Shadow Docket, Labor Day politics, and swing states

Thanks for staying up late with us. Despite most of the country getting the day off. As you can tell, we are still on the clock and for good reason. And just like any weekday, it is a busy day in politics and we notice more of you are turning to the pulse for your political news. And it comes to you every night, minus the bias and with the unapologetic fact checking of both sides. We have a lot to get to tonight, including an in-depth look at something called the Shadow Docket. Have you heard of this? An eye opening look at how the nation's highest court is operating behind the scenes. Look at that and later we'll chat with battlegrounds S.E. Cupp about why these campaign visits are critical for candidates and the massive role Michigan voters have to play this year. But we begin tonight with another packed rally in Detroit on this Labor Day. If there's a playbook for politicians visiting Detroit on Labor Day is in one of those pages. And today, vice President Kamala Harris grabbing that page back in metro Detroit for her second visit in the last 30 days. Harris met with union members this morning, including the Teamsters, UAW, and AFT, and she spoke to a packed gymnasium at Northwestern High School. Now, considering it's Labor Day and with a crowd of labor unions, I bet you can guess what her speech was all about. For generations in Detroit and across our nation, the brothers and sisters of labor have stood together to righteously demand fair pay, better benefits, and safe working conditions. And let me say, every person in our nation has benefited from that work. Everywhere I go, I tell people, look, you may not be a union member. You better thank a union member. And coming up in about ten minutes, we'll have much more coverage of Vice President Harris visit to Detroit. And our expert panel with one Republican and one Democrat to break down some important context about this visit. And as we do every night on this show, we take a deep dive into an issue that affects all of us tonight. We want to talk about the United States Supreme Court and a hidden way. Laws are being decided and struck down behind closed doors. First, let's look at how the Supreme Court operates. You know, when you think of the Supreme Court, we think of the nine Supreme Court justices in their black robes hearing those oral arguments and then eventually signing on to a decision in the case and signing their names to how each justice voted. That's known as the merits docket. And it's how the court operates the vast majority of the time. But there's another area where the court does business without that same transparency or that procedure. And that's what's come to be called the shadow docket. Now, the shadow docket sounds like maybe an airport novel about a Beltway conspiracy or something. Well, in reality, it's not quite as dramatic, but it's extremely important to understand. And you might not know it, but it's been responsible for a lot of breaking news over the last few years that we've talked about on our newscast. There's been a lot of shadow docket activity over the course of the last term. Late tonight, the U.S. Supreme Court ruled that churches in California can hold indoor services during the pandemic. A major decision by the Supreme Court blocking the Biden administration's temporary ban on evictions of a deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force. The decision came in the dead of night. So tonight, we want to take a closer look at the shadow docket and how it's gone from a scheduling workaround to a hidden tool to change the law of the land. Essentially, in the shadow of darkness. The shadow docket has a real, less ominous sounding name. The orders docket is what they call it. It's the way the court handles the thousands of cases we don't see on the news. And historically, it's because those decisions were either minor or extremely time dependent, like refusal to hear a case, emergency relief petitions, delaying executions, or routine procedural matters. That's what it's supposed to be used for anyway. But over the years, that's really changed. And more recently, the court has been using the orders docket to issue more and more noteworthy rulings in really important cases. And that quickly caught people's attention and sparked the shadowy nickname that's called the Shadow Docket. As recently as ten, 20, 30 years ago, most of the emergency action that we saw from the Supreme Court involved last minute appeals in death penalty cases. And those obviously have a lot of enormous stakes for the party, for the victims, for the state trying to execute a prisoner. But they didn't tend to affect statewide and nationwide policy. That's Georgetown law professor Steve Vladeck, who quite literally wrote the book on the shadow docket. And he says it's not just academics who should be paying really close attention to this. By volume, it actually ends up being almost 99% of what the Supreme Court does is not the merits docket, but rather these unsigned, usually unexplained orders. A lot of important stuff happens in these unsigned unexplained orders. Increasingly, more and more important stuff happens through these unsigned unexplained orders. And so we who care about the Supreme Court, whether professionally or personally or both, should be paying more attention to what happens in these inscrutable, often inaccessible