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THE HOUSE JUDICIARY SUBCOMMITTEE ON COURTS HELD A COMMITTEE ON THE SUPREME COURT'S CASELOAD AND ITS SHADOW DOCKET, EMERGENCY ORDERS AND DECISIONS NOT HEARD IN ORAL ARGUMENT. HANK JOHNSON SHARED THIS HEARING. IT IS TWO HOURS. ...

ORDER. WITHOUT OBJECTION, AUTHORIZED TO DECLARE RECESSES OF THE SUBCOMMITTEE AT ANY TIME. WELCOME TO THIS MORNING'S HEARING ON THE SUPREME COURT SHADOW DOCKET. BEFORE WE BEGIN, I WOULD LIKE TO REMIND MEMBERS THAT WE HAVE ESTABLISHED AN EMAIL ADDRESS AND A DISTRIBUTION LIST DEDICATED TO CIRCULATING EXHIBITS, MOTIONS, OR OTHER MATERIALS 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 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 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 COST INTEGRITY. FOR MANY OF THE COURT'S MOST NOTABLE CASES, WE KNOW HOW THE MAJORITY REACHED THIS DECISION, WHICH JUSTICES AGREE OR DISAGREE WITH MAJORITY OPINION AND WHY, AND WE HAVE DETAILED BRIEFINGS FROM LITIGANTS AND THIRD PARTIES ABOUT THEIR VIEWS. IN MOST INSTANCES, THIS PROCESS GIVES THE PUBLIC MONTHS TO SCRUTINIZE AND UNDERSTAND THE SIGNIFICANT ISSUES AND THEIR POTENTIAL IMPACT. YET, NOT ALL OF THE COURT'S WORK TAKES PLACE OPENLY. THERE EXISTS A SEGMENT OF DECISIONS ON WHAT IS UNOFFICIALLY CALLED THE SHADOW DOCKET. GOING BY PROFESSOR WILLIAM IN 2019, IT COMPRISES EMERGENCY ORDERS AND SUMMARY DECISIONS NOT FOUND ON THE COURT'S MAIN DOCKET. HERE, JUSTICES MAKE DECISIONS BASED ON SHORTER THAN USUAL BRIEFS 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 DECISION MAKING. 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, CLEAR THE WAY FOR THE FIRST FEDERAL EXECUTIONS IN 17 YEARS, AND COVERED SOME OF THE LAST ADMINISTRATION'S MOST CONTROVERSIAL POLICIES, INCLUDING 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, 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 SAW FIVE TIMES THE NUMBER OF EMERGENCY OR EXTRAORDINARY PETITIONS THAN THE GW BUSH AND OBAMA ADMINISTRATIONS COMBINED. TO PUT THE DEVICE OF NESS OF THESE DECISIONS SEEM TO HAVE RISEN IN TANDEM. AN INCREASING NUMBER OF THESE CASES ARE DECIDED BY A NARROW 5-4 MARGIN. DIVIDED AMONG 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 THE SHADOW DOCKET DEMONSTRATES THAT AS A MINIMUM -- AT A MINIMUM, WE MUST HAVE TRANSPARENCY. KNOWING WHY THEY SELECTED CERTAIN CASES, HOW THEY VOTED, AND THEIR REASONING, IS IMPORTANT TO THE PUBLIC'S TRUST IN THE COURT'S INTEGRITY. THIS IS THE FIRST TIME THE COURT HAS EXPLORED THE SHADOW DOCKET IN-DEPTH. EACH OF TODAY'S WITNESSES BRINGS IMPORTANT INSIGHT INTO WHAT THE SHADOW DOCKET HAS BECOME, ITS IMPACT ON THE LAW AND THE AMERICAN PEOPLE, AND WHAT COULD OR SHOULD BE DONE. I LOOK FORWARD TO AN INFORMATIVE AND PRODUCTIVE DIALOGUE. IT IS NOW MY LEISURE TO RECOGNIZE THE RANKING MEMBER OF THE SUBCOMMITTEE, THE GENTLEMAN FROM CALIFORNIA ...

THANK YOU, MR. CHAIRMAN. AND THANK YOU FOR HOLDING THIS IMPORTANT HEARING TODAY. AT THIS TIME I'D LIKE TO ASK UNANIMOUS CONSENT TO ENTER INTO THE RECORD A NUMBER OF ARTICLES FROM ONE OF OUR WITNESSES PROFESSOR MOORLY SO THEY CAN BE CIRCULATED TO THE STAFF BEFORE HIS TESTIMONY. ...

WITHOUT OBJECTION SO ORDERED.

ALSO AT THIS TIME I'D LIKE TO ASK UNANIMOUS CONSENT THAT A MEMBER OF THE FULL COMMITTEE BUT NOT A MEMBER OF THE SUBCOMMITTEE, CONGRESSWOMAN SPARKS, BE ALLOWED TO ATTEND AND IF TIME PERMITTING IF THERE'S A YIELDING FROM ANOTHER MEMBER BE ABLE TO ASK A QUESTION. ...

WITHOUT OBJECTION SO ORDERED.

THANK YOU, MR. CHAIRMAN. MR. CHAIRMAN, 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 SAID IN YOUR OPENING STATEMENT WOULD BE PAIRED PERFECTLY WITH MY VIEWS. BUT THERE ARE SOME ITEMS THAT I THINK ARE CRITICAL AS WE ENSURE AS WE SEE WHAT'S WRONG WITH 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. THE COURT'S VARIOUS DECISIONS THEY HAVE TAKEN ON WHEN AND HOW YOU CAN EXECUTE A CONVICTED PERSON WHO'S BEEN SENTENCED TO DEATH, IN FACT IT'S 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 THEY CAN TAKE FAR MORE THAN THE 70 CASES THEY TAKE ON THEIR FORMAL DOCKET. NOTWITHSTANDING THAT I SHARE WITH YOU CONSIDERABLE CONCERN THAT DURING THE LAST ADMINISTRATION THIS FIVE FOLD INCREASE OCCURRED. THE QUESTION IS WHETHER OR NOT THE HIGH COURT OR EVEN IF THE SOLICITOR-GENERAL BUT RATHER WHAT THE FAIR INTERPRETATION OF WHAT AN ARTICLE 3 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 ENJOINED IN EVERY PART OF THE UNITED STATES INCLUDING ITS TERRITORIES WITHIN HIS JURISDICTION. THE QUESTION IS REALLY IN MANY CASES DOES HE HAVE A RIGHT TO ENJOIN THE ADMINISTRATION FOR THEIRC 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 IF PERHAPS THE ANSWER IS INCOMPLETE, IT FALLS TO THIS COMMITTEE OR SUBCOMMITTEE TO LOOK AT A RESTATEMENT OR REFORM OF THE BREADTH OF THESE TYPES OF DECISIONS. FOR ONE BELIEVE THAT WE DO HAVE AN OPPORTUNITY TO WORK TOGETHER ON A BIPARTISAN BASIS OVER THE NEXT TWO YEARS TO CRAFT GOOD AND UNDERSTANDABLE DECISIONS. AND I THINK PARTICULARLY SINCE THE ADMINISTRATION HAS RECENTLY CHANGED AND IN FACT CONTROLLED THE CONGRESS CHANGE WE CAN 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'S 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 FOR EITHER FOR 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 DEBT PENALTY CASE HAVING AN 11TH NOVEL REVIEWTHERE 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 ONE OF YOUR POINTS THAT IS MOST VALID IS ALTHOUGH IT'S UNLIKELY FOR US TO GET AN EXPEDITIOUS IMPROVEMENT IN THE TRANSPARENCY OF THE COURT THAT WE HAVE TO 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 BIPARTISANI&GSELECTED EXAMPLES AND WRITE THE COURT AND ASK THEM TO GIVE US IN THOSE SPECIFIC CASES THAT ARE OF PUBLIC INTEREST FOR 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 BEGIN TO BELIEVE WE HAVE THE BUILDING BLOCKS WHAT WE'D ASK FOR AND EXPECT POSTMORTEM IN THESE LAST MINUTE AND OFTEN IS SAID DEAD OF NIGHT DECISIONS. SO MR. CHAIRMAN, I ASK UNANIMOUS CONSENT THE REST OF MY OPENING STATEMENT WE PLACED INTO THE RECORD AND THAT WE BE ABLE TO GET TO OUR WITNESSES. THANK YOU, MR. CHAIRMAN. I THINK YOU HAVE TO UNMUTE. ...

THANK YOU, MR. ISSA. I NOW RECOGNIZE THE DISTINGUISHED MEMBER OF THE COMMITTEE, MR. JORDAN FROM OHIO OPENING STATEMENT. BUT I MIGHT ADD WITHOUT OBJECTION THE REMAINDER OF YOUR STATEMENT BE ENTERED INTO THE RECORD. AND WITH THAT, MR. JORDAN. MR. JORDAN, ARE YOU WITH US AND ARE YOU UNMUTED? ...

MR. CHAIRMAN, WE DON'T HEAR YOU AGAIN.

