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Deep in the Shadows?: The Facts About the Emergency Docket

The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly consequential decisions in a sneaky, secretive fashion. Using data from the Court’s 2021–22 Term and neutral methods, we analyze the entirety of the emergency docket. The results show that conservative interests fare better on the emergency docket, just as they do on the merits docket—no surprise considering the Court’s political orientation. Unsettling as this may be from a liberal or legal-formalist perspective, there is little evidence that any of this is happening in the shadows.

Introduction

Minutes before midnight on September 1, 2021, the U.S. Supreme Court declined to block a Texas law that banned abortions after six weeks.1 1.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2494–96 (2021).Show More The uproar that followed reflected not only fervent views over abortion but also procedural concerns. Among the complaints was that the Court had issued the ruling on its emergency docket—these days, often called the “shadow docket.”2 2.The emergency docket goes by various names, including the “non-merits docket,” the “procedural docket,” and the “shadow docket.” Credit for originating the term “shadow docket” is generally given to an article by University of Chicago Law Professor Will Baude. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1,5 (2015).Show More In dissent, Justice Kagan, joined by Justices Sotomayor and Breyer, criticized the Court’s increased reliance on the “shadow docket” as “unreasoned, inconsistent, and impossible to defend.”3 3.Whole Woman’s Health, 141 S. Ct. at 2500 (Kagan, J., dissenting).Show More Weeks later, Justice Alito responded in a speech, rebuking critics of the “shadow docket” as wanting to “portray the [C]ourt as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”4 4.Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadow-docket-scotus.html [https://perma.cc/2NNB-5QX3].Show More

If the goal of using the term “shadow docket” was to draw attention to a heretofore obscure area of the Supreme Court’s business, it worked.5 5.See Ellena Erskine, Senators Spar Over Shadow Docket in Wake of Court’s Order Allowing Texas Abortion Law to Take Effect, SCOTUSblog (Sept. 29, 2021, 8:20 PM), https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect [https://perma.cc/6MND-KJYR] (quoting Senator Ted Cruz as saying: “Shadow docket, that is ominous. Shadows are really bad, like really, really bad” (internal quotation marks omitted)); Liptak, supra note 4.Show More To be sure, some prior emergency applications have been consequential and attention-grabbing, such as the injunction ordering a halt to the Nixon administration’s bombing in Cambodia in 1973.6 6.Burt Neuborne, I Fought the Imperial Presidency, and the Imperial Presidency Won, ACLU (Sept. 27, 2019), https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won [https://perma.cc/JY8K-KRVN].Show More But those were rare. No longer. The last several years have seen an explosion of commentary about the shadowy emergency docket in settings ranging from academic articles7 7.E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate its Lawless Shadow Docket, 74 Admin. L. Rev. 1 (2022); Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Pub. Pol’y 827 (2021); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019).Show More to tweets,8 8.E.g., Leah Litman (@LeahLitman), Twitter (Feb. 23, 2023, 1:25 PM), https://twitter.com/‌LeahLitman/status/1628823350092124161 [https://perma.cc/2CR9-RPQP] (tweet quoting Professor Steve Vladeck who, in a video previewing his book on the shadow docket, says: “[T]he Court is regularly using and abusing the Shadow Docket in ways that directly affect all of us”).Show More blogs,9 9.E.g., Symposium on the Supreme Court’s Shadow Docket, SCOTUSblog (Oct. 2020), https://www.scotusblog.com/category/special-features/symposium-on-the-supreme-courts-shadow-docket [https://perma.cc/44DB-V4K7]; Harry Isaiah Black & Alicia Bannon, The Supreme Court ‘Shadow Docket,’ Brennan Ctr. for Just. (July 19, 2022), https://www.brennan‌center.org/our-work/research-reports/supreme-court-shadow-docket [https://perma.cc/C2K‌H-T6F4].Show More legal podcasts,10 10.E.g., Jeffrey Rosen, We the People, The Supreme Court’s “Shadow Docket,” Nat’l Const. Ctr. (Oct. 7, 2021), https://constitutioncenter.org/news-debate/podcasts/the-supreme-courts-shadow-docket [https://perma.cc/L9D2-TZRV].Show More news articles,11 11.E.g., Liptak, supra note 4; Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, ABA (Apr. 14, 2021), https://www.american‌bar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-s‌hadow-docket-under-review-by-house-reps [https://perma.cc/92RL-W7B7]; Steve Vladeck, Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming, Slate (Feb. 8, 2022, 4:32 PM), https://slate.com/news-and-politics/2022/02/the-supreme-courts-shadow-docket-rulings-kee‌p-getting-worse.html [https://perma.cc/SQ83-2JZ9]; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM) [hereinafter Vladeck, Partisan Decisions], https://slate.com/news-and-politics/2020/08/sup‌reme-court-shadow-docket.html [https://perma.cc/TB24-H3MX]; Lydia Wheeler, US Supreme Court ‘Shadow Docket’ Quieter So Far This Term, Bloomberg L. (Dec. 27, 2022, 4:45 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X4VOEVIO0‌00000?bna_news_filter=us-law-week#jcite [https://perma.cc/DL7R-HWCG].Show More and even congressional hearings.12 12.E.g., Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the S. Comm. on the Judiciary, 117th Cong. (2021) (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law), https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf [https://perma.cc/6MUZ-S24D].Show More

Why? Two reasons have moved front and center. The first implicates the supposedly “shadowy” bit of the treatment of emergency applications. The accusation leveled by detractors is that the Justices are making increasing use of the emergency docket to issue consequential rulings on matters ranging from redistricting plans13 13.E.g., Merrill v. Milligan, 142 S. Ct. 879 (2022).Show More to immigration policy14 14.E.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam).Show More to COVID regulations,15 15.E.g., Chrysafis v. Marks, 141 S. Ct. 2482 (2021).Show More and, of course, abortion. The resulting orders, critics claim, can have precedential value16 16.This is so even though they are not formally precedential. See, e.g., 1A, Remaking America: The Supreme Court, the Shadow Docket, and America’s Trust, NPR, at 11:38 (Apr. 25, 2022, 3:53 PM), https://www.npr.org/2022/04/25/1094620949/remaking-america-the-supreme-court-the-shadow-docket-and-americas-trust [https://perma.cc/BVM8-UAV6]; Alex Badas, Billy Justus & Siyu Li, Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy, 43 Just. Sys. J. 609, 612–14, 21 (2022); McFadden & Kapoor, supra note 7, at 830–31.Show More—even though the Justices received only minimal briefing, did not have the benefit of oral arguments, and resolved the matter in days (not the many months that “merits” decisions receive) in orders with almost no rationale.