rulings, as the good professor alluded to there. Right now, the shadow docket is intended. Purpose was for fast paced decisions, but it's now being used for traditional cases with much heavier impact. If you're wondering what's wrong with the justices having a summer vacation, well, that's not really what's going on here. The justices still do their important work. But while under the so-called shadow docket, they don't have to sign their names to their decisions or reveal their arguments, ruling in favor or against something. And that concerning trend started within the last decade. We saw, for example, over and over again during the Trump administration that the Supreme Court would step in and grant emergency relief after lower courts had issued nationwide injunctions blocking Trump immigration policies. We saw a host of unsigned, unexplained orders from the court saying, no, no, go ahead. You should be able to carry out your immigration policies. Katie, where the arguments for doing so were grounded in some combination of deference to the executive and the sphere of immigration and hostility to nationwide injunctions. Before you pull out your dictionary to look for some synonyms here, to translate some of that legalese for you, he's basically saying the courts are being manipulated by politicians, like so many other parts of our government, modern politics has taken its toll, and the one branch of government that's supposed to be completely shielded from any political grandstanding has become a tool to get around the court's intended design. And it's not just academics who notice this trend. Connecticut Senator Richard Blumenthal raising eyebrows with a very direct question during the confirmation hearing for Justice Amy Coney Barrett back in 2020. Are you aware of the Supreme Court, as it's called shadow docket? I am. That line of questioning didn't really lead anywhere. But for a lot of people, that was really the first time they'd even heard the term. And four years later, the shadow docket is power. And impact has only grown. So what can be done to fix this? Courts need a way to quickly respond to fast moving developments, so eliminating the ability to apply for this kind of emergency relief. That can't be the answer. But at the same time, we have seen recent controversies involving several different Supreme Court justices. So it's extremely unlikely for the justices to hold each other accountable. But one thing that has been talked about is forcing the justices to disclose how they'd vote. In fact, Senator Blumenthal, who we just heard from, is one of 13 senators that sponsored the shadow Docket Sunlight Act, which would basically require the justices to treat shadow docket cases like normal ones. It's an idea that some of the justices seem open to, like Justice Elena Kagan, speaking at an event earlier this summer, the relentless, you know, bringing of these emergency petitions, makes that not the case anymore, so, you know, you might say, well, why do you doing so many of them? And that's a that's a good question. And sometimes we shouldn't. And, and I think probably we've gotten into a pattern where we're doing too many of them and encouraging more of these kinds of petitions to be brought. Because of that. The justice herself saying, maybe we shouldn't, you know, the wheels of Washington. I don't know if you know this, but they turn kind of slowly sometimes, especially when it's an issue that doesn't have money or lobbyists attached to it. So don't expect this to be wrapped up anytime soon. But in the meantime, you might be understandably concerned about Michigan Supreme Court and whether or not state laws are being decided in secret. I spoke to state Supreme Court Justice Richard Bernstein, who told me, you don't need to worry. In the end, it will be. I think that, you know, for example, our our court is incredibly transparent and open. So I don't, you know, in terms of the state Supreme Court, we don't really have a shadow docket. Our our our cases are completely open. Cases are completely transparent. And, you know, everything that we do is open and available to the public. So in terms of the state Supreme Court, we there is we don't really touch the docket. In the end, it will likely be up to the Supreme Court justices themselves to decide if they want to bring the shadow docket out of the shadows and into the light. Now, we know that was a lot, but it's important thanks to our producer, Dillon, for his homework on this deep dive. You know, this show is about information and education. And we hope perhaps we taught you something tonight. So if it would help you to hear this segment again from the top to understand it better, we always post our shows online the following day. You'll be able to find the segment and all of our segments online by scanning the QR code on your screen. And of course, you can always stream the pulse on Fox Local anytime. Well coming up, our panel will step in for some post-game analysis of Vice President Harris's visit to Detroit All right, back now with the pulse is a nonstop election cycle does continue even on Labor Day. There's no rest on the road to the white House. And today, vice President Kamala Harris, as you know, was back in town helping to break all of this down for us. Terrance Markowski, a conservative and a Trump supporter, and joining us via Skype, Congresswoman Debbie Dingell, good to see both of