fourth Circuit looked at the issue and said, this is 
actually a difficult issue. We need 12 more days. That is what 
they were asking for, 12 more days, to have an expedited 
argument in which we consider this claim. The Supreme Court 
reached down and stopped the Fourth Circuit from even taking 
those 12 days.
    When we look back at the historical record, I think it is 
going to look like a real stain in terms of public confidence 
in the operation of what is often referred to as the machinery 
of death.
    Mr. Stanton. Professor Vladeck, somebody suggests that 
justices shouldn't be held to the decisions in emergency 
orders, because there wasn't a lot of time to decide and they 
don't have the full benefit of a hearing and they don't give 
their reasoning, so they aren't bound for future cases.
    What do you say in response to that?
    Mr. Vladeck. That is certainly what the Supreme Court has 
said, Congressman. I think the problem--and this goes back to 
the colloquy between Congressman Issa, Mr. Morley, and 
Professor Morley.
    The Supreme Court may have that view about itself. It is 
telling lower courts otherwise. So, the COVID restriction, the 
California indoor worship case that Congressman Issa was 
talking about, 3 days after that decision, the Court issued 
something called a GVR, a grant, vacate, and remand, in a 
different case called Gish v. Newsom, which I cite in my 
written statement, where the Court told the district court to 
go back and try again in light of its decision in the South Bay 
II case. Congressman, its decision in the South Bay II case was 
an unsigned order with no analysis.
    So, it very well may be the case that the Supreme Court 
doesn't feel like anything it says on the shadow docket is 
binding it. It is clearly the case that it views what it is 
saying on the shadow docket or not saying, as the case may be, 
as binding lower courts.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Stanton. Thank you so much, Mr. Chair. I yield back.
    Mr. Johnson of Georgia. Thank you.
    Next, we will hear from the gentleman from Ohio, Mr. 
Chabot, for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chair, for holding this really 
very interesting meeting on this interesting topic.
    Professor Morley, as you know, there are nearly 700 Federal 
district court judges throughout the country and territories, 
any one of whom could issue a nationwide injunction to block 
the executive branch from acting in a certain way. I would note 
that the majority has scheduled a hearing next week, I believe, 
which will presumably make the case for additional lower court 
judges, who could issue even more injunctions against things 
that they disagree with.
    Now, as we know, during the Trump Administration, the 
previous Administration, Federal district courts issued 
nationwide injunctions, for example, stopping construction of 
our southern border wall, stopping efforts to limit travel from 
high-security risk nations into the United States, and 
preventing the Food and Drug Administration from enforcing in-
person dispensing and signature requirements for abortion-
inducing drugs during the coronavirus pandemic.
    In my view, nationwide injunctions place far too much power 
in the hands of a single judge, ultimately allowing that one 
judge to control how the Federal Government will Act towards 
all Americans, not just towards the aggrieved party in a 
particular case or controversy.
    Until the last 50 years or so, it is my understanding that 
these types of injunctions were rarely used, very seldom used. 
In fact, it has only been in the last few years that they have 
been used extensively to really upend the authority of our 
former President.
    This has created a system where politically motivated 
attorneys can essentially forum shop for an activist judge who 
will help them achieve their political goals. It seems highly 
problematic that actions taken by Congress or the President can 
be stymied by a single activist judge, but they certainly are.
    Professor Morley, how significant a problem is this forum 
shopping, and have I essentially set out the situation and the 
problems as many people see them at this point in time?
    Mr. Morley. Yes, Congressman, that is absolutely correct. 
One of the consequences of allowing Federal Courts to issue 
nationwide defendant-oriented injunctions completely barring 
the Federal Government from enforcing the legal provision is 
that, as you explained, it exacerbates the consequences of 
forum shopping, because if a plaintiff goes to an ideologically 
sympathetic judge, that judge's interpretation of the law then 
is given binding force for right holders throughout the entire 
Nation, including in other circuits where other litigants' 
claims would ordinarily be judged and adjudicated under the law 
of those other circuits.
    So, what you systematically see is, depending on the 
ideological balance of the case, right, there are certain 
jurisdictions that conservative plaintiffs will go to when they 
want to seek a nationwide defendant-oriented injunction against 
what they view to be progressive measures. There are certain 
jurisdictions that left-leaning plaintiffs will go to when they 
are seeking a nationwide defendant-oriented injunction against 
what they perceive to be conservative measures. You are having 
constitutional law driven by judges who don't reflect a fair 
cross-section of the Federal judiciary, who deviate 
substantially from the median Federal judge, so to speak.
    In terms of both the choices of cases that wind up being 
brought, the way in which the district court adjudicates those 
cases, the opinions that then are sent up for review, this 
affects not only the practical consequences of the Court's 
ruling, but it has an impact on what the Court is actually 
holding in those opinions.
    So, you are absolutely right, the effects of forum shopping 
go far beyond just impacting a particular case to shaping 
constitutional law for the Nation.
    Mr. Chabot. Thank you. I am about out of time. So, just to 
sum it up, to me--
    Mr. Johnson of Georgia. Thirty seconds left.
    Mr. Chabot. Pardon me?
    Mr. Johnson of Georgia. Thirty seconds.
    Mr. Chabot. Okay. It seems inherently unfair to allow one 
judge in a specific jurisdiction to issue a ruling, which 
essentially binds the entire Nation, when there is a score, a 
huge number of judges in other districts who would come to just 
the opposite point of view. We may have hated that happening in 
the previous Administration. I think the Democrats are going to 
come to hate that in this particular Administration. So, we do 
need to work together in a bipartisan manner to do something 
about this.
    I yield back my time. Thank you.
    Mr. Johnson of Georgia. I thank the gentleman.
    Next, we will go to the gentleman from Hawaii, Mr. Lieu, 
for 5 minutes. Mr. Lieu.
    Mr. Lieu. Thank you, Mr. Chair, for calling this hearing on 
this very important issue.
    The issue today isn't really about how lower courts or 
appellate courts happen to look at injunctions and how the 
Supreme Court looks at injunctions. It is actually about the 
Supreme Court issuing orders in the dark and not even putting 
their names on it.
    So, one of the Witnesses had testified that a mystery 
Justice has signed onto a particular order. Can you just 
explain a little more what happened in that specific issue?