OKAY, APPARENTLY MR. JORDAN IS NOT ON THE LINE. AT THIS POINT I WILL PROCEED TO THE INTRODUCTION OF THE PANEL OF WITNESSES. AND OUR FIRST WITNESS IS PROFESSOR WHO HOLDS THE CHARLES WRIGHT CHAIR IN FEDERAL COURTS AT THE UNIVERSITY TEXAS SCHOOL OF LAW. HE'S ARGUED BEFORE THE U.S. SUPREME COURT, THE TEXAS SUPREME COURT AND LOWER CIVILIAN AND MILITARY COURTS. IN ADDITION TO TEACHING PROFESSOR VLADIC IS A DISTINGUISHED SCHOLAR AT THE CENTER FOR 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'S ALSO THE CO-HOST OF THE NATIONAL SECURITY LAW PODCAST, CNN'S SUPREME COURT ANALYST AND THE EXECUTIVE EDITOR OF THE JUST SECURITY BLOG AND A SENIOR EDITOR OF THE LAW FARE BLOG. PROFESSOR VLADIC RECEIVED HIS JD AND IF YOU'D GIVE ME JUST ONE SECOND. WELCOME PROFESSOR VLADIC, AND NEXT I'D LIKE TO INTRODUCE A CIVIL RIGHTS LAWYER WHO MITIGATES ISSUES OF NATIONAL IMPORTANCE IN FEDERAL COURTS ACROSS THE COUNTRY INCLUDING THE U.S. SUPREME COURT. HE IS DIRECTOR OF THE WASHINGTON, D.C. OFFICE OF THE MCARTHUR 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 AS 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 WATER LOO AND HIS JD FROM HARVARD LAW SCHOOL. AND I'D LIKE TO EXTEND A WARM WELCOME TO MR. ALI. PROFESSOR MICHAEL MOORELY 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 MOORELY WAS A 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 AS A LAW CLERK ON THE U.S. COURT OF APPEALS FOR THE 11TH CIRCUIT. HE ALSO WORKED AS AN ASSOCIATE AT WILLIAMS AND CONALLY LLP AND THE SUPREME COURT AND APPELLATE GROUP AT WINSTON AND STRONG LLP BOTH IN WASHINGTON, D.C. PROFESSOR MOORELY EARNED HIS JD FROM YALE LAW SCHOOL IN 2003. WELCOME PROFESSOR MOORELY. SOLICITOR-GENERAL LAUREN ALI KHAN 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 IN THE D.C. CIRCUIT AND THE SUPREME COURT. PRIOR TO THIS THE SOLICITOR-GENERAL ALI KHAN FOCUSED ON SUPREME COURT AND APPELLATE LITIGATION AT THE FIRM. SHE ALSO SERVED AS A 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. THE SOLICITOR-GENERAL 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, SIMAN'S ROCK AND JD FROM GEORGETOWN UNIVERSITY LAW SCHOOL. WELCOME SOLICITOR-GENERAL ALI KHAN. BEFORE PROCEEDING WITH TESTIMONY I REMIND THE WITNESSES ALL OF YOUR WRITTEN AND ORAL STATEMENTS MADE TO THE SUBCOMMITTEE ARE SUBJECT TO 18USC SUBJECTION 8001. PLEASE NOTE YOUR WRITTEN STATEMENTS WILL BE ENTERED INTO THE RECORD IN ITS ENTIRETY. AND I ASK YOU TO SUMMARIZE YOUR TESTIMONY IN FIVE MINUTES. TO HELP YOU STAY WITHIN THAT TIME FRAME THERE IS A TIMING LIGHT IN WEBEX. WHEN THE LIGHT SWITCHES FROM GREEN TO YELLOW YOU'LL HAVE ONE MINUTE TO CONCLUDE YOUR TESTIMONY. AND WHEN THE LIGHT TURNS TO RED, IT SIGNALS THAT YOUR FIVE MINUTES HAVE EXPIRED. PROFESSOR, YOU MAY NOW BEGIN. ...

THANK YOU, MR. !T ENJOINING STATE OFFICIALS IN WHICH MULTIPLE LOWER COURTS HAVE REFUSED TO DO SO. THE TRUMP ADMINISTRATION HELPED TO PRECIPITATE SOME OF THIS BUT THE SHADOW DOCKET IS MORE THAN JUST ABOUT THE GOVERNMENT. EVEN IN FEDERAL GOVERNMENT IT'S BEEN ABOUT MUCH MORE THAN NATIONWIDE INJUNCTIONS. WE'VE SEEN FOUR MORE SHADOW DOCKET RULINGS, THREE BLOCKED STATE COVID RELATED RESTRICTION. ONE REFUSED TO VACATE A LOWER COURT INJUNCTION, NONE INVOLVED THE FEDERAL GOVERNMENT. NOT ONLY ARE THE JUSTICES USING THE SHADOW DOCKET TO CHANGE THE STATUS QUO WITH GREATER FREQUENCY, BUT THEY'RE PUBLICLY DIVIDING ON THESE CASES FAR MORE SHARPLY THAN BEFORE. DURING THE OCTOBER 2017 TERM ONLY TWO SHADOW DOCKET ORDERS PROVOKED FOUR PUBLIC DISSENTS. DURING THE OCTOBER 2019 TERM ALONE THERE WERE ALMOST AS MANY PUBLIC 5-4 SHADOW DOCKET RULINGS 11 AS THERE WERE 5-4 MARRIAGE DOCKET RULINGS, 12. NO SIMPLE DEVELOPMENT ADEQUATELY EXPLAINS IT INCLUING THE RISE OF NATIONWIDE INJUNCTIONS. RATHER I THINK IT STEMS FROM A CONFLUENCE OF FACTORS INCLUDING THE SUPREME COURT'S CHANGE IN COMPOSITION AND THE ASCENDANCY OF AN IDIOSYNCRATIC VIEW WHEN EMERGENCY RELIEF IS APPROPRIATE. INDEED, IT'S NO COINCIDENCE IN MY VIEW THE BRAKES HAVE COME OFF SINCE THE RETIREMENT OF JUSTICE KENNEDY OR THE DEATH OF JUSTICE GINSBURG. NOR CAN IT BE DENIED THIS HAS REAL WORLD CONSEQUENCES. THEY'RE BOTH GOING TO SPEAK ON THE WAYS THESE RULINGS HAVE AFFECTED INDIVIDUAL GOVERNMENTS AND POLICYMAKING. BUT 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, HOW DO MORE AND MORE OF THE COURT'S DECISIONS HANDED DOWN THROUGH UNSEEN, UNSIGNED AND UNPLAINED ORDERS RAISES QUESTIONS SINCE SUCH RULINGS BEAR NONE OF THE HALLMARKS OF PRINCIPLE JUDICIAL MAKING. SECOND THEY LEAVE LOWER COURTS TO SPECULATE AND DISAGREED 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 ORATS THE VERY LEAST UNDERDEVELOPED FACTUAL RECORDS. AND FOURTH, THEY INCREASINGLY APPEAR TO BE COMING AT THE EXPENSE OF THE MERITS DOCUMENT 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. PUSHING MORE OF THE ISSUES TO MERITS DOCUMENT, PROVIDING MORE EXPLANATION FOR THOSE MAJOR DISPUTES THAT MUST BE RESOLVED THROUGH ORDERS. I DON'T DISAGREE THERE'LL ALWAYS BE SOME NEED FOR A SHADOW DOCKET, BUT NOT ALL OF THESE CASES ARE REALLY FOR EMERGENCIES. IF WE TAKE FOR EXAMPLE THE COURT'S MOST RECENT ORDER IN THE CALIFORNIA CASES, THAT ORDER CAME LATE ON A FRIDAY NIGHT, SIX DAYS AFTER THE BRIEFING HAD BEEN COMPLETE. THE COURT HAD EXPEDITED MERITS CASES IN LESS TIME IN ITS HISTORY. IN ANY EVENT CONGRESS IS HARDLY POWERLESS. AND ALTHOUGH I'M WARY OF EFFORTS TO PREVENT THE COURT FROM USING THE SHADOW DOCKET, I BELIEVE THERE IS A PRODUCTIVE CONVERSATION TO BE HAD ABOUT HOW CONGRESS MIGHT TAKE PRESSURE OFF OF THE SHADOW DOCKET. AND I SUBJECT SOME POSSIBILITIES IN MY WRITTEN STATEMENTS. 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 ATTENTION. IF NOTHING ELSE THEN TODAY'S HEAR SG A HEARING IS A WELCOME STEP IN THAT DIRECTION. THANK YOU FOR THE OPPORTUNITY TO TESTIFY AND I LOOK FORWARD TO YOUR QUESTIONS. ...

EXCUSE ME, I'M SPEAKING WITHOUT UNMUTING. THANK YOU FOR YOUR TESTIMONY AND MR. ALI THE FLOOR IS YOURS FIVE MINUTES.

