“A public trial is the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect”*
We have all, understandably, been paying a great deal of attention to what the U. S. Supreme Court has been deciding. But as Joe Patrice reminds us, it’s important to attend to how they are making their decisions as well…
Conservative justices have spent years at war with two words. I know you’re thinking it’s something like “equal protection” or “reproductive rights,” or “basic ethics,” but let’s be serious — they already won those wars. The two words that get the conservatives riled up these days are “shadow docket.” Samuel Alito blasted the media for using the term to create the impression that the Supreme Court “is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view,” just because the Supreme Court is, in fact, deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view. Brett Kavanaugh even channeled his inner Gretchen Wieners seeking a “fetch”-esque rebrand, hoping the term “interim docket” might catch on to make the flurry of consequential constitutional decisions rammed through without briefing or written opinion seem less… shady.
Well, maybe they’re right! Maybe it is time to drop the shadow docket. Not because the Court’s aggressive abuse of the procedure is any more legitimate, but because the metaphor broke. A shadow needs something real to stand in the light, while the shadow is the smaller, murkier thing trailing behind.
But now, the shadow docket is the Supreme Court’s preferred way of doing business. The outlier is when the justices deign to respect transparency.
ProPublica set out to put numbers behind the shadow docket. Analyzing the Court’s records, and excluding simple administrative requests and capital cases that have long lived on the emergency docket, ProPublica found back in July that the shadow has overtaken the merits docket:
I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court’s modern history.
The Supreme Court issued 63 shadow orders in the term ending last year, to only 56 with argument and real, written and signed majority opinions. This year isn’t looking much better.
When the kitchen door handles more traffic than the front door, it’s just the front door now. The briefing-argument-signed-opinion routine everyone learned in school — and which underpins the judiciary’s entire claim to legitimacy — is now the side project. We shall henceforth dub the merits docket as the “transparent docket,” a quaint exhibition the justices run from October through June in between unbriefed and unexplained rulings to rewrite constitutional order.
ProPublica’s Ken B. Morales put the numbers to the Supreme Court itself:
Representatives from the Supreme Court did not respond to my questions.
You have got to hand it to the justices for their commitment to the bit.
ProPublica notes that “Every decision the court has made since July has been on its shadow docket.” Which is always true during the Court’s summer break — but historically the summer break was a “break” and not business-as-usual. These days, the Court doesn’t take summers off from deciding things, just from explaining them.
Oh, remember back in the day when Amy Coney Barrett whined about the public needing to “read the opinion.” That was before she decided well, you can’t expect us to put ourselves on the record when we blow up constitutional order!
The surge in these under-the-table orders have mostly inured to the benefit of the Trump administration. Like the Court greenlighting the president’s power to blow up and then squander millions in taxpayer funds to build vanity projects — a power we hope to see applied to One First Street soon. But Trump has suffered his share of losses through the process too, notably this month’s block on Missouri’s new gerrymander and the order upholding the injunction on Trump using the Postal Service to steal mail-in ballots.
But as much as it warms the heart of anyone who cares about constitutional order to see the Trump administration lose, this is about more than the outcome. We should have arguments and signed opinions. The Court’s power derives from its power of persuasion, as Judge J. Michael Luttig has said. An emergency stay is all well and good if issued to give the justices time to set up a proper, transparent process.
But too often these days, as Professor Vladeck notes, the supposedly “interim” order slides into de facto permanence without the Court bothering to follow up…
Eminently worth reading in full: “Supreme Court ‘Shadow’ Docket Is Now Bigger Than The Real, ‘Transparent’ One,” from @joepatrice.bsky.social in @abovethelaw.com.
Update: After publication, I received this response from an old friend…
As a retired lawyer with time on my hands, I follow the Supreme Court fairly closely. To add some context to Joe Patrice’s article, lower federal courts have issued roughly 300 preliminary injunctions/temporary restraining orders against the Trump administration. The Supreme Court has considered 32 emergency appeals (the “shadow docket”) of those orders. It has stayed 24 of the PIs/TROs. The Court has explained most of those stays, particularly over the last year, and for the rest the reasons for the Court’s action are fairly obvious.
I have been reading Supreme Court opinions for 54 years now. The old opinions were more concise, elegant, and sweeping. They often ignored counterarguments and stayed out of the weeds. The current opinions & dissents are more thorough, rigorous, and legally sophisticated. They read more like law review articles. They address the other side’s arguments. They are more tedious to read, but do a better job of explaining decisions. The Court is more transparent today than it has ever been.