The complaint that judges are issuing decisions without reasons and, therefore, undermining rule-of-law values and the development of precedent is not new.17 17.For analyses of judicial avoidance, see, e.g., Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 18–19 (2016); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667, 1676, 1680–84 (2005).Show More But that complaint is often about judges doing less work than detractors would like them to.18 18.E.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 L. & Contemp. Probs. 157, 173 (1998). To quote Justice Frankfurter on the matter of emergency docket decisions and why they are given limited attention: “If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive . . . .” Maryland v. Balt. Radio Show, Inc., 338 U.S. 912, 918 (1950) (Frankfurter, J., respecting denial of certiorari).Show More The claim in the shadow-docket drama is different. It is not that the Justices are being lazy. It is that the conservative Justices have devised a sneaky technique to make big decisions that end up having precedential value in secret.

Which brings us to the second explanation for the growing attention—and concern—over the shadow docket: brute politics. The division between Justices Alito and Kagan is not happenstance. Because it seems that many “emergency rulings” have favored conservative causes, liberals have decried the emergency docket as a dangerous, politically expedient tool that the conservative majority has exploited to advance its partisan and ideological commitments.19 19.See Black & Bannon, supra note 9; Vladeck, Partisan Decisions, supra note 11; Damon Root, Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket,’ Reason (July 20, 2022, 11:58 AM), https://reason.com/2022/07/20/elena-kagans-valid-critique-of-the-supreme-courts-shadow-docket [https://perma.cc/LHW9-9QKM] (“[C]omplaints about the shadow docket have mostly come from liberal legal experts and activists. . . . Put simply, the Supreme Court’s recent spate of high-profile emergency interventions have largely aligned with conservative policy preferences.”); David S. Cohen, The Supreme Court’s ‘Shadow Docket’ Is Even Shadier than It Sounds, Rolling Stone (Apr. 10, 2022), https://www.rollingstone.com/politics/political-commentary/supreme-court-shadow-docket-conservative-agenda-1335473 [https://perma.cc/D3YF-D32C] (“[T]his ultraconservative Supreme Court is exploiting a mechanism that used to be reserved for the most emergent matters that come to the Court to further stamp its right-wing view on American law and society.”); Kimberly Strawbridge Robinson, Supreme Court Conservatives Want More Robust ‘Shadow Docket,’ Bloomberg L. (July 8, 2022, 12:51 PM), https://news.bloomberglaw.com/us-law-week/supreme-courts-conservatives-want-more-robu‌st-shadow-docket [https://perma.cc/EKB4-9K2K] (quoting Kimberly Humphrey, Federal Courts Legal Director for Alliance for Justice: “What stands out is that . . . conservative interests are the big winners when the Court grants emergency relief . . . .” (internal quotation marks omitted)).Show More To (liberal) detractors, the order upholding the Texas abortion ban is a prime example. Because the ruling contravened the then “superprecedent” of Roe v. Wade,20 20.410 U.S. 113 (1973); Jeffrey Rosen, So, Do You Believe in ‘Superprecedent’?, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/weekinreview/so-do-you-believe-in-superprecedent.html [https://perma.cc/DG75-DUCP].Show More critics argue that the Court should have refrained from issuing an unreasoned “emergency” order without the benefit of full briefing and arguments.21 21.See Claire Hansen, Supreme Court Order on Texas Abortion Ban Puts ‘Shadow Docket’ in the Spotlight, U.S. News & World Rep. (Sept. 3, 2021), https://www.usnews.com/‌news/national-news/articles/2021-09-03/supreme-court-order-on-texas-abortion-ban-puts-shadow-docket-in-the-spotlight [https://perma.cc/YF6N-K7JU].Show More

The rebuttal is straightforward: however arresting the metaphor of the “shadow docket,” there is reason to be skeptical of it. As an initial matter, especially salient emergency applications, such as those over abortion and COVID, represent but a tiny fraction of the emergency docket.22 22.Even the staunchest critics of the shadow docket acknowledge this point. See Paul LeBlanc, Here’s What the ‘Shadow Docket’ Is and How the Supreme Court Uses It, CNN (Apr. 7, 2022, 9:24 AM), https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html [https://perma.cc/9UNS-U27Y] (quoting Steve Vladeck as saying: “[The emergency] orders are unsigned and they’re unexplained, and 99% of the time we don’t care because they’re also entirely anodyne”).Show More The vast majority of applications are far less consequential administrative requests (such as applications for deadline extensions) that do not require the Court’s full consideration. These applications, the argument goes, lack a political dimension, and even for the few with political shadings (e.g., abortion and immigration), the Justices are not partisan or ideological in response; they are simply dealing with cases that “might really be emergencies.”23 23.Mark Rienzi, The Supreme Court’s “Shadow” Docket—A Response to Professor Vladeck, Nat’l Rev. (Mar. 16, 2021, 1:30 PM) (emphasis omitted), https://www.nationalrevi‌ew.com/bench-memos/the-supreme-courts-shadow-docket-a-response-to-professor-vladeck [https://perma.cc/5X72-U5W4]; see also Nina Totenberg, Justice Alito Calls Criticism of the Shadow Docket ‘Silly’ and ‘Misleading,’ NPR (Sept. 30, 2021, 7:12 PM), https://www.npr.org/2021/09/30/1042051134/justice-alito-calls-criticism-of-the-shadow-docket-silly-and-misleading [https://perma.cc/76KS-LHEF] (quoting Justice Alito: “‘The truth of the matter . . .  is that there is nothing shadowy’ or really new about the process”); Melissa Quinn, Amy Coney Barrett Says Supreme Court Justices Aren’t “Partisan Hacks,” CBS News (Sept. 13, 2021, 9:01 AM), https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-justices-partisan-hacks [https://perma.cc/R983-D3AK] (quoting Justice Barrett shortly after the Court issued emergency rulings in which the three Democrats were in dissent: “[My goal] is to convince you that this court is not comprised of a bunch of partisan hacks” (internal quotation marks omitted)).Show More