THANK YOU FOR INVITING ME TO TESTIFY TODAY. THE VERY DESCRIPTION OF WHAT WE'RE TALKING ABOUT, THE SHADOW DOCKET MAKES CLEAR 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 OCCURRING ISSUES ON THE SHADOW DOCKET, THE EXECUTION OF A HUMAN BEING BY THE STATE. THIS IS THE MOST SOLEMN ACT OUR LEGAL SYSTEM AUTHORIZES. MR. 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. VLADIC 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'S 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 DOCKETS 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 DOMINIC HAKEEM MARCEL RAY, A DEVOUT MUSLIM ASKED FOR -- BY HIS SIDE HE WAS TOLD NO. A LOWER COURT STAYED HIS EXECUTION. THEY FOUND HE HAD A POWERFUL CLAIM WHICH PREVENTS THE GOVERNMENT FROM PREFERRING CERTAIN RELIGIONS OVER OTHERS. THE COURT ALSO FOUND 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 EXECUTION SAID IT WOULD HAVE BEEN OKAY TO DENY A BUDDHIST PRIEST AS LONG AS THEY DENIED A CHRISTIAN ADVISOR AS WELL. FAST FORWARD A TO JUST LAST WEEK A CHRISTIAN MAN WHO REQUESTED A PASTOR IN THE EXECUTION CHAMBER. IN RESPONSE THE STATE TOOK THE SUPREME COURT'S LATEST ADVICE. NO SPIRITUAL ADVISOR OF ANY KIND. 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 BY THE MUSLIM PERSON'S BUT MAYBE TAKEN AWAY IF DONE RIGHT. AND 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 IS HOW THE SUPREME COURT VIEWED THESE CASES. I DON'T THINK IT VIEWED THESE CASES IN SUCH A OPPONENT AT A THIM TOO MUCH MY POINT IN THE USE OF THE SHADOW DOCKET WE HAVE NO IDEA WHAT WAS THE DIFFERENCE EPIBETWEEN THESE MEN. THANK YOU AND LOOK FORWARD TO YOUR QUESTIONS. ...

THANK YOU, MR. ALI. NEXT WE WILL GO TO MR. MOORELY. FIVE MINUTES, THE FLOOR IS YOURS.

THANK YOU VERY MUCH. MR. CHAIRMAN, RANKING MEMBER ISSA, MEMBERS OF THE SUBCOMMITTEE, THANK YOU FOR THIS OPPORTUNITY TO TESTIFY. IT'S A PRIVILEGE TO HAVE THIS CHANCE TO SPEAK WITH YOU AGAIN. TODAY'S HEARING IS ON SUPREME COURT'S SHADOW DOCKET. IT'S A TERM THAT SOUNDS MYSTERIOUS ANDFORE BODING. IN FACT, IT'S SIMPLY A TERM A LAW PROFESSOR CONTINUED A FEW YEARS AGO AS THE CHAIRMAN MENTIONED FOR THE SUPREME COURT'S ORDERS LIST. ALL THE DOCUMENTS ARE MATTER OF A PUBLIC RECORD AND ACCESSIBLE THROUGH THE SUPREME COURT MFTS WEBSITE. SOMETIMES THE SUPREME COURT DOES NOT REVEAL HOW PARTICULAR JUSTICES VOTED ON THAT. 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 COURT ORDERS FROM TAKING IMMEDIATE EFFECT AND LOWER COURTS ORDERING THEM TO PERFORM CERTAIN ACTIONS AND GRANTS OF JUDGMENT IN WHICH THE SUPREME COURT AGREES TO HEAR A CASE BEFORE THE COURT OF APPEALS HAS HAD THE OPPORTUNITY TO RULE. I'D LIKE TO OFFER A FEW REFLECTIONS ON A FEW 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 VLADIC'S LAW REVIEW ARTICLE REVIEWS THAT ABOUT HALF OF THE SUPREME COURT STAYS AND ABOUT TWO THIRDS OF GRANTS OF -- I SINCE THE MAIN CONCERN WITH THESE ORDERS IS NOT THEIR GEOGRAPHICAL APPLICABILITY. INSTEAD WE SHOULD FOCUS ON PLAINTIFF ORIENTED INJUNCTIONS AND DEFENDANT ORIENTED INJUNCTIONS. 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 AND ARE NOT BEFORE THE COURT. WHEN A FEDERAL COURT ISSUES A NATIONWIDE DEFENDANT ORIENTED INJUNCTION IT COMPETELY DISABLES THE DEFENDANT AGENCY OR OFFICIALS FROM ENFORCING THE 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 OPERATIONS THROUGHOUT THE NATION, SUSPEND PROGRAMS THE GOVERNMENT BELIEVES FURTHERS IMPORTANT INTERESTS AND AFFECT POTENTIALLY MILLIONS OF RIGHT HOLDERS, THE COURT HAS A TREMENDOUS IMPETUS TO RESPOND WITH EXTRAORDINARY MEASURES LIKE STAYS BEFORE JUDGMENT. AMONG THEM THEY RAISE SERIOUS CONCERNS UNDER ARTICLE 3. THEY RAISE CONCERNS UNDER RULE 23 IN GIVING EFFECTIVE CLASS WIDE RELIEF. THEY HAVE UNFAIRLY ASYMMETRIC PRECLUSION EFFECTS. THEIR INTENTION WITH THE HIERARCHICAL DECENTRALIZED STRUCTURE OF THE CENTRAL JUDICIARY AS WELL AS THE SUPREME COURT'S OWN RULING 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 UNDERLINED THE SUPREME COURT'S CURRENT JURISDICTIONAL PROVISIONS CONFIRMS THAT CONGRESS INTENDED IMMEDIATE SUPREME COURT REVIEW TO BE AVAILABLE WHEN FEDERAL DISTRICT COURTS STRUCK DOWN 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 A RIGHT DIRECTLY TO THE U.S. SUPREME COURT. IN 1998 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 THESE AMENDMENTS INCREASE THE IMPORTANCE, QUOTE, AS A MEANS OF SECURING AN EXPEDITIOUS AND DEFINITIVE RESOLUTION. THE COMMITTEE REPORT CONCLUDED THAT THE JUDICIARY COMMITTEE CONTEMN PLATES THAT THE COURT WILL GIVE APPROPRIATE WEIGHT TO THE ELIMINATION OF DIRECT RUVIEW WHEN DECIDING WHETHER TO GRANT BEFORE GOVERNMENT. AT LEAST IN THAT RESPECT THE COURT IS ACTING CONSISTENTLY WITH CONGRESSIONAL INTENT. THANK YOU VERY MUCH. ...

THANK YOU, PROFESSOR MOORELY. AND NEXT WE WILL GO TO SOLICITOR-GENERAL ALI KHAN FOR FIVE MINUTES.

CHAIRMAN 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 FIRST-HAND THE INCREASING FREQUENCY THE SUPREME COURT DISPOSESF CONTENTIOUS LEGAL ISSUES ON THE SHADOW DOCKET. THESE ORDERS WHICH ADDRESS ISSUES OF IMPORTANCE 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 A THAT WOULD APPLY FOR VOTES CAST IN THE 2020 ELECTION. IN ONE UNSIGNED TWO PARAGRAPH DECISION THE SUPREME COURT REINSTATED THAT MAIL-IN BALLOTS BE SIGNED IN THE PRESENCE OF ANOTHER INDIVIDUAL DESPITE THE NEED FOR DISTANCING IN LIGHT OF COVID. 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 WERE SEEING TWO PATTERNS THAT DEVIATE FROM THE COURT'S MERIT CASES. FIRST HIGH PROFILE DOCKET DECISIONS SPLIT THAN MUCH HIGHER RATE THAN MERITS CASES. INDEED MANY OF THE SHADOW DOCKET ORDERS CONTAIN NO MORE THAN ONE PARAGRAPH EXPLAINING THE DISPOSITION MEANING THE PUBLIC KNOWS VERY LITTLE ABOUT WHAT THE COURT IS THINKING AND WHY. AS A GENERAL MATTER THE PUBLIC OVERWHELMINGLY RESPECTS THE COURT'S PRONOUNCEMENTS AS AUTHORITATIVE, A TRIUMPH THAT TRANSPARENCY AND CONSISTENCY ACROSS CASES. THE DEFINING FEATURE OF THE SHADOW DOCKET IS IT LACKS THESE PROCEDURE AND THIS CARRIES SEVERAL RISKS. FIRST THE SHADOW DOCKET PRESENTS DECISIONS -- LAWYERS PRODUCE THEIR BEST WORK WHEN THEY HAVE TUPTS TO DO RESEARCH, CONSULT COLLEAGUES. SUPREME COURT ADVOCATES AND EVEN SUPREME COURT JUSTICES ARE NO EXCEPTION. BUT THE ACCELERATED PACE OF THE SHADOW DOCKET MEANS THE COURT CONFRONTS NOVEL ISSUES AND FAR FEWER VIEWPOINTS. OR FACED ARGUMENTS THAT LACKED FULL CONSIDERATION THROUGH THE OPINIONS OF MULTIPLE APPELLATE COURTS. THERE'S ALSO NO OPPORTUNITY FOR ARGUMENT. AND OF PARTICULAR IMPORTANCE TO INSTITUTIONAL LITIGANTS LIKE THE DISTRICT OF COLUMBIA THERE WERE ALSO DIMINISHED OPPORTUNITIES FOR THE COURT TO HEAR THE VIEWS. THE SHADOW DOCKET ALSO LIMITS THE ABILITY OF THE COURT TO FORMALLY DELIBERATE. LAST APRIL, FOR EXAMPLE, THE COURT RULES 5-4 TO STAY AN EXECUTION. TO DEBATE A STAY OF EXECUTION. HE'D ASKED HIS COLLEAGUES TO WAIT UNTIL THE NEXT MORNING. INSTEAD THE COURT VACATED THE STAY OVERNIGHT. SECOND, SHADOW DOCKET ORDERS PROVIDE LITTLE OR NO INFORMATION ON HOW OR WHY THE COURT REACHED A RESULT. INDEED JUST LAST WEEK A MYSTERY JUSTICE JOINED JUSTICES TO HALT AN EXECUTION. SHADOW DOCKET ORDERS CONTAIN LITTLE TO NO EXPLANATION. THE INSCRUTABILITY OF SHADOW DOCKET ORDERS CREATES SIGNIFICANT PRACTICAL HURDLES. WHEN THE SUPREME COURT SPEAKS LEGAL INLSITUTIONS 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 FOR A COURT'S REASONABLE REASONING. THIS IS PROBLEMATIC FOR STATES AND PARTIES THAT STRIVE TO ACCURATELY IMPLEMENT THE COURT'S DIRECTIVES. THE COURT'S CONSIDERATION OF PANDEMIC RESTRICTIONS IS ONE EXAMPLE. THE ORDER PROVIDES NO CONSENSUS ON WHAT ANIMATED THE COURT'S CONCLUSION AND AS JUSTICE KAGEN NOTED PROVIDED NO GUIDANCE TO OTHER JURISDICTIONS CONFRONTING THE SAME ISSUE. I WANT TO CLOSE BY EMPHASIZING A HIGH LEVEL BUT I THINK IMPORTANT POINT. ISSUEWISE THE SHADOW DOCKET ARE RELATED TO THE COURT'S APPELLATE JURISDICTION. MEANING ITS SUPERVISORY FUNCTION OVER THE LOWER COURTS. AND CONGRESS HAS DONE SO BEFORE BOTH ALTERING THE CASES THE SUPREME COURT REVIEWS SUCH AS CAPITAL CASES. ACCORDINGLY THERE'S A PATH FOR LEGISLATION IF CONGRESS DEEMS IT APPROPRIATE. THANK YOU FOR THE OPPORTUNITY AND I LOOK FORWARD TO YOUR QUESTIONS. ...