    Ms. AliKhan. Of course. So, that was a situation in which 
there was a decision to stay an execution and four Justices put 
their name on it, but it takes five Justices to Rule on 
something. So, there was clearly someone lurking in the 
background that cast that vote but did not want to be 
accountable for it.
    So, Justice Scalia wrote extensively about why having 
public records of one's votes is very important in the system, 
because it protects--and I talk about this in my written 
testimony--someone from taking one position one day and the 
polar opposite position the next day.
    So, when we don't have visibility and insight into what 
votes the Justices are casting, because they don't have to give 
them to us unless they want to, then we end up with a situation 
where we don't know who the majority of the Court is on any 
particular case.
    Mr. Lieu. Has the Court or any Justices ever offered any 
rationales for why they believe they can sign onto orders 
without disclosing their name?
    Ms. AliKhan. So, I think this gets back to something that 
Professor Vladeck was alluding to, which is on the general 
orders docket, most of the decisions that are made are routine 
docket management questions that don't end up needing to have 
any judge's name on it. Some of them can be disposed of by one 
Justice. Some of them might go to the full court, but they 
don't need to have an opinion, have any explanation.
    So, the problem that we are seeing is that these quasi-
merits cases are now being disposed of on the orders docket. So 
these normal processes with the orders docket of not having a 
name, not having an opinion, not having the full process and 
briefing, are now being used in these cases that should be on a 
merits docket or should at least have more process, including 
having Justices announce what their votes are, having majority 
opinions that provide reasoning and having concurring and 
dissenting opinions as are appropriate.
    Mr. Lieu. Does Congress have the power to write legislation 
requiring Justices to sign their names to quasi-merits orders 
or decisions?
    Ms. AliKhan. I would defer to Professor Vladeck on this 
question.
    Mr. Lieu. Thank you, Ms. AliKhan, for your answers.
    Professor Vladeck?
    Mr. Vladeck. Congressman, I think it is a close question. 
Congress has never tried to before. Even if it might be within 
Congress' raw constitutional power, I am not sure it would have 
the desired result. I mean, there have been proposals for a 
while to have the Court disclose the vote count on grants of 
certiorari or denials of certiorari. I think what the Court 
would do if any proposal was ever enacted into law is have the 
public vote count always be unanimous even if the private vote 
count wasn't.
    The better way to think about reform--and Mr. Ali talked 
about this in his opening statement--is to think about ways of 
taking pressure off the shadow docket. To Solicitor General 
AliKhan's point about how these are quasi-merits adjudications 
try to figure out if there are ways to help the Court actually 
have merits adjudications if these cases really present 
circumstances warranting that kind of dramatic expedition.
    Congressman, we saw that already this term with the 
apportionment case, which the Court got all the way onto its 
merits docket and decided in a signed decision pretty quickly.
    So, I think the reform conversation ought to start with 
ways of taking pressure off the shadow docket before it moves 
to punishing the Justices or prohibiting certain kinds of 
behavior.
    Mr. Lieu. So, thank you.
    Solicitor General AliKhan, back to that issue talking about 
where the mystery Justice signed on. Why is it that we knew the 
names of the other Justices in that particular case?
    Ms. AliKhan. Because they disclosed them. So, in cases 
where they want to write separately, they want to provide even 
if it is one sentence or one paragraph of analysis, the Justice 
that is writing it will announce who they are, and then anyone 
who joins that will add their name to it as well.
    So, in this mystery Justice case, we have someone that 
agreed with the ultimate result, which was to grant the stay, 
but did not subscribe to the opinion or the order that had been 
published in that matter.
    Mr. Lieu. Thank you.
    Then one last question. Professor Vladeck, what if there 
was a congressional law that said, because death penalty cases 
are so important and not reversible if the execution happens, 
that when you have orders in those cases, they have all got to 
disclose who the Justices are?
    Mr. Vladeck. Yeah, and I think that would be a narrow 
approach. Another way I would be thinking about death penalty 
cases, Congressman, is something Mr. Ali alluded to, which is 
perhaps restoring the Supreme Court's mandatory appellate 
jurisdiction in such cases, where it actually has to hear those 
appeals on the merits and, therefore, can't simply dispose of 
them on the shadow docket.
    We already have at least one example of a Federal Court 
that's jurisdiction is otherwise discretionary but must hear 
capital cases. That is the Court of Appeals for the Armed 
Forces. I don't know why we couldn't talk about doing the same 
thing for the U.S. Supreme Court.
    Mr. Lieu. Thank you.
    Mr. Johnson of Georgia. Thank you. The gentleman's time has 
expired.
    Next, we will go to the distinguished gentleman from Texas, 
Mr. Gohmert, for 5 minutes. Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chair. Thanks to our Witnesses.
    I am a big fan of Justices--judges and Justices making 
clear who is making the decision, and I would welcome, you 
know, reforms that required that. Unlike one of our Witnesses, 
I think the Congress does have authority to do such a thing, 
require such a thing, since, as my constitutional law professor 
said many years ago, there is only one Federal Court that is 
mentioned in the Constitution. All others rely on Congress for 
their very existence. We brought them into the world. We can 
take them out. We can create rules that are appropriate for 
them.
    I do take some offense to the term ``shadow docket'' to the 
point that they are not in the shadow. They are legitimate, 
basically should be considered, I think, preliminary judgments.
    I do have, again, the concern. People ought to know who it 
is that is formulating a decision. I have a problem with per 
curiam, en banc as a way to hide who actually wrote a decision. 
I would like to see who wrote those decisions.
    When it comes to this docket that is the subject of the 
hearing today, there are times when particularly the factor 
mentioned regarding irreparable harm requires quick action, and 
there is not time when you have a rogue Federal judge that 
decides to take on and negate all the knowledge and information 
the executive branch and the President have and make his own 
decision.
    Professor Morley, speaking hypothetically, if China were to 
know that it had a potential pandemic disease and it had 
planeloads of people wanting to leave the area that potentially 
had the disease and fly to the United States, and some Federal 
judge says, a President can't have a temporary travel ban, we 
need to welcome those people, I am going to overrule the travel 
ban, not just national effect, but internationally, would that 
kind of situation justify a decision quickly by the quick 
docket of the Supreme Court rather than having a long, drawn-
out process of applying for certiorari?