Further, in response to accusations of nefarious behavior by the conservative Justices, it seems reasonable to point out the conservatives have a six-person majority. Do they really need to hide their reasoning in the shadows to make ultra-right-wing decisions? The conservatives have not exactly been shy in giving reasons for their decisions unmaking old precedent.24 24.See Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative [https://perma.cc/3KJP-UZU4].Show More One of the liberal complaints about the current Court, in fact, has been that the Court’s conservative majority has thrown caution to the wind and is overturning well-respected superprecedent with nary a thought.25 25.See Nicholas Goldberg, Column: After the Supreme Court Overturns Roe vs. Wade, What’ll It Do for an Encore?, L.A. Times (June 2, 2022, 3:08 AM), https://www.latimes.com/‌opinion/story/2022-06-02/supreme-court-roe-precedent-religious-liberty-federal-regulation [https://perma.cc/MV57-5TTS].Show More For these six Justices who are happy to do things in the open no matter what the public outcry, why work in the shadows? To return to abortion, that is hardly a matter on which the Court has tried to hide its views and sneak around via a back channel.26 26.The “sneaky” behavior accusation with regards to the current Court’s rulings on abortion has shown up elsewhere as well. See Michael Barbaro, The Daily, A Secret Campaign to Influence the Supreme Court, N.Y. Times, at 1:29 (Nov. 29, 2022), https://www.nytimes.com/‌2022/11/29/podcasts/the-daily/supreme-court-abortion-roe-v-wade.html [https://perma.cc/57‌WK-GJZX].Show More

So which side has the better case? Is contemporary use of the shadow docket “unreasoned, inconsistent, . . . impossible to defend,”27 27.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting).Show More and politically motivated? Or is it, as Justice Alito contends, benign and apolitical, reserved only for matters that need prompt attention? To answer these related questions, we take a different approach than other commentators who have analyzed the emergency docket. Rather than base conclusions on cherry-picked highly-salient disputes, we examine a full Term’s worth of emergency applications, that is, every application submitted to the Court in its 2021–22 Term. A caveat: our inferences are based on data from a single Term. We cannot and do not say anything about how the use of the emergency docket has changed over time in response to external factors such as the internet and recent criticism.

With the goal of assessing the objection that the emergency docket is being abused in a political fashion, we break down the cases and votes by the political perspectives of the key players (Justices and claimants). In so doing, we refrain from inserting our personal judgments about what is conservative and liberal. Instead, we use established categorization methods from the existing literature. Our objective is to offer apolitical, factually-based insights into the patterns and trends in emergency docket rulings so that the debate can be more reasoned and less ideologically driven.

From the data, three findings emerge. First, the vast majority of emergency applications are requests to extend the filing time for certiorari petitions, which the individual Justices simply grant or deny. The Justices referred only 68 (of 871 total petitions) to the full Court (hereinafter “referred applications”). In other words, the individual Justices are happy to make decisions on their own for over 90% of the applications.

Second, for the referred applications, where the Justice who looks at the matter first refers it to their colleagues for more detailed analysis, standard ideological patterns emerge. The conservative Justices usually vote in favor of conservative claims. And the liberals generally vote in favor of liberal claims. Because conservatives outnumber liberals 6-3 on the current incarnation of the Roberts Court, conservative applicants and causes fare far better than liberal applicants in these consequential (referred) applications.

Third, the data unearth a restraint-activism dimension: at conservative and liberal extremes, the Justices either promote more aggressive use of the emergency docket (if they have the majority) or resist it (if they lack a majority). So, Justices Thomas, Alito, and Gorsuch (the conservative end), use the emergency docket in service of conservative interests, while the center-conservative Justices and liberal Justices resist doing so. That is the behavior we would expect out in the open sunlight, not just in the shadows.

All in all, our analysis validates claims on both sides of the debate. Most emergency applications are benign requests, lacking an obvious ideological or partisan component. But when they are not—when they involve salient matters, such as abortion, immigration, and voting rights—the conservative Court is partial to granting conservative applications.

Is there anything “shadowy” here? Not really. The voting patterns in the emergency applications docket and in the merits docket are similar. In terms of merits determinations, this is the most conservative Court in roughly a century.28 28.For this data on merits determinations from the 2021 Term, see Lee Epstein, Andrew D. Martin & Kevin Quinn, Provisional Data Report on the 2021 Term 5–7 (2022), https://epstein.usc.edu/s/2021TermDataReport.pdf [https://perma.cc/MH5N-QCPZ].Show More That that conservatism shows up in the emergency docket as well is not surprising. It is a distressing finding if one expected neutrality in this part of the docket. But why would one expect that?

Part I introduces the emergency docket data we gathered for the 2021–22 Term. The balance of the Essay details the more important findings relating to each Justice’s handling of applications they did not refer to the full Court (Part II), Court action in referred applications (Part III), and individual Justice action in referred applications (Part IV).