Your correspondent is not (like Joe Patrice and my old friend) a lawyer, retired or otherwise. I find that, while I take my friend’s points, I still prefer a return of the balance to the more open, on the merits docket… even as I appreciate that the Administration’s “flood the zone” approach is making this difficult… In nay case, even if we look past how the Court is operating, we’re left with what they are deciding…
* Robert Reid, 1st Earl Loreburn
###
As we agree with Louis Brandeis that “sunlight is the best of disinfectants,” we might recall that it was on this date in 1967 that Thurgood Marshall was sworn in as the first African-American justice of the United States Supreme Court. Appointed by President Lyndon Johnson, Marshall had been a storied civil rights attorney and jurist (Federal Court of Appeals); he served on the highest bench from 1967 until his retirement in 1991.
Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.
— Thurgood Marshall
“Now I will tell the captains of the ships, and all the ships together”*…
Ethan Mollick has created a new site that’s fascinating in two different ways. First and most overtly, it’s a beautiful (and thorough) visualization and explanation of the ships used by the protagonists of The Iliad.
But at the same time, it is a powerful demonstration of (at least one of) the ways that AI might be useful in scholarship and education: Mollick spun up the site last month, using Claude…
In the second book of the Iliad the poet pauses on the brink of the first battle, calls on the Muses, and counts the fleet: twenty-nine contingents, forty-six captains, some 178 place-names, 1,186 ships [and by Thucydides’ reckoning, around 100,000 men]. This site puts every entry on the map, rebuilds the ships from the archaeological evidence [pictured on this site], and lets you read the lines beside the ruins they describe…
“The Catalogue of Ships” from @emollick.bsky.social.
* Homer/The Poet, The Iliad, Book 2, lines 492-3
###
As we set sail, we might recall that it was on this date in 331 BCE (long, long ago– but hundreds of years after the action described in The Iliad) that Alexander the Great and the Army of Macedon defeated King Darius III and his Persian Army in the Battle of Gaugamela, effectively the final blow to the Achaemenid Empire, resulting in its complete conquest by Alexander.
“Death is not the opposite of life, but a part of it”*…
The line between life and death has never been clear—and, as Amanda Heidt reports, modern technology blurs it further…
Jimo Borjigin never intended to study death. Back in the mid-2010s, the consciousness researcher at the University of Michigan Medical School in Ann Arbor was instead interested in circadian rhythms, the internal cycles that regulate our physical, mental, and behavioral states throughout each day. The circadian clock is a bit of a black box, Borjigin says, so to study it she and her team developed an automated system to continuously monitor neurotransmitters that regulate circadian rhythms in rats.
Over the course of her research, the scientists tracked the animals for weeks at a time, and Borjigin began to notice something unusual. A few of the animals died while under observation, and when they did, the researchers’ sensors recorded a massive and unexpected spike in serotonin for up to 30 seconds after their hearts stopped beating. In humans, serotonin dysregulation has been linked to intense hallucinations, but Borjigin didn’t know what to make of such a finding in the context of rats. Or in death. Like any good scientist, she looked to the literature.
“I was sure we must know everything there is about the death process already, but when I went looking for evidence of this serotonin spike, I found nothing,” she says. “Looking into the research on death more broadly, I was shocked at how little we truly understand about this thing that happens to every one of us.”
The experience prompted a shift in Borjigin’s research focus, and today she studies consciousness in relation to death and near-death experiences. In 2023, she and her colleagues published a contentious finding: that humans, like her rats, also experience a dramatic shift in brain activity when we die. The team monitored four comatose patients as they were taken off life support, and in two cases, detected a spike in gamma waves—the fastest type of brain wave, most active during periods of intense focus or problem solving—in a part of the brain correlated with dreaming, visual hallucinations, and altered states of consciousness. “To me, this suggests a covert consciousness that is not usually observed by bystanders who might otherwise look at a person and think they are unresponsive,” she says. “If that’s true, it definitely makes me think we need to revisit our definition of death.”
While Borjigin acknowledges that her work is preliminary, her observations and others like them show just how blurry the line between life and death has become, and how much science still stands to learn about such a pivotal event. As technological advances increasingly allow researchers to study death—including interventions that now allow for the use of so-called living cadavers in scientific research—so too have they necessitated new, oftentimes fraught conversations about the nature of death, its biological and societal underpinnings, and whether existing legal definitions are in alignment with current medical standards.