    Mr. Morley. Yes, Congressman. Under the scenario that you 
laid out there, there would certainly be a very strong argument 
that having a potential pandemic spread, if you know people are 
from a particular area where you have like a highly infectious 
disease being spread, once they are allowed into the country, 
right, once they are allowed into contact with the general 
public, you can't unring that bell, right? Once the virus has 
spread, even if a court later then were to reverse that ruling, 
were to try to undo that ruling, the Court can't order the 
virus out of people's bodies.
    So, yes, that would be exactly the sort of situation where 
the Supreme Court would be likely to find that there was 
irreparable harm, where there would be a balance of hardships 
tilting sharply in the government's favor.
    I should add, that is exactly the sort of situation, I 
would suggest, that the House Judiciary Committee was 
contemplating, where when it shifted constitutional litigation 
away from direct appeals to the Supreme Court and back to the 
usual appellate process that most other cases go through, the 
House Judiciary Committee emphasized that we are not trying to 
stop the Court from getting involved when there is a need to 
directly do so where a Federal law or other Federal measure has 
been enjoined.
    Mr. Gohmert. Thank you. Of course, the unprecedented 
numbers, as has been pointed out, having maybe 27 of these type 
cases in the whole 20th century and 55 just in the first 3 
years of the Trump Administration, is a clear indication 
consistent with the Democrats refusing to acknowledge the 
legitimacy of the 2016 election and the legitimacy of the 
President. It was lawfare on display. It was certainly 
appropriate for the Supreme Court to step in and say, wait, 
this isn't right. I appreciate your time today.
    Thank you. I yield back.
    Mr. Johnson of Georgia. I thank the gentleman.
    Next, we will go to the gentlelady from California, as is 
the gentleman who I misidentified as coming from Hawaii, Mr. 
Lieu. He is from California also.
    I recognize the gentlelady from California, Ms. Lofgren, 
for 5 minutes.
    Ms. Lofgren. Thank you very much, Mr. Chair.
    Although Mr. Gohmert and I don't agree on a lot of things, 
I do actually agree with his observation that calling this the 
shadow docket probably is unnecessarily pejorative, but there 
are still issues that I think are of concern.
    One of the things that struck me is that several of the 
Trump Administration's requests for extraordinary relief really 
relate to disputes about discovery in district courts and, for 
example, litigation over the Census and the DACA cases. Usually 
district courts, when it comes to evidentiary discovery, have 
wide discretion to make decisions, and it struck me as unusual 
or even odd that the Court would intervene at this stage of the 
proceedings.
    I am wondering, Professor Vladeck, were these decisions 
unusual? What are the problems with the highest court getting 
involved in district court cases at this stage of the game?
    Mr. Vladeck. Yes, Congresswoman, I do think they were 
unusual in the sense that one cannot find many prior examples 
of the Supreme Court issuing writs of mandamus in a couple of 
cases or sort of hinting at issuing writs of mandamus, the 
Supreme Court issuing cert before a judgment, the Supreme Court 
blocking an order to take deposition testimony from a Cabinet 
Secretary.
    I think, Congresswoman, there are defenders of the 
Administration who would say that district courts have been 
taking unusual steps in discovery against the government 
witnesses. All I would say in response to that is two things. 
First, I think the government witnesses were behaving 
remarkably deceptively in a couple of those cases. Second, this 
again underscores the point that if the Supreme Court thinks 
lower courts are misapplying the relevant legal standards when 
deciding when they can and can't take discovery of Cabinet 
Secretaries and other senior government officials, it ought to 
say so, and it ought to issue an opinion that says, here are 
the circumstances in which it is appropriate to depose someone 
like Secretary Ross, for example, and here is where it is not, 
as opposed to leaving us to guess when it is appropriate and 
when it is not.
    One last point very quickly, Congresswoman. In the Ross 
example specifically, the Supreme Court went out of its way to 
issue multiple grants of extraordinary relief, to try to get 
the case up very quickly on the question of whether the 
district judge could rely on extra-record evidence. It even set 
that issue for oral argument.
    The district court had never actually relied on extra-
record evidence. Indeed, his final decision was based solely on 
the administrative record. So, it was all for naught, which 
goes again to why this is not just, I think, unhelpful in not 
telling us what is going on, but oftentimes unnecessary in the 
sense that we never get to the actual harm the government was 
claiming.
    Ms. Lofgren. I know that my time is running out, but I 
would just say that, you know, we have concerns about 
transparency, but it really goes to two things. One, the 
credibility of the Court, and it is absolutely important that 
the Court have credibility in the land, and transparency 
relates to that, but also transparency in terms of the 
implementation of decisionmaking. I was interested in the 
Ranking Member's comment about the COVID religion cases.
    I think the Court's decisionmaking there fell so short, 
because it was not clear what they were doing. I will give you 
an example. Right now, in my county, Santa Clara County, there 
were restrictions, but they were not related to the type of 
activity, whether you were a church or a gym or whatever. It 
had to do with occupation standards and air and the like. Yet 
there is ambiguity on whether the Supreme Court really meant to 
exempt religious organizations from rules about COVID that 
related to all organizations.
    So, they have created a mess here in a way, and the mess 
really is serious, because the virus can kill people. I do 
think that their procedures fell far short here.
    I am very interested, Mr. Chair, in what kind of thoughtful 
deliberation we might have to put some guiderails on this so we 
can protect the reputation of the Court and make clear the 
decisionmaking and take action that will require the Court in 
some of these very important cases to have more transparency 
and a more deliberative process than sometimes has been shown, 
causing confusion in the land.
    With that, Mr. Chair, thank you for recognizing me, and I 
would yield back.
    Mr. Johnson of Georgia. I thank the gentlelady. Her point 
is well taken.
    We will now go to the gentleman from Louisiana, Mr. 
Johnson, for 5 minutes.
    Mr. Johnson, you may want to unmute.
    Hearing no response from Mr. Johnson--he may not be on the 
line, I am not looking at the list--we will now go to the 
gentleman or gentlelady from Wisconsin, Mr. or Ms. Tiffany, for 
5 minutes.
    I am sorry, we have not fully met yet.
    It is Mr. Tiffany, but Mr. Tiffany is apparently not on the 
line either. So, we shall next go to the gentleman from 
Kentucky, Mr. Massie, for 5 minutes.
    Mr. Massie. Thank you, Mr. Chair.
    I think that we also would benefit from knowing which 
judges ruled in which way in these cases. Before I jump to that 
conclusion, which seems obvious that we would want that 
transparency, are there any Witnesses who can think of a 
benefit to having the judges be anonymous in these 
extraordinary cases that require them to Rule quickly?