One final note before we turn to the data. In the discussion that follows, we categorize the ideology of the nine Justices as a function of where they are on the spectrum between liberal or conservative. On the liberal (left) side are the three Democratic appointees (Sotomayor, Kagan, and Jackson); on the very (“ultra”) conservative end, we include Thomas, Alito, and Gorsuch. The remaining three Justices—the Chief, Kavanaugh, and Barrett—are slightly less conservative, though much closer to Thomas et al. than the liberals.29 29.See Oriana González & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (June 24, 2022), https://www.axios.com/2019/06/01/supreme-court-justices-ideology [https://perma.cc/EMR9-TBN3] (reporting, based on Martin-Quinn scores, the ranking of Justices in terms of conservatism); see also Epstein, Martin & Quinn, supra note 28, at 4.Show More

  1.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2494–96 (2021). ↑
  2.  The emergency docket goes by various names, including the “non-merits docket,” the “procedural docket,” and the “shadow docket.” Credit for originating the term “shadow docket” is generally given to an article by University of Chicago Law Professor Will Baude. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1,5 (2015). ↑
  3.  Whole Woman’s Health, 141 S. Ct. at 2500 (Kagan, J., dissenting). ↑
  4.  Adam Liptak, Alito Responds to Critics of the Supreme Court’s ‘Shadow Docket,’ N.Y. Times (Sept. 30, 2021), https://www.nytimes.com/2021/09/30/us/politics/alito-shadow-docket-scotus.html [https://perma.cc/2NNB-5QX3]. ↑
  5.  See Ellena Erskine, Senators Spar Over Shadow Docket in Wake of Court’s Order Allowing Texas Abortion Law to Take Effect, SCOTUSblog (Sept. 29, 2021, 8:20 PM), https://www.scotusblog.com/2021/09/senators-spar-over-shadow-docket-in-wake-of-courts-order-allowing-texas-abortion-law-to-take-effect [https://perma.cc/6MND-KJYR] (quoting Senator Ted Cruz as saying: “Shadow docket, that is ominous. Shadows are really bad, like really, really bad” (internal quotation marks omitted)); Liptak, supra note 4. ↑
  6.  Burt Neuborne, I Fought the Imperial Presidency, and the Imperial Presidency Won, ACLU (Sept. 27, 2019), https://www.aclu.org/issues/national-security/i-fought-imperial-presidency-and-imperial-presidency-won [https://perma.cc/JY8K-KRVN]. ↑
  7.  E.g., Richard J. Pierce, Jr., The Supreme Court Should Eliminate its Lawless Shadow Docket, 74 Admin. L. Rev. 1 (2022); Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court’s Emergency Stays, 44 Harv. J.L. & Pub. Pol’y 827 (2021); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019). ↑
  8.  E.g., Leah Litman (@LeahLitman), Twitter (Feb. 23, 2023, 1:25 PM), https://twitter.com/‌LeahLitman/status/1628823350092124161 [https://perma.cc/2CR9-RPQP] (tweet quoting Professor Steve Vladeck who, in a video previewing his book on the shadow docket, says: “[T]he Court is regularly using and abusing the Shadow Docket in ways that directly affect all of us”). ↑
  9.  E.g., Symposium on the Supreme Court’s Shadow Docket, SCOTUSblog (Oct. 2020), https://www.scotusblog.com/category/special-features/symposium-on-the-supreme-courts-shadow-docket [https://perma.cc/44DB-V4K7]; Harry Isaiah Black & Alicia Bannon, The Supreme Court ‘Shadow Docket,’ Brennan Ctr. for Just. (July 19, 2022), https://www.brennan‌center.org/our-work/research-reports/supreme-court-shadow-docket [https://perma.cc/C2K‌H-T6F4]. ↑
  10.  E.g., Jeffrey Rosen, We the People, The Supreme Court’s “Shadow Docket,” Nat’l Const. Ctr. (Oct. 7, 2021), https://constitutioncenter.org/news-debate/podcasts/the-supreme-courts-shadow-docket [https://perma.cc/L9D2-TZRV]. ↑
  11.  E.g., Liptak, supra note 4; Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, ABA (Apr. 14, 2021), https://www.american‌bar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-s‌hadow-docket-under-review-by-house-reps [https://perma.cc/92RL-W7B7]; Steve Vladeck, Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming, Slate (Feb. 8, 2022, 4:32 PM), https://slate.com/news-and-politics/2022/02/the-supreme-courts-shadow-docket-rulings-kee‌p-getting-worse.html [https://perma.cc/SQ83-2JZ9]; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM) [hereinafter Vladeck, Partisan Decisions], https://slate.com/news-and-politics/2020/08/sup‌reme-court-shadow-docket.html [https://perma.cc/TB24-H3MX]; Lydia Wheeler, US Supreme Court ‘Shadow Docket’ Quieter So Far This Term, Bloomberg L. (Dec. 27, 2022, 4:45 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X4VOEVIO0‌00000?bna_news_filter=us-law-week#jcite [https://perma.cc/DL7R-HWCG]. ↑
  12.  E.g., Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket: Hearing Before the S. Comm. on the Judiciary, 117th Cong. (2021) (testimony of Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law), https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf [https://perma.cc/6MUZ-S24D]. ↑
  13.  E.g., Merrill v. Milligan, 142 S. Ct. 879 (2022). ↑
  14.  E.g., Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (per curiam). ↑
  15.  E.g., Chrysafis v. Marks, 141 S. Ct. 2482 (2021). ↑
  16.  This is so even though they are not formally precedential. See, e.g., 1A, Remaking America: The Supreme Court, the Shadow Docket, and America’s Trust, NPR, at 11:38 (Apr. 25, 2022, 3:53 PM), https://www.npr.org/2022/04/25/1094620949/remaking-america-the-supreme-court-the-shadow-docket-and-americas-trust [https://perma.cc/BVM8-UAV6]; Alex Badas, Billy Justus & Siyu Li, Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy, 43 Just. Sys. J. 609, 612–14, 21 (2022); McFadden & Kapoor, supra note 7, at 830–31. ↑
  17.  For analyses of judicial avoidance, see, e.g., Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 18–19 (2016); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667, 1676, 1680–84 (2005). ↑
  18.  E.g., Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 L. & Contemp. Probs. 157, 173 (1998). To quote Justice Frankfurter on the matter of emergency docket decisions and why they are given limited attention: “If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive . . . .” Maryland v. Balt. Radio Show, Inc., 338 U.S. 912, 918 (1950) (Frankfurter, J., respecting denial of certiorari). ↑