THANK YOU, GENERAL ALLI KHAN. I'LL PROCEED WITH THE QUESTIONS AND BEGIN WITH RECOGNIZING MYSELF. PROFESSOR, 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, AND WHAT IMPACT HAS THAT HAD ON THE TYPES OF EMERGENCY RELIEF THE COURT HAS DECIDED TO GRANT? ...

IT'S A GREAT QUESTION, MR. CHAIRMAN. THE TRADITIONAL FOUR FACTORS REALLY QUICKLY ARE FIRST THE LIKELIHOOD THE SUPREME COURT WOULD GRANT WHEN THE CASE CAME BEFORE IT ON A PROPER APPEAL. SECOND, THAT THE COURT WOULD ACTUALLY SIDE WITH THE APPLYING PARTY ON THE LIKELY SUCCESS OF THE MERITS. THIRD, THAT THE APPEAL IN A PARTY WOULD SUFFER IRREPARABLE HARM AND FOURTH THAT THE BALANCE OF THE EQUITIES THAT THERE WOULDN'T BE AN EVEN GREATER HARM WORKED ON OTHER PARTIES, EVEN NONPARTIES BY PROVIDING THE RELIEF BEING SOUGHT. AND MR. CHAIRMAN, 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 ALLI KAHN WHAT I THINK WAS KNOWN, TOO. AND IN THAT DECISION THERE ARE MULTIPLE OPINIONS CONCURRENT AND DISSENTING IN THE INJUNCTION THE COURT ISSUES, NONE OF WHICH SPEAK ABOUT THE FACTORS, NONE OF WHICH TALK ABOUT WHETHER THERE WAS, IN FACT -- WHETHER THERE WAS IRREPARABLE HARM TO THE APPLICANTS FROM CALIFORNIA'S RESTRICTIONS IF THEY WERE ALLOWED TO REMAIN IN PLACE OR THE BALANCE OF THE EQUITIES, THE POTENTIAL DOWN SIDES OF ENJOINING CALIFORNIA'S INDOOR WORSHIP RESTRICTIONS FOR THE DURATION OF THE APPEAL. AND MR. CHAIRMAN, I THINK THE DISAPPEARANCE OF THAT CONSIDERATION, THE DISAPPEARANCE OF THE BALANCE OOF THE EQUITIES HAS REALLY TURNED THESE CASES INTO JUST MERITS DECISIONS WRG COMING AT AN INCREDIBLY PREMATURE STAGE WHERE NONE OF THE OTHER CONVENTIONAL EQUITABLE CONCERNS ABOUT THE IMPACT ON OTHER PARTIES ABOUT IRREPARABLE HARM ARE PLAYING HISTORICALLY. THAT'S THE SHIFT I THINK WE'VE SEEN AND THE BEST EVIDENCE OF IT IS INDIVIDUAL OPINIONS BY INDIVIDUAL JUSTICES MOST PROMINENTLY THE CHIEF JUSTICE IN CHAMBERS OPINION IN A CASE IN 2012. ...

THANK YOU. SOLICITOR-GENERAL ALLI KHAN IN YOUR WRITTEN STOIM YOU MENTION THEY'VE -- CAN YOU ELABORATE ON THE ON CLEAR GUIDANCE THAT HAS COME FROM THE COURT AND HOW THAT HAS IMPACTED THE DISTRICT OF COLUMBIA AND OTHER JURISDICTIONS? ...

ABSOLUTELY. JURISDICTIONS LIKE THE DISTRICT OF COLUMBIA WANT TO MAKE SURE THAT THEY'RE ADHERING TO THE COURT'S PRONOUNCEMENTS. THERE'S REAL CONTROVERSY AS TO WHETHER THESE SHADOW DOCKET RULINGS HAVE EFFECT AND WHICH ONES DO. AT THE SAME TIME WHEN THE SUPREME COURT HAS INVALIDATED A SIMILAR PROVISION EVEN IF IT'S IN A SITUATION THAT'S NOT PRESIDENTIAL YOU PAY ATTENTION. AND SO IF YOU DON'T HAVE THE REASONENING BEHIND THE DECISION SO FOR EXAMPLE IN THE SOUTH BAY 2 CASE, YOU DON'T HAVE A SENSE OF WHY THERE'S A -- 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 IN LIGHT OF COVID IN AREAS THAT WERE PARTICULARLY RAVAGED WE'D HAVE A HARD TIME UNDERSTANDING COULD WE BAN IT IN CERTAIN CIRCUMSTANCES, WHAT COULD THE APPROPRIATE CAPACITY RESTRICTS BE. AND BECAUSE WE DON'T HAVE THOSE CONSENSUS ISSUES IT LEAVES US WITH A GUESSING GAME WHAT WAS ANIMATING THEIR DECISION AND HOW IT WOULD APPLY TO US. ...

THANK YOU. MR. AND YOU WRITE THAT PERSON MAY BE EXECUTED EVEN THOUGH THE ONLY JUDICIAL DECISION ON THE BOOKS TELLS US THAT THERE WAS A SERIOUS LIKELIHOOD THE EXECUTION VIOLATES THE LAWS OF THE COUNTRY, OF OUR COUNTRY. AND IN A MATTER OF LIFE AND DEATH, THAT IS A PARTICULARLY ASTOUNDING CONSEQUENCE. YOU PROPOSED A NARROW FIX THAT WOULD IMPORT A STANDARD OF REVIEW FOR SUCH CASES. CAN YOU ELABORATE AND EXPLAIN HOW THINGS MAY HAVE TURNED OUT DIFFERENTLY FOR SOME OF THE CASES YOU'VE DESCRIBED HAD THERE BEEN SUCH A STANDARD? AND IF YOU CAN DO SO WITHIN ABOUT 30 SECONDS, I'D APPRECIATE IT. ...

I THINK THAT THERE IS AN EASY SOLUTION HERE THAT IS SOMETHING CONGRESS DOES ROUTINELY, WHICH IS PROVIDE STANDARDS FOR COURTS TO APPLY. AND THE EXAMPLE I GIVE IN MY WRITTEN TESTIMONY IS GOVERNING DECISIONS MADE BY STATE COURTS. IT IS TITLED 28 OF THE U.S. CODE 2254-D. AND IT ATTACHES GREAT DEFERENCE TO THOSE DECISIONS. AND I THINK IN THIS INSTANCE WHERE WE HAVE COURTS FINDING ERRORS, FINDING PROBLEMS WITH THE LEGALITY OF AN IMPENDING EXECUTION SIMILAR DIFFERENTIAL STANDARDS OF REVIEW OUGHT TO BE IN PLACE HERE. AND I THINK THIS SHOULD BE SEEN AS HELPING THE COURT AVOID THE PUBLIC CONFIDENCE ISSUES THAT I SPOKE ABOUT EARLIER. ...

