Overview of The Political Scene from The New Yorker
This episode — hosted by Susan Glasser, with Evan Osnos and Jane Mayer — features Georgetown Law professor Stephen Vladeck (author of the Substack "One First") and examines the Supreme Court’s recent tariff ruling, the court’s broader behavior over the last year, and the growing prominence of the “shadow docket” (emergency/summary orders). Vladeck argues the tariff decision was important but overhyped, and he places it in the wider context of many recent rulings that have expanded executive power and shifted how the Court operates.
Key takeaways
- The tariff ruling: a significant win against the Trump administration on that specific statutory question, but not evidence of a broad, sustained break with the administration’s Court-friendly trend.
- “Everyone is overreacting”: one correct decision (the tariff case) should not obscure many other decisions that have empowered the executive.
- Shadow docket dominance: emergency applications and summary orders now occupy a central role — often with brief briefing, no oral argument, and minimal explanation — and have been the vehicle for many consequential rulings.
- Conservative bloc dynamics: there are fault lines among the six conservative appointees. Chief Justice Roberts and Justice Barrett often form the court’s center; Justices Thomas and Alito are reliably pro‑administration; Gorsuch and Kavanaugh jockey for the middle.
- Election and institutional risk: the Court worries about potential presidential defiance, and Vladeck is concerned about a sustained campaign to delegitimize federal courts — a political environment that could make defiance more plausible than in past crises (e.g., Nixon/Watergate).
The tariff ruling — what it means (and what it doesn’t)
- Vladeck’s position: the decision was correct and important on its facts, but it’s a single data point.
- Context: since President Trump’s return to office, the Court has issued dozens of rulings (Vladeck cites about 32 decisions in ~13 months involving the administration) that have, in his view, enabled broad executive actions.
- Major questions doctrine: the tariff case revived discussion of statutory interpretation and the major-questions approach, but Vladeck favors Justice Kagan’s statutory-construction framing in this instance.
- Bottom line: expect the tariff ruling to be a “speed bump,” not a sustained reining‑in of executive power unless it is followed by a pattern of similar rulings.
The shadow docket / emergency docket — why it matters
- Definition: emergency relief (stays, injunctions, summary orders) the Court issues quickly — often with little briefing or explanation — to change the status quo during litigation.
- Growth and impact:
- Vladeck traces the expansion over the last decade, starting with high-profile stays such as the Clean Power Plan.
- The merits docket (full briefing, argument, long opinions) has shrunk to its lowest level since the 19th century.
- Emergency relief has become numerically and substantively central: in one recent term the Court granted emergency relief 31 times and issued 31 non‑unanimous merits rulings.
- Consequence: important policy disputes are decided, or effectively decided, on the shadow docket with limited transparency and precedent-building explanation.
Internal dynamics of the Court and ideological splits
- General pattern:
- Thomas and Alito: most consistently pro‑administration.
- Roberts and Barrett: more likely to join liberal justices on emergency applications; act as a centrist axis.
- Gorsuch and Kavanaugh: swing positions in the middle of the conservative bloc; sometimes side with Roberts/Barrett, sometimes with Thomas/Alito.
- Political consistency concerns: some justices (Vladeck highlights Thomas and Alito) appear to reach or accept arguments inconsistently depending on whether the administration is Republican or Democratic.
- The practical counting-to-five: for progressives, the most reliable core of dissent/defense is often the three liberal justices + Roberts + Barrett.
Election‑related risks and presidential defiance
- Emergency docket and elections: the shadow docket is already used for election‑adjacent disputes; Vladeck worries about its use in highly time‑sensitive electoral controversies.
- Lines the Court might not cross: Vladeck believes the Court would likely push back against an explicit, unprecedented seizure of electoral processes, though not necessarily unanimously.
- Concern about delegitimization: the administration’s public attacks on judges and efforts to portray courts as political actors may reduce the political cost of defying a court order — a major institutional risk.
- Historical contrast: Nixon complied with the Court in the tapes case because political pressure made defiance untenable; the current political environment might not create the same constraints.
Upcoming cases and personnel issues to watch
- High‑profile cases on the docket Vladeck highlights:
- Trump v. Slaughter (named in the episode): whether statutes insulating executive officers from political control are unconstitutional — Vladeck expects a likely 6–3 win for Trump.
- A narrower removal/firing case (Lisa Cook): expected loss for the administration due to facts.
- Birthright citizenship: Vladeck expects the administration to lose.
- Continued shadow-docket activity: numerous emergency applications (Vladeck noted this was the administration’s 33rd) will continue to test the Court’s approach.
- Retirement chatter:
- Justice Alito: more likely retirement speculation due to timing (book release, political calculations about Senate control); potential replacements fall into two buckets — conventional conservative appellate nominees or more overtly “Trumpy” picks (e.g., judges aligned with Trump’s style).
- Justice Thomas: less likely to retire soon (public statements and possible desire for longevity record).
Notable quotes and pithy insights
- “Everyone is overreacting.” — Vladeck’s central framing about the tariff ruling versus the broader pattern.
- “Don’t lose the forest for one tree.” — caution against over-attributing a single favorable decision to a sustained shift.
- The Court has been “enabling… even bigger and more problematic lawlessness by this executive branch.” — Vladeck on the cumulative effect of recent rulings.
- The shadow docket has become “equivalent” in consequence to the merits docket in many terms.
Actionable items / recommendations
- Follow expert coverage: Stephen Vladeck’s Substack “One First” for ongoing, accessible analysis of the Court.
- Watch both dockets: don’t equate a few headline merits rulings with the Court’s full impact — track shadow-docket emergency orders closely.
- Civic attention: monitor political attacks on courts and institutional responses (congressional and public) — preserving the Court’s legitimacy matters for whether rulings are enforced.
- If you cover or study the Court: prioritize transparency and explanation around emergency orders; the public conversation should push for clearer reasoning and standards.
Where to learn more
- Stephen Vladeck, One First (Substack) — expert newsletter on the Supreme Court.
- The New Yorker’s The Political Scene podcast — this episode for the full discussion and nuance on the points summarized above.