  19.  See Black & Bannon, supra note 9; Vladeck, Partisan Decisions, supra note 11; Damon Root, Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket,’ Reason (July 20, 2022, 11:58 AM), https://reason.com/2022/07/20/elena-kagans-valid-critique-of-the-supreme-courts-shadow-docket [https://perma.cc/LHW9-9QKM] (“[C]omplaints about the shadow docket have mostly come from liberal legal experts and activists. . . . Put simply, the Supreme Court’s recent spate of high-profile emergency interventions have largely aligned with conservative policy preferences.”); David S. Cohen, The Supreme Court’s ‘Shadow Docket’ Is Even Shadier than It Sounds, Rolling Stone (Apr. 10, 2022), https://www.rollingstone.com/politics/political-commentary/supreme-court-shadow-docket-conservative-agenda-1335473 [https://perma.cc/D3YF-D32C] (“[T]his ultraconservative Supreme Court is exploiting a mechanism that used to be reserved for the most emergent matters that come to the Court to further stamp its right-wing view on American law and society.”); Kimberly Strawbridge Robinson, Supreme Court Conservatives Want More Robust ‘Shadow Docket,’ Bloomberg L. (July 8, 2022, 12:51 PM), https://news.bloomberglaw.com/us-law-week/supreme-courts-conservatives-want-more-robu‌st-shadow-docket [https://perma.cc/EKB4-9K2K] (quoting Kimberly Humphrey, Federal Courts Legal Director for Alliance for Justice: “What stands out is that . . . conservative interests are the big winners when the Court grants emergency relief . . . .” (internal quotation marks omitted)). ↑
  20.  410 U.S. 113 (1973); Jeffrey Rosen, So, Do You Believe in ‘Superprecedent’?, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/weekinreview/so-do-you-believe-in-superprecedent.html [https://perma.cc/DG75-DUCP]. ↑
  21.  See Claire Hansen, Supreme Court Order on Texas Abortion Ban Puts ‘Shadow Docket’ in the Spotlight, U.S. News & World Rep. (Sept. 3, 2021), https://www.usnews.com/‌news/national-news/articles/2021-09-03/supreme-court-order-on-texas-abortion-ban-puts-shadow-docket-in-the-spotlight [https://perma.cc/YF6N-K7JU]. ↑
  22.  Even the staunchest critics of the shadow docket acknowledge this point. See Paul LeBlanc, Here’s What the ‘Shadow Docket’ Is and How the Supreme Court Uses It, CNN (Apr. 7, 2022, 9:24 AM), https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html [https://perma.cc/9UNS-U27Y] (quoting Steve Vladeck as saying: “[The emergency] orders are unsigned and they’re unexplained, and 99% of the time we don’t care because they’re also entirely anodyne”). ↑
  23.  Mark Rienzi, The Supreme Court’s “Shadow” Docket—A Response to Professor Vladeck, Nat’l Rev. (Mar. 16, 2021, 1:30 PM) (emphasis omitted), https://www.nationalrevi‌ew.com/bench-memos/the-supreme-courts-shadow-docket-a-response-to-professor-vladeck [https://perma.cc/5X72-U5W4]; see also Nina Totenberg, Justice Alito Calls Criticism of the Shadow Docket ‘Silly’ and ‘Misleading,’ NPR (Sept. 30, 2021, 7:12 PM), https://www.npr.org/2021/09/30/1042051134/justice-alito-calls-criticism-of-the-shadow-docket-silly-and-misleading [https://perma.cc/76KS-LHEF] (quoting Justice Alito: “‘The truth of the matter . . .  is that there is nothing shadowy’ or really new about the process”); Melissa Quinn, Amy Coney Barrett Says Supreme Court Justices Aren’t “Partisan Hacks,” CBS News (Sept. 13, 2021, 9:01 AM), https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-justices-partisan-hacks [https://perma.cc/R983-D3AK] (quoting Justice Barrett shortly after the Court issued emergency rulings in which the three Democrats were in dissent: “[My goal] is to convince you that this court is not comprised of a bunch of partisan hacks” (internal quotation marks omitted)). ↑
  24.  See Nina Totenberg, The Supreme Court Is the Most Conservative in 90 Years, NPR (July 5, 2022, 7:04 AM), https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative [https://perma.cc/3KJP-UZU4]. ↑
  25.  See Nicholas Goldberg, Column: After the Supreme Court Overturns Roe vs. Wade, What’ll It Do for an Encore?, L.A. Times (June 2, 2022, 3:08 AM), https://www.latimes.com/‌opinion/story/2022-06-02/supreme-court-roe-precedent-religious-liberty-federal-regulation [https://perma.cc/MV57-5TTS]. ↑
  26.  The “sneaky” behavior accusation with regards to the current Court’s rulings on abortion has shown up elsewhere as well. See Michael Barbaro, The Daily, A Secret Campaign to Influence the Supreme Court, N.Y. Times, at 1:29 (Nov. 29, 2022), https://www.nytimes.com/‌2022/11/29/podcasts/the-daily/supreme-court-abortion-roe-v-wade.html [https://perma.cc/57‌WK-GJZX]. ↑
  27.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting). ↑
  28.  For this data on merits determinations from the 2021 Term, see Lee Epstein, Andrew D. Martin & Kevin Quinn, Provisional Data Report on the 2021 Term 5–7 (2022), https://epstein.usc.edu/s/2021TermDataReport.pdf [https://perma.cc/MH5N-QCPZ]. ↑

  29.  See Oriana González & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (June 24, 2022), https://www.axios.com/2019/06/01/supreme-court-justices-ideology [https://perma.cc/EMR9-TBN3] (reporting, based on Martin-Quinn scores, the ranking of Justices in terms of conservatism); see also Epstein, Martin & Quinn, supra note 28, at 4. ↑

Dynamic Tort Law: Review of Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History

Rarely does a book—let alone one on torts—come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again while teaching torts and probing new research projects. With Tort Law and the Construction of Change, Professors Kenneth Abraham and G. Edward White, who have inspired generations of torts students and scholars,1 1.As UVA Law Dean Risa Goluboff remarked at the UVA Law book panel Festschrift for Professors Abraham and White:[They] have been anchors of this faculty for a long time, maybe longer than you realize. They have been on this faculty for a combined total of nearly 90 years, both of them spending most of their professional lives here . . . . Over the past 10 years or so, they have both taught torts to generations of UVA Law students among other things.Transcript of UVA Law Book Panel at 2 (Sept. 22, 2022) (on file with the Virginia Law Review) [hereinafter Transcript].Show More have truly energized and inspired this nearly twenty-year veteran in the field.