THANK YOU. WITH THAT, I WILL NOW CALL UPON THE RANKING MEMBER MR. ISSA FOR FIVE MINUTES OF QUESTIONS.

THANK YOU, MR. CHAIRMAN. I THINK THIS QUESTION NEEDS TO BE ASKED SINCE I'M A CALIFORNIAN. I'LL START WITH PROFESSOR MORELY. IN THE CASE OF A DECISION IN CALIFORNIA BY GOVERNOR NEWSOM AS AN EXECUTIVE SHUTTING DOWN CHURCHES OUTRIGHT WHILE LEAVING FOR EXAMPLE POT DISPENSARIES AND A HOST OF OTHER RETAIL FACILITIES OPEN, BUT WITH -- AND 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 -- 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? ...

SO THERE IS TWO WAYS BEFORE 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 ANY 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 BE REASON FOR THAT WOULD BE JUDICIAL MODESTY, JUDICIAL UNCERTAINTY, THAT IF THERE IS A SITUATION WHERE THE COURT THINKS THAT IT MIGHT BE A FAST FACT CHANGING SITUATION WHERE IN THE CASE OF COVID FOR EXAMPLE DEVELOPMENTS WITH EITHER MUTATIONS OR THE SPREAD OF VACCINES, RIGHT, EITHER POSITIVE OR NEGATIVE DEVELOPMENTS MIGHT MATERIALLY CHANGE THE FACTS ON THE GROUND, THE COURT DOESN'T WANT TO BE LAYING OUT HARD AND FAST PRINCIPLES FOR FUTURE COURTS TO STICK TO, BUT 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 CALIFORNIA CAN LOOK AT THOSE RULINGS IN A MORE COMMON LAW FASHION AND TRY TO 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. AND THE NARROWEST RULING IS SIMPLY JUST AFFIRMING OR REVERSING. ...

THEY SEEM TO BE PRETTY CLEAR TO ME THAT THE GOVERNOR WAS SIMPLY WRONG. IN YOUR TESTIMONY, I THINK YOU MADE A VERY STRONG POINT, I'D LIKE TO HAVE YOU ELABORATE ON IT, WHEN IT COMES TO NATIONWIDE INJUNCTIONS, IF IN FACT THIS HOUSE OF REPRESENTATIVES WERE TO EITHER RESTATE OR CLARIFY ELABORATE ON IT, WHEN IT COMES TO NATIONWIDE INJUNCTIONS, IF IN FACT THIS HOUSE OF REPRESENTATIVES WERE TO EITHER RESTATE OR CLARIFY ELABORATE ON IT, WHEN IT COMES TO NATIONWIDE INJUNCTIONS, IF IN FACT THIS HOUSE OF REPRESENTATIVES WERE TO EITHER RESTATE OR CLARIFY OR THE HIGH COURT WERE TO CLARIFY THAT JUDGE'S JURISDICTION IS ONLY AS TO THE PLAINTIFFS IN FRONT OF THEM, RECOGNIZING THAT 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? ...

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 THE SO-CALLED NATIONWIDE INJUNCTIONS OR FOCUSING MORE ON THE RIGHT ISSUE DEFENDED ORIENTED INJUNCTIONS. AND SO IF DISTRICT COURTS WERE TO LIMIT THEIR RELIEF JUST TO THE PARTICULAR PLAINTIFFS BEFORE THEM, IF THEY DIDN'T PURPORT TO ENJOY FEDERAL STATUTES, REGULATIONS, EXECUTIVE ORDERS THROUGHOUT -- FOR LITIGANTS THROUGHOUT THE ENTIRE NATION OR THIRD PARTY NONLITIGANTS I SHOULD SAY, 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. ...

LASTLY -- AM I OUT OF TIME, MR. CHAIRMAN? 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 WERE THE DISTRICT -- OR 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? AND I'LL JUST QUICKLY SAY DEATH PENALTY CASES AND NATIONWIDE INJUNCTIONS AS JESTJUST TWO OF THEM. ...

THAT WOULD CERTAINLY BE ONE POTENTIAL RESPONSE IF YOU HAVE THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT THAT HAS NATIONWIDE INJURIES DECISIONJURISDICTION, THE SCOPE WOULD BECOME FAR LESS SALE YENLT. THERE ARE CERTAINLY DRAWBACKS TO HAVING SPECIALIZED COURTS AS WELL. I SEE MY TIME HAS ELAPSED SO WE CAN DISCUSS IT LATER. ...

LASTLY, FOR ALL OF WITNESSES

TIME HAS ELAPSED. BUT PROCEED, MR. ISSA

THANK YOU. I'LL BE VERY BRIEF.

YOU'RE ABOUT ONE MINUTE OVER.

THANK YOU. I'LL BE VERY BRIEF.

BRIEFLY, WOULD YOU ALL AGREE THAT IF ALL OF THE CASES HANDLED BY THE SHADOW DOCKET WERE TO BE TAKEN UP BY THE HIGH COURT, THE HIGH HIGH COURT WOULD NOT BE ABLE TO HANDLE THAT MANY CASES AND THEREFORE WE EITHER HAVE TO MAINTAIN THE SHADOW DOCKET OR FIND SOME WAY FOR A DELIBERATIVE BODY TO CONSIDER MORE OF THESE CASES? ...

CONGRESSMAN, I'LL SAY REALLY QUICKLY I DON'T THINK THAT IS TRUE IF YOU CAN CONSIDER THE RELEVANT SET, NOT EVERY ORDER OF THE SUPREME COURT ISSUES, BUT THE CATEGORIES WE'RE 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 HANDLING 85 OR 90 IS BELIED EVEN BY RECENT HISTORY. ...

THANK YOU. AND NEXT WE'LL PROCEED TO MR. STANTON FOR FIVE MINUTES.

THANK YOU VERY MUCH, MR. CHAIRMAN. OVER THE LAST FEW YEARS, WE'VE INCREASINGLY SEEN IN OUR COUNTRY A TALE OF TWO SUPREME COURTS, ONE THAT WE'RE 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 RATIONALE 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. BUT 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 MIND CLOSED 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, DO YOU AGREE WITH THIS AND IF SO WHAT JUSTIFIES SECOND GUESSING THE TRIER OF FACT LIKE THIS? ...

I THINK IT IS A FAIR POINT IN SOME OF THE CASES WE'VE SEEN. THERE IS GOING TO BE I THINK A BROKEN RECORD THAT YOU WILL 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. BUT I THINK MR. ALY CAN SPEAK TO SOME OF THE DEATH PENALTY CASES WHERE THERE WERE FACTUAL FINDINGS THAT WERE NOT CREDITED OR AT LEAST COMPLETELY IGNORED. I'LL 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. ...

AND WHAT IS THE IMPACT OF BY PASSING THE NORMAL STANDARD OF DEFERENCE GIVEN TO THE DISTRICT COURT FACTUAL FINDINGS IN THIS MANNER?

I THINK THAT THE IMPACT IN DEATH PENALTY CASES AND PARTICULARLY EXECUTION ISSUES IS IMMENSE FOR PUBLIC CONFIDENCE. YOU KNOW, 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 SAID THIS IS A DIFFICULT ISSUE, WE NEED 12 MORE DAYS TO HAVE AN EXPEDITED ARGUMENT AND THE SUPREME COURT REACHED DOWN AND STOPPED THE FOURTH CIRCUIT FROM EVEN TAKING THOSE 12 DAYS. AND WHEN WE LOOK BACK AT THE HISTORICAL RECORD, I THINK THAT IT WILL LOOK LIKE A REAL STAIN IN TERMS OF PUBLIC CONFIDENCE IN THE OPERATION OF WHAT IS OFTEN REFERRED TO AS THE MACHINERY OF DEATH. ...

PROFESSOR, 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 DID YOU SAY IN RESPONSE TO THAT? ...

THAT IS CERTAINLY WHAT THE SUPREME COURT HAS SAID. I THINK THE PROBLEM, AND 24THE 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, THREE DAYS AFTER THAT DECISION, THE COURT ISSUED A GRANT TO VACATE AND REMAND IN A DIFFERENT CASE CALLED DISH VERSUS NEWSOM WHERE THEY SAID TRY AGAIN IN LIGHT OF ITS DECISION. AND THE DECISION WAS AN UNSIGNED ORDER WITH NO ANALYSIS. SO IT MAY BE THE CASE THAT THE SUPREME COURT DOESN'T FEEL ANYTHING IT SAYS ON THE SHADOW DOCKET IS BINDING. BUT IT CLEARLY VIEWS IT AS BIND MANAGEMENT LOWER BINDING IN THE LOWER COURTS. ...

THANK YOU VERY MUCH. I YIELD BACK.

NEXT WE WILL HEAR FROM THE GENTLEMAN FROM OHIO FOR FIVE MINUTES.

THANK YOU FOR HOLDING THIS REALLY VERY INTERESTING MEETING ON THIS INTERESTING TOPIC. PROFESSOR MORELY, 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 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 GET 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 MORELY, 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? ...