    Ms. AliKhan. Not at all. If it is going to be a merits 
determination, I think that the public needs to know who is in 
the majority and who is not. That is consistent with how they 
normally treat merits cases. It is just the sort of vagary that 
these merits decisions or quasi-merits decisions are being made 
on a docket that is historically used for routine pedestrian 
and procedural orders that we are seeing this problem. I think 
that judges and academics on both sides of the spectrum would 
think that there is a real interest in knowing who is voting 
how.
    Mr. Massie. It seems to me to set up sort of a perverse 
incentive to take these cases on in this setting instead of the 
merit-based track of cases. If they wanted to remain anonymous, 
then there would be more incentive to take the case under this 
situation.
    Also, I don't know if this is practical or not. It would 
also restore the incentive to hear these cases in the right 
sort of setting. Would it make sense, or would it even be 
possible for judges to go back, after quickly ruling, to flesh 
out sort of the opinions? How would Congress go about requiring 
that? We couldn't require a certain number of paragraphs, for 
instance.
    Is there any way that you can imagine, any of the 
Witnesses, frankly, where the judges could still Act quickly, 
but then go back and do the work? It would set up an incentive 
where they are going to have to do just as much work and be 
just as transparent under this quick situation than they would 
under a typical merit-based hearing. Any of the Witnesses are 
welcome to answer that.
    Mr. Vladeck. Congressman, you may be familiar with the 
World War II era case of Ex Parte Quirin. This was the famous 
Nazi saboteurs' case in the U.S. Supreme Court where the 
Supreme Court did exactly that, where it issued a very, very 
short per curiam order allowing the military commission trial 
of the saboteurs to go forward. Then, I think it was about 2 
months later, after six of the eight saboteurs had been 
executed, the Court finally issued an opinion setting forth the 
rationale.
    There is a fairly broad consensus that that was, as Justice 
Scalia put it, not the Court's finest hour, that it is actually 
a problematic setup when the Court is actually writing opinions 
after they have done the thing that matters to try to explain 
why they did the thing in the past.
    I think the far better approach--and this is something you 
are hearing consistently from me and Mr. Ali and Solicitor 
General AliKhan--is to give the Court more of an ability to 
hear these cases on their merits quickly. I mean, we have 
examples. Bush v. Gore, the Court went from granting the case 
to a merit decision in 3 days. The Pentagon Papers case, it was 
a week.
    The Court has the ability to move very quickly even on its 
merits docket; it has just fallen out of practice. I think one 
of the questions is how we can create incentives for the Court 
to return to that.
    Mr. Massie. Right.
    Mr. Ali. Just in the death penalty context, I think it 
would be particularly problematic to have explanations come 
afterwards.
    Mr. Massie. Okay. I didn't think it would work. I just 
wanted to hear your opinion on that.
    Professor Morley, what are the most critical problems that 
you see raised by defendant-oriented nationwide injunctions?
    Mr. Morley. Most basically, there are strong article III 
problems. There is a question as to whether a plaintiff has 
standing to ask a court to invalidate a law or to enjoin a law 
for third-party nonlitigants, where the plaintiff typically has 
standing only to enforce its own rights, only to assert its own 
rights.
    So, under the Court's standing doctrine, there is a strong 
argument, in my view, that the plaintiff doesn't have standing, 
and a court, accordingly, doesn't have jurisdiction to grant 
relief that is unnecessary to redress the harm to that 
plaintiff that is tailored for the benefit of third-party 
nonlitigants.
    As I have mentioned before, we already have a mechanism if 
a plaintiff wants to enforce the rights of third parties, to 
bring them before the Court through the class action device. In 
particular, Rule 23(b)(2) was adopted specifically to allow 
civil rights class actions in order to enforce the rights of 
the broad classes of people.
    Most basically, they are contrary to the structure, the way 
that Congress has chosen to structure the Federal judicial 
system. Under the Evarts Act of 1891, Congress chose to create 
separate circuits with distinct bodies of law. If Congress 
wanted the first judge to Rule on an issue to give that opinion 
the force of law throughout the Nation, Congress could have 
structured the judiciary that way, but it chose not to.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Massie. I thank the Witnesses and yield back.
    Mr. Johnson of Georgia. I thank the gentleman.
    Next, we will hear from the illustrious gentleman from 
Tennessee, Mr. Cohen, for 5 minutes.
    Mr. Cohen. Thank you. I appreciate the illustrious Chair of 
the Subcommittee, Mr. Johnson.
    Professor Vladeck--and maybe one of the other Witnesses 
would be better to ask, I don't know--do you believe that most 
of these decisions are made because of the desire for 
anonymity, the desire for alacrity, or difficulty in the work 
product fitting into the time available to the Court?
    Mr. Vladeck. Congressman, it is a fair question. All I can 
do is speculate, but I think it is probably the last of those 
most of all. I don't think it is the anonymity that is driving 
the bus with regard to the rise of the shadow docket. I think 
it is just a salutary benefit for some of the Justices.
    I think then the question becomes, do we really accept that 
all of these cases present the kind of emergent circumstances 
that require that kind of compressed schedule?
    I will just note, there was a very significant shadow 
docket ruling in mid-January about Mifeprex, about medicinal 
abortions, where the application from the Federal Government 
had been briefed in August and the decision finally comes down 
in January. That doesn't strike me as an emergency, 
Congressman.
    So, one of the questions--one of the things we have seen in 
the last 4 years, there will always be cases that present real 
emergencies that cannot be avoided, but we have seen the sort 
of idea of an emergency slide a bit, where now cases that the 
Court is sitting on for perhaps weeks are still being handled 
through its procedures designed for expediency in circumstances 
where expediency was not necessary.
    Mr. Cohen. So, you said the latter, meaning that they don't 
have enough time to hear the cases. Is that what you think is 
their situation, they are doing this because of a failure of 
the Congress to modernize and reform the Court to give the 
adequate amount of Justices to be able to adequately hear the 
cases?
    Mr. Vladeck. So, I think the size of the Court is probably 
a different conversation for a different time. I do think that 
there is quite a lot of play in the joints of timelines, 
Congressman, in how long parties have to appeal, in how the 
party that won below can slow things down.