Abraham and White explore the past, present, and future of tort law through a historical, theoretical, and pragmatic lens seeking to excavate and explicate how doctrines evolve. Their central thesis is that “[c]ontinuity arises in part out of linking current decisions, even if they are innovative and constitute an expansion of liability, to the principles expressed or implied in prior precedents,”2 2.Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History 206 (2022).Show More and that “external pressure for change in established common law doctrines is almost always filtered through received doctrinal frameworks.”3 3.Id. at 213.Show More I pay tribute to their book in this Essay, with equal parts praise (Part I), quibbling (Part II), and prodding for roads not taken (Part III).4 4.Here, I build upon remarks I made at the UVA Law book panel. See Transcript, supra note 1, at 13 (“I have three points I want to make. The first is going to be some praise. There’s a lot that’s praiseworthy in the book. The second is going to be a quibble, and the third is going to be a thought about the future.”).Show More

  1.  As UVA Law Dean Risa Goluboff remarked at the UVA Law book panel Festschrift for Professors Abraham and White:

    [They] have been anchors of this faculty for a long time, maybe longer than you realize. They have been on this faculty for a combined total of nearly 90 years, both of them spending most of their professional lives here . . . . Over the past 10 years or so, they have both taught torts to generations of UVA Law students among other things.

    Transcript of UVA Law Book Panel at 2 (Sept. 22, 2022) (on file with the Virginia Law Review) [hereinafter Transcript]. ↑

  2.  Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History 206 (2022). ↑
  3.  Id. at 213. ↑
  4. Here, I build upon remarks I made at the UVA Law book panel. See Transcript, supra note 1, at 13 (“I have three points I want to make. The first is going to be some praise. There’s a lot that’s praiseworthy in the book. The second is going to be a quibble, and the third is going to be a thought about the future.”). ↑

Harmonizing Federal Immunities

When a federal employee is charged with a state crime based on conduct that was within their official responsibilities, the United States Constitution protects them from prosecution through Supremacy Clause immunity. This immunity was developed by the Supreme Court in a small set of cases from around the turn of the twentieth century, but no Supreme Court cases have mentioned it since. Generally, as lower courts have construed it, it is a highly protective standard. This Note questions that standard by attempting to re-align Supremacy Clause immunity with another federal immunity that also derives from the Supremacy Clause: federal tax immunity. Until the mid-twentieth century, federal tax immunity cases protected the federal government from almost any state-tax-related burdens, even indirect ones. But in 1937, the Supreme Court abruptly changed course and overruled a century of its previous precedents. As a result, federal tax immunity today has only a shadow of its previous force. In relating these two immunities to each other, this Note aims to shine light on Supremacy Clause immunity as a doctrine based on an outdated conception of the role of federal courts in our federalist system. It ties the Court’s shift in federal tax immunity to a broader philosophical transformation that also appeared in other doctrines, like those governing the application of the Tenth Amendment and preemption. And it shows that Supremacy Clause immunity as it currently stands is the sour note in an otherwise consistent harmony of federalist relationships.

Introduction

In two disconnected and hypothetical1 1.Only partially hypothetical, one is in Idaho. SeeIdaho v. Horiuchi, 253 F.3d 359, 363–64 (9th Cir. 2001).Show More locations, two government officers in performance of their duties run afoul of a state criminal law. One is an FBI sniper who takes an arguably unjustified shot at a fleeing man and kills an innocent bystander. The other is a state police officer who, facing the same situation, makes the same tragic error. Both officers are charged with a crime: involuntary manslaughter. Assuming all relevant facts are parallel between the two scenarios, does the law dictate that the state police officer should stand trial while the federal officer is held to be immune from prosecution? More generally, given the structure of our federalist system and the text, purpose, and history of the United States Constitution, how often should it be the case that a federal officer is immune from state criminal prosecution despite the fact that a state officer would be held to be culpable for doing the very same thing?

Courts tell us that this question is answered by the Constitution’s Supremacy Clause.2 2.U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).Show More But the Supreme Court has not been generous with its guidance. The concept of federal officer immunity from state criminal prosecution was first explored in In re Neagle,3 3.135 U.S. 1, 62 (1890).Show More but although that case is memorable for its remarkably dramatic set of facts,4 4.See id.at 45 (“As [the former Chief Justice] was about leaving the room, . . . he succeeded in drawing a bowie-knife, when his arms were seized by a deputy marshal and others present to prevent him from using it, and they were able to wrench it from him only after a severe struggle.”).Show More it is well over a century old and offers little in the way of specifics. After an initially rapid development, Supremacy Clause immunity has remained entirely untouched by the Supreme Court since 1920, and it has arisen in lower federal courts only sporadically during that intervening century. Though no clear legal standard has emerged, the doctrine has generally been construed to offer sweeping immunity to federal employees who commit state crimes, as long as their actions bore some relationship to their federal duties.5 5.The standard that has developed in lower courts is discussed in Subsection I.B, infra.Show More