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 SIMG PA 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 BE ADJUDICATED. SO DEPENDING UPON THE VALANCE OF THE CASE, THERE ARE CERTAIN JURISDICTIONS THAT PLAINTIFFS WILL GO TO AGAINST WHAT THEY VIEW TO BE AGGRESSIVE MEASURES, THERE ARE CERTAIN JURISDICTIONS WHEN LEFT LEANING PLAINTIFFS WILL GO TO, AND 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 AND 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 ARE SENT 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 RIGHT, THE EFFECTS OF FORUM SHOPPING GO FAR BEYOND JUST IMPACTING A PARTICULAR CASE TO SHAPING CONSTITUTIONAL LAW FOR THE NATION. ...

THANK YOU. I'M ABOUT OUT OF TIME, SO JUST TO SUM IT UP, TO ME --

THREE SECONDS LEFT.

PARDON ME?

30 SECONDS.

IT SEEMS INHERENTLY UNFAIR TO ALLOW ONE JUDGE IN A PARTICULAR JURISDICTION TO ISSUE A RULING WHICH ESSENTIALLY BINDS THE ENTIRE NATION WHEN THERE ARE A SCORE OF -- A HUGE NUMBER OF JUDGES IN OTHER DISTRICTS WHO WOULD COME TO JUST THE OPPOSITE POINT OF VIEW. AND 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. AND SO WE DID NEED TO WORK TOGETHER ON A BIPARTISAN MANNER TO DO SOMETHING ABOUT THIS. AND I YIELD BACK. THANK YOU. ...

I THANK THE GENTLEMAN. NEXT WE'LL GO TO THE GENTLEMAN FROM HAWAII, MR. LEW FOR FIVE MINUTES.

THANK YOU FOR CALLING THIS HEARING. AND THE ISSUE TODAY ISN'T REALLY ABOUT HOW LOWER COURTS OR PEOPLE LAT COURTS LOOKS AT INJUNCTIONS, IT IS ACTUALLY ABOUT THE SUPREME COURT ISSUING ORDERS IN THE DARK. AND NOT EVEN PUTTING NAMES ON IT. SO ONE OF THE WITNESSES HAD TESTIFIED THAT MYSTERY JUSTICE HAS SIGNED ON TO A PARTICULAR ORDER. YOU CAN JUST EXPLAIN A LITTLE MORE WHAT HAPPENED IN THAT SPECIFIC ISSUE? ...

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. AND SO THERE WAS CLEARLY SOMEONE LURKING IN THE BACKGROUND THAT CAST THAT VOTE BUT DID NOT WANT TO BE ACCOUNTABLE FOR IT. AND 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 IN A SITUATION WHERE WE DON'T KNOW WHO THE MAJORITY OF THE COURT IS ON ANY PARTICULAR CASE. ...

AND HAS THE COURT OR ANY JUSTICES OFFERED ANY RATIONALE FOR WHY THEY BELIEVE THAT THEY CAN SIGN ON TO ORDERS WITHOUT DISCLOSING THEIR NAME?

I THINK THIS GETS BACK TO SOMETHING THAT THE PROFESSOR ALLUDED TO, WHICH IS ON THE GENERAL ORDERS DOCKET, MOST OF THE DECISIONS THAT ARE WHAT ARE ROUTINE DECREASEOCKET MANAGEMENT QUESTIONS THAT DON'T NEED TO HAVE ANY JUDGE'S NAME ON IT. SOME DID BECAN BEING DISPOSED BY ONE JUSTICE AND THEY DON'T NEED ANY NG DISPOSED BY ONE JUSTICE AND THEY DON'T NEED ANY EXAMINATION.G DISPOSED BY ONE JUSTICE AND THEY DON'T NEED ANY EXAMINATION. DISPOSED BY ONE JUSTICE AND THEY DON'T NEED ANY EXAMINATION. BUT THE PROBLEM IS THE QUASI MERITS IS BEING DISPOSED OF ON THE ORDERS DOCKET. SO NOT HAVING A NAME, 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 ANNOUNCED WHAT THEIR VOTES ARE, HAVING MAJORITY OPINIONS THAT PROVIDE REASONING AND HAVING DISSENTING OPINIONS AS ARE APPROPRIATE. ...

DOES CONGRESS HAVE THE POWER TO WRITE LEGISLATION REQUIRING JUSTICES TO SIGN THEIR NAMES TO QUASI MERITS ORDERS OR DECISIONS?

I THINK I'D DEFER TO THE PROFESSOR ON THIS QUESTION.

CONGRESSMAN, I THINK THAT IT IS A CLOSE QUESTION. CONGRESS HAS NEVER TRIED TO BEFORE AND EVEN IF IT MIGHT BE WITHIN CONGRESS' RAW CONSTITUTIONAL POWER, 00 IMNO T'M NOT SURE THAT IT WOULD HAVE THE DESIRED RESULT. THERE I'M NOT SURE THAT IT WOULD HAVE THE DESIRED RESULT. I'M NOT SURE THAT IT WOULD HAVE THE DESIRED I THINK THE COURT WOULD HAVE THE PUBLIC VOTE COUNT ALWAYS BE UNANIMOUS EVEN IF THE PRIVATE VOTE COUNT WASN'T. I THINK THE BETTER WAY TO THINK ABOUT REFORM, AND MR. ALY TALKED ABOUT THIS, IS WAYS ABOUT TAKING PRESSURE OFF THE SHADOW DOCKET. TO THE POINT ABOUT HOW THESE ARE QUASI MERITS ADJUDICATIONS, TRY TO FIGURE OUT IF THERE ARE WAYS TO HELP THE COURT HAVE MERIT TO HELP THE COURT ACTUALLY HAVE MERIT ADJUDICATIONS IF THESE CASES REALLY PRESENT CIRCUMSTANCES WARRANTING THAT DRAMATIC EXPEDITION. CONGRESSMAN, WE SAW THAT THIS TERM WITH THE APPORTIONEMENT CASE WHICH THE COURT GOT ON ITS MERITS DOCKET AND DECIDED IN A SIGNED DECISION PRETTY QUICKLY. SO 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 BEHAVIOR. ...

THANK YOU. BACK TO THAT YOU TALKED ABOUT WHERE THE JUSTICE SIGNED ON. WHY IS IT THAT WE KNEW THE NAMES OF THE OTHER JUSTICES IN THAT CASE?

BECAUSE THEY DISCLOSED THEM. IN CASES WHERE THEY WANT TO THE WRITE SEPARATELY, EVEN IF IT'S ONE SENTENCE OR 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. ...

THANK YOU. AND THEN ONE LAST QUESTION, PROFESSOR VLADIC, WHAT IF THERE WAS A CONGRESSIONAL ORDER THAT SAID BECAUSE DEATH PENALTY CASES ARE SO IMPORTANT AND IRREVERSIBLE IF THE EXECUTION HAPPENS THAT WHEN YOU HAVE ORDERS IN THOSE CASES, THEY'VE ALL GOT TO DISCLOSE WHO THE JUSTICES ARE? ...

ANOTHER WAY I WOULD THINK ABOUT DEATH PENALTY CASES, CONGRESSMAN, IS SOMETHING MR. ALI ALLUDED TO, RESTORING THE SUPREME COURT'S MANDATORY APPELLATE JURISDICTION IN THOSE YASES IT -- CASES WHERE IT HAS TO HEAR THOSE ON THE MERITS AND NOT ON THE SHADOW DOCKET. WE HAVE AN EXAMPLE IN THE FEDERAL COURT THAT'S JURISDICTION IS OTHERWISE DISCRETIONARY BUT MUST HEAR CAPITAL CASES, APPEALS ON THE ARMED FORCES. I DON'T KNOW WHY WE COULDN'T DO THE SAME FOR THE SUPREME COURT. ...

THANK YOU, GENTLEMEN, TIME HIS EXPIRED. WE GOING TO THE DISTINGUISHED GENTLEMAN FROM TEXAS, MR. GOMAN, FOR FIVE MINUTES. MR. GOMAN?

THANK YOU, MR. CHAIRMAN AND THANKS TO OUR WITNESSES. I AM A BIG FAN OF JUSTICES -- JUDGES AND JUSTICES MAKING CLEAR WHO'S MAKING THE DECISION AND I WOULD WELCOME REFORMS THAT REQUIRED THAT, UNLIKE ONE OF OUR WITNESSES, I THINK CONGRESS HAS THE AUTHORITY TO REQUIRE SUCH A THING, SINCE AS MY CONSTITUTIONAL LAW PROFESSOR SAID MANY YEARS AGO, THERE'S 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 THROUGH THE POINT THAT THEY'RE NOT IN THE SHADOW. THEY ARE LEGITIMATE SHOULD BE CONSIDERED PRELIMINARY JUDGMENTS. BUT I DO HAVE THE CONCERN. PEOPLE OUGHT TO KNOW WHO IT IS THAT'S FORMULATING A DECISION. I HAVE A PROBLEM WITH PROCURIUM EN BANC AS A WAY TO HIDE WHO WROTE A DECISION. I WOULD LIKE TO SEE WHO WROTE THOSE DECISIONS. BUT WHEN IT COMES TO THIS DOCKET THAT'S THE SUBJECT OF THE HEARING TODAY, THERE ARE TIMES WHEN PARTICULARLY THE FACTOR MENTIONED 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 PLANE LOADS OF PEOPLE WANTING TO LEAVE THE AREA THAT POTENTIALLY HAD THE DISEASE, AND FLY TO THE UNITED STATES, AND SOME FEDERAL JUDGE SAYS, THE PRESIDENT CAN'T HAVE A TEMPORARY TRAVEL BAN, WE NEED TO WELCOME THOSE PEOPLE. I'M 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? ...