    I do think one of the reforms Congress can and should 
consider to take pressure off of the shadow docket would be 
identifying a particular class of cases where those timelines 
ought to be significantly compressed. Those can include cases 
in which State or Federal policies are subject to an injunction 
from a lower court. Those can include capital cases, where the 
parties really do have to move quickly, not necessarily a 
matter of hours, Congressman, but certainly a matter of days 
and weeks, as opposed to the very, I think, generous and 
conservative schedule that applies to most Supreme Court 
appeals.
    Mr. Cohen. Let me ask you this. While you are exactly right 
that this is not necessarily the topic of this discussion and 
it does merit its own hearing, are you familiar with the 
increase in the Court's cases over the last 20, 30 years and 
the limited amount of time they have to give justice to the 
amount of work they have to do?
    Mr. Vladeck. The docket, I actually think the overall 
docket in the Supreme Court has not increased dramatically in 
the last 20 or 30 years. In the lower courts we have seen more 
of that, which I think is also why there is a stronger argument 
for--and this Committee is even considering it--for whether 
there ought to be new lower court judges.
    I will just say, Congressman, to me the problem we are 
seeing in the last 4 years is not a problem of an inadequate 
number of Justices, right? It is a problem of a court for which 
it has become too, in Justice Sotomayor's words, reflexive to 
grant emergency relief in circumstances in which in the past 
the Court would have been far more skeptical.
    Mr. Cohen. Professor AliKhan, do you agree the Supreme 
Court has got enough time, and do you agree the circuit courts 
need maybe to be expanded and reformed to meet the caseload?
    Ms. AliKhan. Yes, I do, Congressman. So, I think Professor 
Vladeck had alluded to this before, but the Court is hearing 
fewer merits cases than ever. So, they could easily translate 
this kind of 20 to 30 odd cases that we are talking about as 
the problematic shadow docket cases onto a merits calendar and 
I think get that worked on pretty quickly.
    As for the lower courts, yes, I think that there is a lot 
of work out there talking about the delays that we are seeing 
in Federal Courts and in Courts of Appeals due to the uptick in 
litigation and a lack of resources.
    So, I do think reprogramming resources to the district 
court or the Courts of Appeals, whether in the form of judges 
or court personnel, like law clerks, would be very helpful.
    Mr. Cohen. Thank you.
    Mr. Ali, do you have an opinion about the courts and the 
need for more to adequately address the justice of the 21st 
century?
    Mr. Ali. Yes. I would say that this actually makes even 
more urgent the conversation we are having today. I come back 
to Representative Lieu's question about deference to fact 
finding.
    Here we have the very busy lower court judges we are 
talking about holding hearings, hearing evidence from Witnesses 
and testimony, issuing opinions and then making fact findings, 
as they are supposed to do. When it gets up to the Supreme 
Court, after all of that work has been done and the actual 
standards are considered in writing, it is swept aside, 
unsigned, and unreasoned opinion. So, I think it just makes the 
whole process all the more offensive.
    Mr. Cohen. I thank each of you.
    I yield back the balance of my time.
    Mr. Johnson of Georgia. I thank the gentleman.
    We will next go to the gentleman from North Carolina, Mr. 
Bishop, for 5 minutes.
    Mr. Bishop. Thank you, Mr. Chair.
    Mr. Vladeck, as I was listening to the testimony and 
questions so far in this pretty enlightening hearing, I want to 
focus on the question of whether or not some might have an 
interest in limiting the ability of the Supreme Court to Act in 
a summary fashion, because that would augment the power of 
lower courts to be a little less supervised.
    So, we have a hierarchical court system. For the Rule of 
law to prevail, lower courts have to acquiesce in what the 
Supreme Court decides, and they have to, it seems to me, be a 
more circumscribed power than that court.
    Mr. Morley in his testimony describes nationwide defendant-
oriented injunctions that exceed lower courts' power and can 
undermine the functioning of the circuit court system. He 
points out the possibility of forum shopping that that could 
give rise to cause district court judges who are more 
ideologically extreme to handle more, a disproportionate number 
of cases.
    It seems to me also that it stands to reason that if 
numerous lower courts could in a sheer volume of cases flout or 
fail to acquiesce to the Supreme Court, they could essentially 
sabotage its supervisory capacity, its supervisory function, 
unless that court could Act in a summary fashion, just by 
bogging it down.
    Also, in the case of the South Bay II case and the other 
religious cases that have arisen, they have arisen, it seems to 
me, to the extent that caused an uptick in the shadow docket, 
as you call it, arisen from an historically unprecedented 
situation of local orders to prohibit millions of people from 
attending church, which is sort of a fundamentally unusual 
situation.
    So, I was looking at the end of your testimony, your 
written testimony, about the things that you might do to take 
the pressure off the shadow docket. It seems to me that those 
treat the symptom of the shadow docket maybe rather than any of 
those causes. Like, you could limit or terminate nationwide 
injunctive power of district court judges. You could implement 
a system to discipline lower court judges who flout or refuse 
to acquiesce in authority from the Supreme Court.
    Particularly, Solicitor General AliKhan spoke about the 
South Carolina case that arose concerning the ballot--the 
absentee ballot deadline. I think it was a violation of 
Purcell, as one example.
    So, all your reforms that you suggested focus on limiting 
the ability of the Supreme Court to do this kind of summary 
activity or shadow docket or orders list activity. I wondered 
what you think of the alternative instead that Professor Morley 
suggests of attacking the problem at its cause, which is 
limiting the sort of emergency problems that spring up from the 
lower court.
    Mr. Vladeck. So, Congressman, with respect, I think perhaps 
I haven't conveyed my proposals accurately in my testimony, 
because I don't think that is a fair summary of them.
    I don't believe I have suggested that we should limit the 
Court's power to issue these decisions. The question is, how 
can we create circumstances where the Court will feel less of 
an obligation to do so.
    Mr. Bishop. What about the other side of it, attacking the 
supply side, if you will, to evaluate whether the problems are 
coming up? What do you think maybe of his thesis, Mr. Morley's 
thesis, about the nationwide or defendant-oriented objections.
    Mr. Vladeck. Congressman, I would like to say just two 
brief things. First, I think, insofar as nationwide injunctions 
or defendant-oriented injunctions are the problem, there are 
other ways to solve them, right? For example, I propose in my 
testimony the possibility of allowing the Federal Government to 
transfer any lawsuit seeking such relief to the D.C. District 
Court, so that the Federal Government has it.