Despite its infrequent appearance in federal courts, Supremacy Clause immunity may have unexpected contemporary significance. Scholars have pointed out that the historical periods when it is most likely to arise are times when there are strong political tensions between state and federal governments.6 6.See Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2232 (2003) (stating that Supremacy Clause immunity tends to arise “around historical moments of significant friction between the federal government and the States”).Show More In areas as disparate as electoral policy,7 7.Nick Corasaniti & Reid J. Epstein, A Voting Rights Push, as States Make Voting Harder, N.Y. Times (Jan. 11, 2022), https://www.nytimes.com/2022/01/11/us/politics/biden-voting-rights-state-laws.html [https://perma.cc/39MC-2PR7] (describing that eighteen states are passing laws containing “a host of new voting restrictions” while Democrats in Congress try to pass a bill prohibiting state laws with those very types of restrictions).Show More public health,8 8.See Nancy J. Knauer, The COVID-19 Pandemic and Federalism: Who Decides?, 23 N.Y.U. J. Legis. & Pub. Pol’y 1, 8 (2020) (arguing that the current federal-state collaborative approach to pandemic response “left the federal government ill-prepared to respond to the COVID-19 pandemic because of conflicting priorities”); James G. Hodge, Jr., Federal vs. State Powers in Rush to Reopen Amid Coronavirus Pandemic, Just Sec. (Apr. 27, 2020), https://www.justsecurity.org/69880/federal-vs-state-powers-in-rush-to-reopen-amid-corona‌virus-pandemic/ [https://perma.cc/62LX-4B2G] (“[T]he novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills.”).Show More immigration,9 9.SeeArizona v. United States, 567 U.S. 387, 416 (2012) (holding, in a suit filed by the United States seeking an injunction against the enforcement of Arizona law, that the law providing for state enforcement of federal immigration policy was preempted).Show More and law enforcement,10 10.Compare H.R. 1280, 117th Cong. § 102 (2021) (limiting defense of qualified immunity in suits against law enforcement officers), with Iowa Code § 670.4A (2023) (reinforcing defense of qualified immunity as a matter of Iowa state law).Show More now is such a time. It is thus unsurprising that a federal circuit court was recently presented with a Supremacy Clause immunity claim in a case that evokes the broader public debate about immunity from suit for law enforcement officers.11 11.See Virginia v. Amaya, No. 1:21-cr-91, 2021 WL 4942808 (E.D. Va. Oct. 22, 2021), appeal dismissed, 2022 WL 1259877 (4th Cir. Apr. 25, 2022). The Fourth Circuit dismissed the case after a newly elected attorney general ceased pursuing the appeal. Tom Jackman, Va. Attorney General Miyares Ends Prosecution of U.S. Park Police Officers in Ghaisar Case, Wash. Post (Apr. 22, 2022, 7:51 PM), https://www.washingtonpost.com/dc-md-va/2022/04/‌22/ghaisar-case-dismissed/ [https://perma.cc/89CT-6YD2].Show More And any abstract conjecture about the doctrine’s relevance is cemented by ongoing conversations about Georgia’s potential prosecution of former President Trump for attempting to illegally influence vote counts in the aftermath of the 2020 election, and the possibility that he will invoke Supremacy Clause immunity.12 12.SeeNorman Eisen et al., Fulton County, Georgia’s Trump Investigation: An Analysis of the Reported Facts and Applicable Law 216–52 (2022).Show More That prosecution, were it to occur, would also provide the most likely avenue for Supremacy Clause immunity to finally reappear in the Supreme Court.

This Note approaches Supremacy Clause immunity from a novel perspective. Others have compared it to qualified immunity and preemption,13 13.Waxman & Morrison, supra note 6, at 2241.Show More but no one has attempted to untangle the relationship between Supremacy Clause immunity and federal tax immunity, a doctrine based on the same clause of the Constitution and which serves the same purpose: protecting the functioning of the federal government from state obstruction. Since the seminal case McCulloch v. Maryland,14 14.17 U.S. (4 Wheat.) 316, 395 (1819).Show More the Court has spoken relatively frequently about federal tax immunity,15 15.See, e.g., Graves v. New Yorkex rel. O’Keefe, 306 U.S. 466, 477 (1939) (stating that federal immunity from state taxation extends to corporations owned and controlled by the government).Show More and the doctrine it has expounded provides helpful illumination for contemporary attempts to understand the scope of Supremacy Clause immunity. The comparison yields a surprising conclusion: viewed in light of federal tax immunity, the approach that lower courts have been taking to Supremacy Clause immunity appears decidedly anachronistic. In fact, Supremacy Clause immunity as it currently exists is entirely inconsistent with the understanding of the Supremacy Clause that underlies every related constitutional doctrine. Neagle arose at a time when the Court’s perception of its own power to override state laws was at its zenith.16 16.SeeStephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 801 (1994) (characterizing the turn of the century as a “double shift in the direction of enhanced federal power” based on the Court’s overturning state laws as either preempted or unconstitutional under the Dormant Commerce Clause).Show More But in the last century, that has changed. As a result, the Court’s analysis of federal tax immunity has shifted dramatically, as has the doctrine of preemption.

These concurrent shifts demonstrate the Supreme Court’s adoption of a theory of government called “process federalism,”17 17.SeeWilliam Marshall, American Political Culture and the Failures of Process Federalism, 22 Harv. J.L. & Pub. Pol’y 139, 147–48 (1998); Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1350 (2001).Show More which was proposed by Professor Herbert Wechsler in a highly influential mid-century Article.18 18.Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546 (1954).Show More Wechsler’s analysis focused on the judiciary’s role in protecting states from the federal government, for example by invalidating federal actions as infringing on the powers of the states.19 19.Id.at 558–60.Show More He argued that the judiciary’s role in this area was limited.20 20.Id. at 560.Show More In his view, if the matter were left to Congress, states’ interests would naturally be accommodated based on their role in Congress’s structure and composition.21 21.Id.at 547.Show More Other scholars later related Wechsler’s theory to doctrines that pointed in the other direction, and concluded that courts should also decline to invalidate state action as obstructing the federal government without explicit congressional direction.22 22.Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682, 695, 712–13 (1976).Show More Otherwise the judiciary is inclined to be overprotective of the federal government and deaf to states’ concerns.