YES, CONGRESSMAN, UNDER THE SCENARIO THAT YOU LAID OUT THERE, THERE WOULD CERTAINLY BE A VERY STRONG ARGUMENT THAT HAVING THE POTENTIAL PANDEMIC SPREAD, IF YOU KNOW PEOPLE FROM A PARTICULAR AREA WHERE YOU HAVE A HIGHLY INFECTIOUS DISEASE SPREAD, ONCE THEY'RE ALLOWED INTO THE COUNTRY, ONCE THEY'RE ALLOWED INTO CONTACT WITH THE GENERAL PUBLIC, YOU CAN'T UNRING THAT BELL. ONCE THE VIRUS IS SPREAD, EVEN LATER ON TO REVERSE THAT RULING OR TRY TO UNDO THE RULING, THE COURT CAN'T ORDER THE VIRUS OUTSIDE OF PEOPLE'S BODIES SO THAT WOULD BE THE EXACT SORT OF SITUATION WHERE THE SUPREME COURT WOULD LIKELY FIND THAT THERE WOULD BE IRREPARABLE HARM AND A BALANCE OF HARDSHIPS TILTING SHARPLY IN THE GOVERNMENT'S FAVOR AND THAT'S EXACTLY THE SORT OF SITUATION THAT THE HOUSE JUDICIARY COMMITTEE WAS CONTEMPLATING WHEN IT SHIFTED CONSTITUTIONAL -- AWAY FROM THE SUPREME COURT AND BACK TO THE USUAL APPELLATE PROCESS THAT MOST CASES GO THROUGH, THE HOUSE JUDICIARY COMMITTEE EMPHASIZED THAT WE ARE NOT TRYING TO STOP THE COURT FROM GETTING INVOLVED WHEN THERE'S A NEED TO DIRECTLY DO SO WHEN THERE ARE FEDERAL LAW AND OTHER FEDERAL MEASURE HAS BEEN ENJOINED. ...

THANK YOU. OF COURSE, THE UNPRECEDENTED NUMBERS, AS HAS BEEN POINTED OUT, HAVE BEEN MAYBE 27 OF THESE TYPE CASES IN THE 20TH CENTURY AND 55 JUST IN THE FIRST THREE 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 AND ON DISPLAY AND APPROPRIATE FOR THE SUPREME COURT TO STEP IN AND SAY THIS ISN'T RIGHT AND I APPRECIATE YOUR TIME TODAY. THANK YOU, I YIELD BACK. ...

I THANK THE GENTLEMAN. WE GOING TO THE GENTLELADY FROM CALIFORNIA, AS IS IS THE GENTLEMAN WHO I MISIDENTIFIED SIZE COMING FROM HAWAII, MR. LIEU, HE'S FROM CALIFORNIA, ALSO. I RECOGNIZE THE GENTLELADY FROM CALIFORNIA FOR FIVE MINUTES. ...

THANK YOU VERY MUCH, MR. CHAIRMAN AND ALTHOUGH MR. GOMERIT AND I DON'T AGREE ON A LOT OF THINGS, I DO AGREE WITH HIS OBSERVATION THAT CALLING THIS A SHADOW DOCKET PROBABLY IS UNNECESSARILY PREJORRATIVE 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 IN THE DOCKET 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'M WONDERING, PROFESSOR VLADIC, WERE THESE DECISIONS UNUSUAL? WHAT ARE THE PROBLEMS WITH THE HIGHEST COURT GETTING INVOLVED IN DISTRICT COURT CASES AT THIS STAGE OF THE GAME? ...

IF I DO THINK THEY WERE UNUSUAL IN THE SENSE THAT ONE SIGNED MANY PRIOR EXAMPLES OF THE SUPREME COURT ISSUING WRITS OF MAN DAMES IN A COUPLE OF CASES OR HINTING, THE SUPREME COURT BLOCKING A ORDER TO TAKE DEPOSITION TESTIMONY FROM A CABINET SECRETARY. I THINK THERE ARE DEFENDERS OF THE ADMINISTRATION WHO WOULD SAY THAT DISTRICT COURTS HAD BEEN TAKING UNUSUAL STEPS IN DISCOVERY AGAINST THE GOVERNMENT WITNESSES. ALL I WOULD SAY IN RESPONSE TO THAT IS TWO THINGS. I THINK THE GOVERNMENT WITNESSES WERE BEHAVING REMARKABLY DECEPTIVELY IN A COUPLE OF THOSE CASES BUT SECOND, THIS 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, SENIOR GOVERNMENT OFFICIALS, THEY OUGHT TO SAY SO AND ISSUE AN OPINION THAT SAYS HERE ARE THE CIRCUMSTANCES IN WHICH IT'S APPROPRIATE TO DEPOSE SOMEONE, SECRETARY ROSS, FOR EXAMPLE, AS OPPOSED TO LEAVING US TO GUESS WHEN IT'S APPROPRIATE, WHEN IT'S NOT. ONE LAST POINT, 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 QUICKLY ON WHETHER THE DISTRICT JUDGE COULD RELY ON EXTRA RECORD EVIDENCE AND THE DISTRICT COURTS HAD NEVER RELIED ON EXTRA RECORD EVIDENCE. HIS FINAL DECISION WAS BASED SOLELY ON THE ADMINISTRATIVE RECORD SO IT WAS ALL FOR NOUGHT WHICH GOES AGAIN TO WHY THIS IS NOT JUST UNHELPFUL IN NOT TELLING US WHAT'S GOING ON BUT OFTEN UNNECESSARY IN THE SENSE THAT WE NEVER GET TO THE ACTUAL HARM THE GOVERNMENT WAS CLAIMING. ...

I KNOW MY TIME IS RUNNING OUT I BUT I WOULD SAY THAT WE HAVE CONCERNS ABOUT TRANSPARENCY BUT IT REALLY GOES TO TWO THINGS. ONE, THE CREDIBILITY OF THE COURT AND THAT'S ABSOLUTELY IMPORTANT THAT THE COURT HAVE CREDIBILITY IN THE LAND, AND TRANSPARENCY RELATES TO THAT, BUT ALSO TRANSPARENCY IN TERMS OF THE IMPLEMENTATION OF DECISION MAKING AND I WAS INTERESTED IN THE RANKING MEMBER'S COMMENT ABOUT THE COVID RELIGION CASES BUT I THINK THE COURT'S DECISION MAKING FELL SO SHORT BECAUSE IT WAS NOT CLEARLY CLEARLY -- CLEAR WHAT THEY WERE DOING AND I'LL GIVE YOU AN EXAMPLE 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 AND 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 CREATED A MESS HERE IN A WAY AND THE MESS REALLY IS SERIOUS BECAUSE THE VIRUS CAN KILL PEOPLE AND I DO THINK THAT THEIR PROCEDURES FELL FAR SHORT HERE AND I AM VERY INTERESTED, MR. CHAIRMAN, IN WHAT KIND OF THOUGHTFUL DELIBERATION WE MIGHT HAVE TO PUT SOME GUIDE RAILS ON THIS SO WE CAN PROTECT THE REPUTATION OF THE COURT AND MAKE CLEAR THE DECISION MAKING 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. CHAIRMAN, THANK YOU FOR RECOGNIZING ME, I WOULD YIELD BACK. ...

I THANK THE GENTLELADY, HER POINT IS WELL TAKEN. WE GO TO THE GENTLEMAN FROM LOUISIANA, MR. JOHNSON, FOR FIVE MINUTES. MR. JOHNSON, YOU MAY WANT TO UNMUTE. HEARING NO RESPONSE FROM MR. JOHNSON, HE MAY NOT BE ON THE LINE. I'M NOT LOOKING AT THE LIST. WE WILL NOW GO TO THE GENTLELADY FROM WISCONSIN, MR. OR MS. TIFFANY FOR FIVE MINUTES. I'M SORRY, WE HAVEN'T MET YET. MR. TIFFANY IS APPARENTLY NOT ON THE LINE EITHER SO WE SHALL NEXT GO TO THE GENTLEMAN FROM KENTUCKY, MR. MANCY, FOR FIVE MINUTES. ...

THANK YOU, MR. CHAIRMAN. I THINK THAT WE ALSO WOULD BENEFIT FROM KNOWING WHICH JUDGES RULED IN WHICH WAY IN THESE CASES BUT 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? ...