    More broadly, and I think this is the critical point, 
nationwide injunctions are not a majority, and they are not 
even a significant plurality of the source of the shadow docket 
rulings. So, insofar as there is concern about district judges 
running amok, I am not here to defend those district judges.
    I am here to suggest that the problem is not district 
judges with regard to the shadow docket, because, Congressman, 
keep in mind, the only way these cases get to the Supreme Court 
is not just that the district court has ruled in a particular 
way, but that the Court of Appeals has refused to upset that 
ruling. So, now we are not just talking about a single forum 
selected hand-picked district judge. We are talking about an 
entire Court of Appeals not disturbing that decision before it 
gets to the Supreme Court.
    Mr. Bishop. Professor Morley, I have only got about 20 
seconds remaining. Do you have any response to that general 
line of questioning? Just would like to get your thoughts.
    Mr. Morley. Sure. I would just add, one of the reasons why 
I think it is better to focus on defendant-oriented injunctions 
rather than nationwide is because a lot of these orders dealt 
with State laws. So, for the orders that applied to third-party 
nonlitigants across the State rather than the Nation, if you 
are targeting defendant-oriented injunctions, you will pick up 
those as well.
    Mr. Bishop. All right. I yield back.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    At this time, I will call upon the learned gentleman from 
New York, Mr. Jones, for 5 minutes.
    Mr. Jones. Thank you, Mr. Chair. You are too kind.
    I will say that any discussion about the Supreme Court's 
rogue, highly secretive process called the shadow docket, we 
have spent more time, or at least my Republican colleagues 
have, talking about the process by which nationwide injunctions 
are issued. I say this as a former candidate just a few months 
ago who successfully obtained a nationwide injunction that I 
think helped to save our democracy and ensure a free and fair 
election. I successfully, along with co-plaintiffs, obtained an 
injunction to suspend Postmaster General DeJoy's proposed 
operational changes that were meant to undermine that election, 
which was largely facilitated by mail-in ballots.
    In any event, many thanks to all our Witnesses for helping 
to shed light on the Supreme Court's shadow docket. I am 
troubled that the Court decides many of our Nation's most 
consequential cases, from elections to executions, with such 
speed and such secrecy. Many of these shadow docket decisions 
seem to betray our constitutional commitment to due process.
    I especially want to thank the litigators appearing before 
us, Mr. Ali, Solicitor General AliKhan, and, of course, 
Professor Vladeck. As a lawyer, I recognize that it takes great 
courage to question the Court when you may have to argue future 
cases before the Justices.
    Professor Morley, you have written that you see nothing 
partisan in the Trump Administration's unprecedented 
exploitation of the shadow docket and the Supreme Court's 
disproportionate five-four rulings in Trump's favor. The 
partisanship of this far-right court is obvious.
    Take immigration, for example. When President Obama wanted 
to protect immigrants by expanding Deferred Action for 
Childhood Arrivals, DACA, and also creating Deferred Action for 
Parents of Americans, DAPA, the Supreme Court did nothing as 
the lower court stopped him.
    When President Trump wanted to ban Muslims and build a 
wall, the Supreme Court issued special shadow docket decisions 
to let him get away with it.
    Or consider equity for transgender people. When President 
Obama directed public schools to provide equitable 
accommodations for transgender students, the Supreme Court did 
nothing as the lower court stopped him. When President Trump 
wanted to ban transgender people from serving in the military, 
the Supreme Court issued a special shadow docket decision to 
let him get away with it.
    Or think about the right to vote. When President Obama 
asked the Supreme Court to stop Texas from disenfranchising 
voters of color, one of the few times that President Obama even 
asked for emergency relief, the Court let Texas disenfranchise 
those voters anyway. When President Trump's Republican allies 
waged war on our democracy in the midst of a pandemic, the 
Court issued special shadow docket decisions putting voters' 
lives at risk in places like Alabama, Florida, Idaho, Oregon, 
South Carolina, Texas, and twice in Wisconsin.
    So, Professor Morley, do you see any pattern of right-wing 
bias in these shadow docket decisions? A simple yes or no, 
please.
    Mr. Morley. Congressman, that wasn't what I wrote. I was 
referring specifically to the use of certiorari before 
judgment. I said that one tool was consistent with the 
legislative intent embodied in the House Judiciary Committee's 
report. I never made a broad defense of the Trump 
Administration's use of the shadow docket.
    Mr. Jones. I so appreciate that response.
    Professor Vladeck, let me turn to you. As you have 
testified, the Supreme Court issues thousands of shadow docket 
decisions every year, unsigned orders that almost never include 
any reasoning at all. Most often, they are one or two 
sentences.
    You are on Twitter, Mr. Vladeck, so maybe you can help me 
figure this out. To your knowledge, are any Supreme Court 
Justices active on Twitter?
    Mr. Vladeck. Not so far as we know, Congressman, although 
there is a widely circulating rumor that at least one of the 
Justices has a burner account that she uses to follow people 
like us, unfortunately.
    Mr. Jones. Interesting. Are Supreme Court opinions limited 
to 280 characters?
    Mr. Vladeck. No, although sometimes in some of these 
orders, it seems like they are. I think that it seems like it 
is not hard even in a quick-turning case, Congressman, right, 
for the Court to write more than 280 characters.
    The issue is, we are increasingly seeing one, two, and 
three-sentence orders, not just in the thousands of cases that 
no one would raise a stink about, but in cases where the Court 
is actually disrupting the status quo and affecting, for better 
or for worse, thousands of people's lives.
    Mr. Jones. Then, Professor Vladeck, is there any good 
reason the Supreme Court should be deciding matters of life and 
death in anonymous rulings the length of tweets? Donald Trump 
governed by tweet too, but at least he had the decency to use 
his real name on his account.
    Thank you, Mr. Chair. I yield my time.
    Mr. Johnson of Georgia. I thank the gentleman.
    We shall now go to the esteemed gentleman from Wisconsin, 
Mr. Fitzgerald, for 5 minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair. Fascinating 
discussion. I don't have any specific questions right now. So, 
I would just yield back my time to the Ranking Member, if 
needed. Thank you.
    Mr. Issa. I appreciate that.
    Let me briefly follow up and explore a little further with 
Professor Morley and the other Witnesses. You are currently 
having a bit of a debate about the number of merit cases taken. 