“The somewhat contentious space that we’re in right now is that we have different ways that we can say that someone is dead, and not all of them agree with each other. There are legal definitions and medical ones, social definitions, and many different religious interpretations,” says L. Syd M. Johnson, a neuroethicist at SUNY Upstate Medical University in Syracuse. “It’s a surprisingly complicated question, but that also makes this an exciting time to be considering it.”
Read on to consider whether this work is a breakthrough, “a bane for bioethicists,” or both: “How To Tell If You’re Dead” (or here) from @scattercushion.bsky.social in @nautil.us.
* Haruki Murakami
###
As we (attempt to) understand undoing, we might spare a thought for someone who crossed the threshold on this date in 1955: James Dean. An actor, he appeared in just three major films: Rebel Without a Cause (1955), East of Eden (1955), and Giant (1956), but became one of the most influential figures in Hollywood in the 1950s, and had a profound impact on cinema and popular culture.
Dean died in a traffic accident, when his 1955 Porsche 550 Spyder collided with a Ford near Cholame, California.
Actor Alec Guinness later claimed that, in a chance encounter with Dean at the Villa Capri a week before the crash, he had predicted the young actor’s death in his newly purchased sports car. In his autobiography, Guinness wrote that when Dean proudly showed him the vehicle, he found it “sinister” and recalled saying, in a voice he barely recognized, “Please, never get in it.” He then added, “It is now ten o’clock, Friday the 23rd of September, 1955. If you get in that car you will be found dead in it by this time next week.” Dean reportedly laughed and replied, “Oh, shucks! Don’t be so mean! “Author Jason Colavito argues that the story is “almost certainly Guinness’s ex post facto fabrication,” noting that at the time Guinness merely said Dean had told him that friends had begged him not to buy the car because they feared he would drive it too fast. – source
“A physicist is just an atom’s way of looking at itself”*…
Encouraged by successes in understanding black holes, theoretical physicists are applying what they’ve learned to whole universes. As Matt von Hippel explains, what they’re finding has them questioning fundamental assumptions about how physics ought to be done…
Tinkering at their desks with the mathematics of quantum space and time, physicists have discovered a puzzling conundrum. The arcane rules of quantum theory and gravity let them imagine many different kinds of universes in precise detail, enabling powerful thought experiments that in recent years have addressed long-standing mysteries swirling around black holes.
But when a group of researchers examined a universe intriguingly like our own in 2019, they found a paradox: The theoretical universe seemed to admit only a single possible state. It appeared so simple that its contents could be described without conveying even a single bit of data, not even a choice of a zero or a one. This result clashed with the fact that this type of universe should be capable of hosting black holes, stars, planets — and people. Yet all those rich details were nowhere to be seen.
“We look around, and certainly the world seems more complex than that,” said Rob Myers, a theoretical physicist at the Perimeter Institute for Theoretical Physics in Waterloo, Canada, who has not been directly involved in this research.
Physicists have good reason to trust the calculation, which builds on fundamental physical ideas. The math implies a universe with only one state; our universe is clearly not like that. Now a team of theorists has floated a possible answer. The paradoxical result occurred when physicists sought an objective description of the state of an entire universe. But a description like that might not be possible, even in principle. It implicitly assumes a universe that exists without an observer to observe it. And perhaps without observers, the complexity of the universe loses its meaning…
[von Hippel unpacks the scientific thinking that led to this conundrum. He concludes with an account of recent work by Ying Zhao that hints at a resolution…]
… Quantum mechanics requires a distinction between an observer — such as the scientist carrying out an experiment — and the system they observe. The system tends to be something small and quantum, like an atom. The observer is big and far away, and thus well described by classical physics… Perhaps an observer could do the same to these closed, impossibly simple-seeming universes?
In 2024, Zhao moved to the Massachusetts Institute of Technology, where she began to work on the problem of how to put an observer into a closed universe. She and two colleagues —Daniel Harlow and Mykhaylo Usatyuk — thought of the observer as introducing a new kind of boundary: not the edge of the universe, but the boundary of the observer themself. When you consider a classical observer inside a closed universe, all the complexity of the world returns, Zhao and her collaborators showed.
The MIT team’s paper came out at the beginning of 2025, around the same time that another group came forward with a similar idea. Others chimed in to point out connections to earlier work.
At this stage, everyone involved emphasizes that they don’t know the full solution. The paradox itself may be a misunderstanding, one that evaporates with a new argument. But so far, adding an observer to the closed universe and trying to account for their presence may be the safest path.