NOT AT ALL. IF IT IS GOING TO BE A MERITS DETERMINATION, I THINK THE PUBLIC NEEDS TO KNOW WHO IS IN THE MAJORITY AND WHO IS NOT. THAT'S CONSISTENT WITH HOW WE NORMALLY KEEP MERITS CASES. IT'S THE VAGARY THAT THESE MERITS DECISIONS ARE BEING MADE ON A DOCKET USED HISTORICALLY FOR ROUTINE ORDERS THAT WE'RE SEEING THIS PROBLEM BUT I THINK JUDGES AND ACADEMICS WOULD THINK THERE'S A REAL INTEREST IN KNOWING WHO IS VOTING HOW. ...

IT SEEMS TO ME TO SET UP 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 THERE, WOULD BE MORE INCENTIVE TO TAKE THE CASE UNDER THIS SITUATION. ALSO, I DON'T KNOW IF THIS IS PROJECTICAL OR -- PRACTICAL OR NOT, WOULD IT RESTORE THE INCENTIVE TO HEAR THESE CASES IN THE RIGHT SORT OF SETTING, WOULD IT BE POSSIBLE FOR JUDGES TO GO BACK AFTER QUICKLY RULING TO FLESH OUT OPINIONS? OR HOW WOULD CONGRESS GO ABOUT REQUIRING THAT? WE COULDN'T REQUIRE A CERTAIN NUMBER OF PARAGRAPHS, FOR INSTANCE. IS THERE ANY WAY YOU COULD 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'RE GOING TO HAVE TO DO JUST AS MUCH WORK AND BE JUST AS TRANSPARENT UNDER THE QUICK SITUATION THAN THEY WOULD UNDER A TYPICAL MERIT BASED HEARING? ANY OF THE WITNESSES ARE WELCOME TO ANSWER THAT. ...

CONGRESSMAN, YOU MAY BE FAMILIAR WITH THE WORLD WAR II ERA CASE OF EX PARTE CURIN, THE FAMOUS NAZI SABOTEUR CASE IN THE U.S. SUPREME COURT WHERE THE SUPREME COURT DID THAT, IT ISSUED A SHORT PERCURIUM ORDER ALLOWING THE MILITARY COMMISSION TRIED OF THE SABOTEURS TO GO FORWARD AND IT WAS ABOUT TWO MONTHS LATER AFTER SIX OF THE EIGHT ABTOURS HAD BEEN EXECUTED, THE COURT FINALLY ISSUED AN OPINION SETTING FORTH THE RATIONALE AND I THINK THERE'S A BROAD CONSENSUS THAT AS JUSTICE SCALIA PUT IT, THAT WAS NOT THE COURT'S FINEST HOUR, THAT IT'S A PROBLEMATIC SETUP WHEN THE COURT IS WRITING OPINIONS AFTER THEY'VE DONE THE THING THAT MATTERS TO TRY TO EXPLAIN WHY THEY DID THE THING IN THE PAST. I THINK THE FAR BETTER APPROACH, SOMETHING YOU'RE HEARING CONSISTENTLY FROM MR. AND MR. ALI AND SECRETARY GENERAL ALI KAHN, IS TO GIVE THE COURT MORE ABILITY TO HEAR THE MERITS QUICKLY. WE HAVE BUSH VERSUS GORE, THE COURT WENT FROM GRANTING THE CASE TO A MERITS DECISION IN THREE DAYS. THE PENTAGON PAPERS CASE WAS A WEEK. THE COURT HAS THE ABILITY TO MOVE VERY QUICKLY EVEN ON ITS MERITS DOCKET. IT HAS JUST FALLEN OUT OF PRACTICE AND I THINK ONE OF THE QUESTIONS IS HOW WE CAN CREATE INCENTIVES FOR THE COURT TO RETURN TO THAT. ...

IN THE DEATH PENALTY CONTEXT, I THINK IT WOULD BE PARTICULARLY PROBLEMATIC TO HAVE EXPLANATION AFTERWARDS.

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? ...

MOST BASICALLY THERE'S STRONG ARTICLE 3 PROBLEMS. THERE'S A FLESHINESS TO WHETHER A PLAINTIFF HAS STOONDS ASK -- STANDING TO ASK THE COURT TO INVALIDATE A LAW OR ENJOIN A LAW OR IF A PLAINTIFF ONLY HAS STANDING TO ENFORCE ITS OWN RIGHTS SO UNDER THE COURT STANDING DOCTRINE THERE'S A STRONG ARGUMENT THAT THE PLAINTIFF DOESN'T HAVE STANDING AND THE COURT ACCORDINGLY DOESN'T HAVE JURISDICTION TO GRANT RELIEF UNNECESSARY TO ADDRESS THE -- OF THE PLAINTIFF TAILORED TO THE BENEFIT OF NON-LITIGANTS. WE ALREADY HAVE A MECHANISM IF A PLAINTIFF WANTS TO ENFORCE THE RIGHTS OF THIRD PARTIES TO BRING THEM BEFORE THE COURT FOR THE CLASS ACTION DEVICE AND IN PARTICULAR -- ADOPTED SPECIFICALLY TO LAW CIVIL RIGHTS CLASS ACTIONS IN ORDER TO ENFORCE THE RIGHTS OF A BROAD CLASS OF PEOPLE AND THEY'RE CONTRARY TO THE STRUCTURE, THE WAY THAT CONGRESS HAS CHOSEN TO STRUCTURE THE FEDERAL JUDICIAL SYSTEM UNDER THE ACTIVATION 91, CONGRESS CHOSE TO CREATE SEPARATE CIRCUITS, DISTINCT BODIES OF LAW, IF THE CONGRESS WANTED THE FIRST JUDGE TO GIVE THAT A FORCE OF LAW THROUGHOUT THE NATION, CONGRESS COULD HAVE STRUCTURED THE JUDICIARY THAT WAY BUT IT CHOSE NOT TO. ...

YIELD BACK.

I THANK THE GENTLEMAN. NEXT WE WILL HEAR FROM THE ILLUSTRIOUS GENTLEMAN FROM TENNESSEE, MR. COHEN, FOR FIVE MINUTES.

THANK YOU, I APPRECIATE "THE ILLUSTRIOUS" CHAIRMAN OF THE SUBCOMMITTEE, MR. JOHNSON. PROFESSOR VLADIC, 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 LACKRITY OR DIFFICULTY IN THE WORK PRODUCT FITTING INTO THE TIME AVAILABLE TO THE COURT? ...

IT'S A FAIR QUESTION AND ALL I CAN DO IS SPECULATE BUT I THINK IT'S 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'S A SAL TARRY BENEFIT FROM SOME OF THE JUSTICES BUT 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'LL NOTE THERE WAS A SIGNIFICANT SHADOW DOCKET RULING RIGHT BEFORE -- IN MID JANUARY ABOUT MYTHO PREX, MEDICINAL ABORTIONS, WHERE THE APPLICATION FROM THE FEDERAL GOVERNMENT HAB BRIEFED IN AUGUST AND THE DECISION FINALLY COMES DOWN IN JANUARY. THAT DOESN'T STRIKE ME AS AN EMERGENCY, CONGRESSMAN. SO I THINK ONE OF THE THINGS WE'VE SEEN IN THE LAST 40 YEARS, THERE WILL ALWAYS BE CASES THAT PRESENT REAL EMERGENCIES THAT CANNOT BE AVOIDED BUT WE'VE SEEN THE IDEA OF AN EMERGENCY SLIDE WHERE NOW CASES THE COURT IS SITTING ON PERHAPS WEEKS ARE STILL HANDLED THROUGH ITS PROCEDUROUS DESIGN FOR EXPEDIENCY IN CIRCUMSTANCES WHERE EXPEDIENCY WAS NOT NECESSARY. ...

YOU SAID THE LATTER MEANING THEY DON'T HAVE ENOUGH TIME TO HEAR THE CASES. YOU I THINK THEY'RE DOING THAT BECAUSE OF FAILURE OF THE CONGRESS TO MODERNIZE AND REFORM THE COURT TO GIVE THEM ADEQUATE AMOUNT OF JUSTICES TO BE ABLE TO ADEQUATELY HEAR THE CASES? ...

I THINK THE SIZE OF THE COURT IS PROBABLY A DIFFERENT CONVERSATION FOR A DIFFERENT TIME. I DO THINK THAT THERE'S QUITE A LOT OF PLAY IN THE JOINTS OF TIMELINES, CONGRESSMAN, IN HOW LONG PARTIES HAVE TO APPEAL, IN HOW THE PARTY THAT WON THE LOAD CAN SLOW THINGS DOWN AND ONE OF THE REFORMS CONGRESS CAN CONSIDER TO TAKE PRESSURE OFF THE OF THE SHADOW DOCKET WOULD BE IDENTIFYING A PARTICULAR CLASS OF CASES WHERE TIMELINES OUGHT TO BE SIGNIFICANTLY COMPRESSED AND CAN INCLUDE CASES IN WHICH STATE OR FEDERAL POLICIES ARE SUBJECT TO AN INJUNCTION FOR THE LOWER COURT, INCLUDING CAPITAL CASES, WHERE THE PARTIES REALLY HAVE TO MOVE QUICKLY, NOT NECESSARILY A MATTER OF HOURS, 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. ...