What do you think would be the maximum number of these cases 
that could be moved to merit? There has been a lot of 
discussion about--not all of them need to be done immediately 
and so on. I certainly look at the death penalty cases, for 
example, where these pleadings come in the final days or hours 
almost always, and if that one fails, there is usually one 
right behind it.
    Would you really ever be able to put, for example, the 
death penalty reevaluation onto a merit calendar without the 
judges essentially working 24/7?
    Mr. Johnson of Georgia. If I may interrupt, Mr. Issa, would 
you please allow us to see you by camera?
    Mr. Issa. I am so sorry.
    Mr. Johnson of Georgia. That is quite okay. Thank you.
    Mr. Issa. I didn't even realize I was off. I apologize. I 
am so sorry.
    Mr. Johnson of Georgia. Thank you.
    Mr. Morley. So, I think it varies dramatically by the 
nature of the case. Different cases are going to involve 
different types of irreparable harm. Different cases are going 
to be on different timelines.
    With the election-related cases, for example, where the 
Court was dealing with COVID-related changes that had been 
ordered by lower courts, but, obviously, the election was on a 
date certain. So that wasn't something where if the Court 
wanted to get involved or if the Court even just wanted to send 
a signal to lower courts about the types of modifications that 
would or would not be appropriate or the circumstances under 
which modifications would or wouldn't be appropriate, it didn't 
really have the option of waiting for cases to go through the 
ordinary process.
    In terms of a highly expedited procedure of the type, you 
know, some of the Witnesses referred to Bush v. Gore and New 
York Times v. Sullivan, certainly the Supreme Court can do 
that, but there is only a limited number of times in a given 
year you can do that, right? Having intense 18-hour days 7 days 
a week, putting all your attention on one case, you can do that 
occasionally, you can do that periodically, but that can't be 
like part of standard operating procedure. That can't be even, 
I would suggest, a monthly occurrence.
    Mr. Issa. So, it would be fair to say that every litigant 
believes his should be the exception, but not every litigant 
can be pleased?
    Mr. Morley. That is probably true, Congressman.
    Mr. Issa. Okay. Lastly, I want to ask the other Witnesses, 
because it is one of those major questions that won't happen 
overnight.
    Using the Fed Circuit as historic for patents and 
trademarks, patents specifically, and now looking at some of 
these cases, could each of you opine on what cases could be 
either forced to be moved to the district, in other words, 
compelled to be brought in the District of Columbia and taken 
through that process, or ones in which the appellate could be 
to a court of specific jurisdiction, based on the desire for 
them to consider merit without burdening the Court?
    Mr. Vladeck. I will take a stab at both of those. I think 
there would be nothing beyond Congress' power to provide the 
D.C. District Court with either exclusive or concurrent 
jurisdiction in any lawsuit against the Federal Government. So, 
whether you wanted to mandate that those cases go to DC or give 
the Federal Government the choice of litigating them in a 
particular district court or moving them, I think those would 
be within Congress' power.
    I am not, Congressman, a fan of specialized courts. I think 
the Federal Circuit is actually a pretty good example of why 
they don't always work the way Congress intends. The Federal 
Circuit's track record in the Supreme Court as of late has not 
been what anyone would call good. So, I think that specialized 
courts strike me as sort of the wrong solution to the wrong 
problem.
    Mr. Issa. So, coming back very briefly, would it be fair 
then to say that you support the Biden Administration being 
able to, if they are sued based on one of their actions 
somewhere in the country other than the District of Columbia, 
being given the authority to move and have that removed to the 
District of Columbia, thus binding themselves to a national 
decision?
    Mr. Vladeck. Not just the Biden Administration, 
Congressman, I would think consistently across any executive 
branch. That would be--especially if that was an option and not 
a mandate. That would be a way of preserving lots of things we 
could all probably agree on as salutary values.
    Mr. Johnson of Georgia. The gentleman's time has expired.
    Mr. Issa. Thank you. Thank you, Mr. Chair.
    Mr. Johnson of Georgia. I thank the gentleman.
    We will next go to the well-studied gentlelady from North 
Carolina, Ms. Ross, for 5 minutes.
    Ms. Ross. Thank you very much.
    I have a couple of questions on where you seem to be going 
when you are responding to an emergency and how the Court may 
have strayed from what an emergency is, whether there is truly 
irreparable harm going on.
    Could you talk a little bit about whether you think the 
Court has moved too far away from considering something that is 
a true emergency and how it might be better to have categories 
of things that could be decided quickly--obviously, a death 
penalty case would be at the top of the list--versus things 
that should not be allowed to be considered emergencies?
    Mr. Vladeck. Congresswoman, you broke up a little, so I 
assume that question is for me.
    Ms. Ross. Yes. I am sorry.
    Mr. Vladeck. On the emergency part--so there will always 
be--and I hope my colloquy with Congressman Bishop drove this 
home. There will always be cases where the Court has to Act 
exceedingly expeditiously.
    That what we have seen in the last couple of years is more 
and more cases where the Court is sitting on these issues for a 
week or 2 weeks or in the Mifeprex case, 5 months, and still 
issuing a so-called--a ruling that is bound by its emergency 
procedures.
    I am wary of drawing a bright line between what is an 
emergency and what isn't because part of what slows down the 
decision-making process in these cases is that the Justices 
themselves are taking some time to write their opinions.
    I do think that the taking pressure off of the emergency, 
right--the death penalty cases do not have to be 11th hour 
appeals. We can provide more mechanisms for prisoners to bring 
claims perhaps before an execution date is set, right? Just 
ways of sort of making sure, making clear to the Justices that 
they don't need to treat everything as an emergency even if we 
might disagree about where the line is.
    So, that to me is the concern, is that the context has 
clearly expanded. I don't know how we could bring it back by 
drawing a line. The better way to bring it back is just by 
saying, here are contexts where you really don't need to use 
this procedure, you can use your better normal merits 
procedure.
    Ms. Ross. Well, but how would you define those cases? Do 
they have to define them, or could there be examples where this 
should have gone to the merits, this shouldn't have gone to the 
merits, so that there would be guardrails there?
    Mr. Vladeck. Yeah. No, it is a fair question, 
Congresswoman. I don't have a great answer. This is where I 
think I do agree with Professor Morley. The Court really should 
be thinking about certiorari before judgment more often as a 
way of getting merits cases to the Court faster.