“Am I really confident to say that it’s right, it’s the thing that solves the problem? I cannot say that. We try our best,” Zhao said…
“Cosmic Paradox Reveals the Awful Consequence of an Observer-Free Universe,” from @quantamagazine.org.
Apposite: “Biology Might Not Be Quantum, but Its Math Is Quantumlike“
###
As we keep an eye out, we might send cosmological birthday greetings to Enrico Fermi; he was born on this date in 1901. A physicist and Nobel Laureate (1938) for his discovery of nuclear reactions brought about by slow neutrons, he is best remembered for (literally) presiding over the birth of the Atomic Age. Fermi was perhaps especially remarkable as the last “double-threat” in his field: a genius at creating both important theories and elegant experiments. As observed before (and illustrated above :), the division of labor between theorists and experimentalists has since been pretty complete.
The novelist and historian of science C. P. Snow wrote that “if Fermi had been born a few years earlier, one could well imagine him discovering Rutherford’s atomic nucleus, and then developing Bohr’s theory of the hydrogen atom. If this sounds like hyperbole, anything about Fermi is likely to sound like hyperbole.”
“Traveling booksellers balanced the need to garner sales with the specter of artful deception”*…
We noted in a post last month the extraordinary market in the 19th century U.S. for subscription books (a direct-sales approach to publishing with a long history); even after subscriptions subsided, their infrastructure– sales teams that contained an appreciable number of women– was used to sell books in locations too remote for bookstores. Livia Gershon reviews the risks and rewards of life on the road as a traveling bookseller…
In the second half of the nineteenth century, before the rise of public libraries, many people in remote parts of the United States got their hands on new books thanks to traveling salespeople. As literature scholar and archivist Jolie Braun writes, drawing on three memoirs from this era, women in that line of work had some distinct advantages but also faced serious hardships, both physical and social.
The booksellers visited homes and businesses with sample books, took orders, and then later delivered the books and collected payment. Braun writes that popular volumes included Bibles, farming and health manuals, biographies, and fiction. Ulysses S. Grant’s memoirs and the works of Mark Twain were popular choices. Many books published using this “subscription” model sold hundreds of thousands of copies.
While the vast majority of book peddlers were men, some publishers recruited women with the idea that they would be well suited to sell books on health and hygiene to female readers, and also that customers would find them sympathetic.
In an 1868 account of her work selling books across northern Illinois and Indiana, Annie Nelles Dumond described taking up the work out of necessity. She wrote that, seeking to escape a difficult childhood, she married young to a man who turned out to already have a wife and children. A second husband abandoned her. So Dumond sought ways to support herself.
When she began selling books, she wore a mourning bonnet. She acknowledged that this was deceptive but wrote that it was “almost necessary to my self-preservation that my past should not be known.”
Dumond described pride in her work’s “dissemination of light and knowledge among the masses.” By contrast, in an 1874 book on her own work as a bookseller, J. W. Likins of central California wrote that, despite knowing it was “honorable and legitimate” employment, “it seemed to me very much like begging.”
Likins, who took the job to support her family after her husband became too ill to work, wrote that some potential customers seemed curious or pitying. But a few men were angry to see a woman out on her own, demanding that she go home to take care of her family or incorrectly assuming that she was a suffragist.
More disturbingly, in a third autobiographical account Braun considers, published in 1881, a northern California peddler named Harriet Wasson Styer described a man telling her that, if she were his sister, he would murder her rather than allow her to canvass.
But much of Styer’s account suggested a fascinating experience. She recounted traveling to lumber camps and mining towns, admiring the wild landscapes, and coping with bed bugs and dirty stagecoaches.
Braun notes that all three peddlers were well aware that they were doing something many people believed was improper for a lady, but they took on the work out of a combination of necessity and a chance for adventure…
“The Women Who Sold Books Door to Door,” from @liviagershon.bsky.social in @jstordaily.bsky.social.
Pair with: “Building a Library in Wartime Paris” (“how librarians brought books to U. S. troops during World War I”)
* John Jude Garcia, American Biography, the History of Books, and the Market for Nationalism, 1800-1855
###
As we get a foot in the door, we might send grateful birthday greetings to Herman Melville; he was born on this date in 1819. A writer, he is best known for Moby-Dick (1851), Typee (1846), and his posthumously published (1924) novella Billy Budd, Sailor. The efforts of the booksellers described above notwithstanding, Melville was not well known to the public at the time of his death in 1891. But the centennial of his birth was the starting point of a Melville revival; Moby-Dick is now, of course, considered one of the Great American Novels.
You must be logged in to post a comment.