Jurisprudential shifts in both federal tax immunity and preemption reveal the Supreme Court’s wholesale embrace of this state-protective spin on process federalism. In each of these areas the Court previously nullified state action on a constitutional basis whenever it perceived a conflict between federal and state interests. But it now only invalidates the state law if it perceives congressional intent to do so.23 23.See discussion infra Section III.B.Show More Supremacy Clause immunity has escaped this treatment, and as it currently stands, it remains irreconcilable with the theoretical underpinnings of other Supremacy Clause-derived doctrines. In cases where federal officers claim Supremacy Clause immunity, federal judges still routinely refuse to enforce state criminal law based only on their own perceptions of conflict between federal and state interests, and without any reference to congressional intent. The legal standard these cases apply is no longer consistent with the Supreme Court’s understanding of the Supremacy Clause generally, even if it is reasonably derived from the scarce text of the Court’s century-old Supremacy Clause immunity cases.

This Note proceeds in four parts to propose a new approach to evaluating claims of Supremacy Clause immunity. Part I charts the origin of Supremacy Clause immunity in a string of turn-of-the-century Supreme Court cases and its subsequent development in circuit courts. Part II rejects an approach to Supremacy Clause immunity that has grown in influence in more recent cases and which has engendered some scholarly support: defining Supremacy Clause immunity through analogy to qualified immunity. Part III argues that a more appropriate comparison can be made to a closely analogous doctrine, federal tax immunity, and it describes the development of that doctrine and establishes its relationship to process federalism. Finally, Part IV applies the analysis to Supremacy Clause immunity and explores some of its implications.

  1. Only partially hypothetical, one is in Idaho. See Idaho v. Horiuchi, 253 F.3d 359, 363–64 (9th Cir. 2001). ↑
  2. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). ↑
  3. 135 U.S. 1, 62 (1890). ↑
  4. See id. at 45 (“As [the former Chief Justice] was about leaving the room, . . . he succeeded in drawing a bowie-knife, when his arms were seized by a deputy marshal and others present to prevent him from using it, and they were able to wrench it from him only after a severe struggle.”). ↑
  5. The standard that has developed in lower courts is discussed in Subsection I.B, infra. ↑
  6. See Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195, 2232 (2003) (stating that Supremacy Clause immunity tends to arise “around historical moments of significant friction between the federal government and the States”). ↑
  7. Nick Corasaniti & Reid J. Epstein, A Voting Rights Push, as States Make Voting Harder, N.Y. Times (Jan. 11, 2022), https://www.nytimes.com/2022/01/11/us/politics/biden-voting-rights-state-laws.html [https://perma.cc/39MC-2PR7] (describing that eighteen states are passing laws containing “a host of new voting restrictions” while Democrats in Congress try to pass a bill prohibiting state laws with those very types of restrictions). ↑
  8.  See Nancy J. Knauer, The COVID-19 Pandemic and Federalism: Who Decides?, 23 N.Y.U. J. Legis. & Pub. Pol’y 1, 8 (2020) (arguing that the current federal-state collaborative approach to pandemic response “left the federal government ill-prepared to respond to the COVID-19 pandemic because of conflicting priorities”); James G. Hodge, Jr., Federal vs. State Powers in Rush to Reopen Amid Coronavirus Pandemic, Just Sec. (Apr. 27, 2020), https://www.justsecurity.org/69880/federal-vs-state-powers-in-rush-to-reopen-amid-corona‌virus-pandemic/ [https://perma.cc/62LX-4B2G] (“[T]he novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills.”). ↑
  9.  See Arizona v. United States, 567 U.S. 387, 416 (2012) (holding, in a suit filed by the United States seeking an injunction against the enforcement of Arizona law, that the law providing for state enforcement of federal immigration policy was preempted). ↑
  10.  Compare H.R. 1280, 117th Cong. § 102 (2021) (limiting defense of qualified immunity in suits against law enforcement officers), with Iowa Code § 670.4A (2023) (reinforcing defense of qualified immunity as a matter of Iowa state law). ↑
  11.  See Virginia v. Amaya, No. 1:21-cr-91, 2021 WL 4942808 (E.D. Va. Oct. 22, 2021), appeal dismissed, 2022 WL 1259877 (4th Cir. Apr. 25, 2022). The Fourth Circuit dismissed the case after a newly elected attorney general ceased pursuing the appeal. Tom Jackman, Va. Attorney General Miyares Ends Prosecution of U.S. Park Police Officers in Ghaisar Case, Wash. Post (Apr. 22, 2022, 7:51 PM), https://www.washingtonpost.com/dc-md-va/2022/04/‌22/ghaisar-case-dismissed/ [https://perma.cc/89CT-6YD2]. ↑
  12. See Norman Eisen et al., Fulton County, Georgia’s Trump Investigation: An Analysis of the Reported Facts and Applicable Law 216–52 (2022). ↑
  13. Waxman & Morrison, supra note 6, at 2241. ↑
  14. 17 U.S. (4 Wheat.) 316, 395 (1819). ↑
  15. See, e.g., Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 477 (1939) (stating that federal immunity from state taxation extends to corporations owned and controlled by the government). ↑
  16. See Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 801 (1994) (characterizing the turn of the century as a “double shift in the direction of enhanced federal power” based on the Court’s overturning state laws as either preempted or unconstitutional under the Dormant Commerce Clause). ↑
  17. See William Marshall, American Political Culture and the Failures of Process Federalism, 22 Harv. J.L. & Pub. Pol’y
    139

    , 147–48 (1998); Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1350 (2001). ↑

  18. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546 (1954). ↑
  19. Id. at 558–60. ↑
  20. Id. at 560. ↑
  21. Id. at 547. ↑
  22.  Laurence H. Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682, 695, 712–13 (1976). ↑

  23. See discussion infra Section III.B. ↑

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