    Requiring mandatory direct appeals, Congresswoman, in cases 
in which you have an execution set, in cases in which you have 
a death sentence, Congresswoman, perhaps in cases in which a 
district court has entered some kind of universal or defendant-
oriented injunction and it has been affirmed by the Court of 
Appeals, requiring the Supreme Court to take that quickly.
    One of the ways to do this is to speed up the Court's 
merits docket, which is unquestionably something Congress has 
the power to do.
    Ms. Ross. Okay. Thank you very much.
    My next question is for Solicitor General AliKhan. This is 
about these close cases where the dissent has to write, the 
majority has not.
    Could you tell me how that affects the State of the law, 
whether that dissent seems to have more weight because somebody 
went to the trouble of putting it in there? How would you 
assess whether this should go forward or whether we are really 
just leaving people hanging where we have a dissent, but we 
have no majority opinion?
    Ms. AliKhan. Congresswoman, you cut out a bit, but I 
understand the question to be situations where you have a 
dissenting opinion but not an explanation of the majority. So, 
in those circumstances, you are only relying on the dissent to 
try and read the tea leaves to determine what the majority was 
thinking. So that can be quite problematic.
    So, to go back to the COVID California cases, it could very 
well be that the majority, or the votes that comprise what was 
ultimately the majority were concerned about differences in how 
churches were being treated than from how restaurants were. But 
that doesn't--if they don't say so, how do we know, right?
    So then how does a jurisdiction that might have a full ban 
on any kind of indoor activity because they have very high 
COVID numbers, would they be able to think that there was a 
litigation risk associated with that, and how could they assess 
their need to balance public health against any potential 
litigation?
    So, when you are really just guessing, it makes it very 
hard for lawyers, especially lawyers for State and local 
governments, to do the real risk assessment of what do we do to 
protect public health, at the same time minimizing any risks of 
any kind of litigation.
    Mr. Johnson of Georgia. The gentlelady's time has expired.
    Ms. Ross. Thank you. I yield back.
    Mr. Johnson of Georgia. I thank the gentlelady. Thank you.
    Now we will turn to the accomplished gentleman from Oregon, 
Mr. Bentz, for 5 minutes.
    Mr. Bentz. Thank you, Mr. Chair. An incredibly interesting 
conversation.
    I really don't have any focused questions, but I would like 
Mr. Morley to take an opportunity, if he would like to do so, 
to expand upon his last several answers if he wishes to do so.
    Mr. Morley. Thank you very much, Congressman.
    One of the reasons why, as Professor Vladeck had referred 
to, certiorari before judgment, one of the things that 
distinguishes that from the other aspects of the shadow docket 
is that once the case is before the Court then, now the Court 
has a full-dress hearing, so to speak, right? There is the 
opportunity for merits briefings, the opportunity for amicus 
briefs, oral argument with written opinion, where you know what 
Justices sign onto the majority or the dissent.
    So, it might be worthwhile, unpacking this concept of 
shadow docket to treat certiorari before judgment differently 
from some of the other types of orders that the Court grants. 
Again, as I had alluded to earlier, that is consistent with the 
legislative history underlying the Court's current 
jurisdictional structure.
    The Department of Justice, in lobbying for our current 
jurisdictional statutes, emphasized the ready availability of 
certiorari before judgment in constitutional cases. As I 
mentioned, this Committee emphasized the importance of it. In a 
previous reform in the 1970s, when this then-Congress began the 
process of repealing of the mandatory three-judge court 
requirements, some of the direct appeal as a right 
requirements, the Senate Judiciary Committee similarly pointed 
to the availability of certiorari before judgment.
    One point that I would also bring up as this Committee 
considers possible alternatives, throughout the 20th century, 
we had direct appeal as a right to the Supreme Court throughout 
much of the 20th century in constitutional cases. If a lower 
court, whether it upheld, whether it struck down a State law, a 
Federal law, those cases were appealable directly as a right. 
It was because of concerns about the Court's caseload that 
Congress repealed those jurisdictional grants, shifted 
constitutional litigation to the ordinary appellate docket.
    So, in considering ways of reforming the shadow docket, one 
concern would be to not return to the system that Congress 
itself consciously brought us away from.
    One final point--
    Mr. Johnson of Georgia. Would the gentleman allow me to 
interject? With Mrs. Spartz waiting for someone to yield, would 
the gentleman see fit to yield some moments to the gentlelady, 
Mrs. Spartz?
    Mr. Bentz. Of course. I so yield.
    Mr. Johnson of Georgia. At your discretion, sir.
    Mr. Bentz. Let's--how much time do we have left?
    Mr. Johnson of Georgia. You have about 2--well, let's see--
yeah, about 2 minutes.
    Mr. Bentz. Okay. Let's take another 30 seconds with our 
witness and then go to Mrs. Spartz.
    Mr. Johnson of Georgia. Thank you.
    Mr. Morley. The one final point that I had wanted to 
quickly add is one aspect of defendant-oriented injunctions I 
didn't have a chance to allude to.
    If courts can issue these nationwide defendant-oriented 
injunctions, it doesn't matter how many times the government 
wins. The government can win four cases in a row, nine cases in 
a row. When a plaintiff loses, that doesn't stop other 
plaintiffs from winning the same exact claims.
    Yet all it takes is one person to win anywhere, then, to be 
able to get an order that shuts down the law or the executive 
order across the entire Nation. So, they involve a fundamental 
asymmetry.
    Mr. Bentz. Thank you.
    I yield to Mrs. Spartz.
    Mrs. Spartz. Thank you.
    Thank you, Mr. Chair. I actually don't have any particular 
questions, but it is an interesting discussion, and I learned a 
lot.
    I was actually very surprised with the recent case that 
happened in Pennsylvania relating to election and 
constitutional extension, but that supreme court--actually, our 
supreme court has procedures, so it is a very good process.
    So, I will yield back to Representative Bentz if he has 
specific questions, but this is a wonderful discussion. I 
appreciate it.
    Mr. Johnson of Georgia. Thank you.
    Mr. Bentz. Thank you. I have no further questions. I will 
yield my time back to the chair.
    Mr. Johnson of Georgia. Okay. I thank you both.
    With that, we are at the conclusion of today's hearing. I 
want to thank the panelists for attending and for your 
testimony.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the Witnesses or 
additional materials for the record.
    Mr. Johnson of Georgia. With that, the hearing is 
adjourned. Thank you.
    [Whereupon, at 4:05 p.m., the Subcommittee was adjourned.]



      

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