you. Thanks for joining us here today. Hey we said this earlier when we were testing our microphones. Congresswoman, you say you get along with a lot of people on the other side of the aisle. And so Terrance just said the same thing to me about you. And that's a good thing. We need more of that. Don't we? We do need more of it. And I love seeing Terrance. I love talking with him. We always respect each other. We exchange ideas, may not agree on everything, but we really like each other and respect each other well. We love having you here and Terrance will give you a chance to talk here in a moment. I just wanted to really get down to business here when it comes to VP Harris's visit to town. Listen this union vote is really important. There's a question that I have for you, Congresswoman. I've always wanted to ask you about this topic. You have the you have, like Sinn Fein saying, hey, we're all in with Kamala Harris. You have a lot of people in the in the kind of the upper brass say that. Do you believe that the rank and file and kind of the workers and the working class within the UAW all agree 100% and will give their support to Kamala Harris? No, I already know that that's a problem. We do not the union halls have not decided who they're going to vote for. There are a lot of Trump supporters in the union halls. There are Harris supporters in the union halls, and there are people that haven't made up their minds quite frankly, in 2016, when I told people that Donald Trump could win and then told people that was going to win, and everybody thought I was crazy, it's because I was in those unions. I was listening to the working men and women of this state, and those union halls are still making up their minds, and they are going to be what the key factors in Ingham in Michigan is for. What do you tell someone who you see in one of those union halls who's who's a Trump supporter about why you think Kamala Harris would be better for him or her? Look, I think that and this is where Terrance and I are going to disagree respectfully. I think that the Biden-Harris administration has worked very hard to bring jobs back to this country to make sure that they are supporting workers in many different ways, from lowering costs and supporting their benefits. But Donald Trump, only two weeks ago said anybody who walks on a picket line should be fired and the right of someone to strike, I think, is a basic right in this country. And that alone should be a reason why union workers should think about who they're going to support. Terrance Makowski, you heard the former president say that. How can you go back to people who are UAW workers here? The former president say that and somehow interpreted it a different way. Would you do you agree with former President Trump when he said that? Well, I think it's taken out of context. I think that there was no better president for the unions and for the workers than President Trump. I just came from Potterville earlier this week with Brian Pannebecker that we talked about who's a UAW autoworkers for Trump. There were a ton of autoworkers there. There were union workers there. Everybody I've been talking to, I've been doing events with with Brian Pannebecker and the UAW folks for Trump, the rank and file loved Donald Trump. How is it out of context when you heard Trump kind of say those punishing words about people who picket, people who who want to, you know, strike? Why do you think that that he meant something else? Well I think just by his actions and what he's done, the tariffs that he has taken away and putting on are putting back, and that showed that the NAFTA was a horrible deal. It showed that he brought businesses back to America, businesses that stayed in America under under Biden and Harris. You're going to have these these same companies again leaving Stellantis is already laying off thousands of people. The big three is going to be in trouble. They forced the hands of the UAW, forced the hands of these autoworkers to come up with these ridiculous, concessions and these these jobs, unless President Trump has brought back, are going to go overseas. I've heard it from from the folks at high ranking levels of the UAW and executives that these jobs are going to go overseas. They're going to go to Mexico. Let's talk about that concern right now to Congresswoman Debbie Dingell. You care a heck of a lot. As someone who worked in the auto for so much of your life and now of course, represent everybody in this, in this auto industry state, what do you tell someone who says, hey, I'm worried that Kamala Harris's administration could send jobs away. So I feel very strongly I agreed with Donald Trump that NAFTA was bad trade policy, and I will continue to fight for that. Both President Trump and President Biden and Harris have President Biden actually put a 100% tariff on electric vehicles coming from China? And we've all made it very clear that we cannot let China play games with trade and build plants in Mexico and then try to bring them into this country, this administration. Kamala Harris will be very clear that she is against that and will stand for it. And I want to say that, you know, Donald Trump has said, I'm going to give tax breaks to billionaires and corporations, which you did, by the way, that located overseas. I think that this administration has shown that they care about working people, making sure that they are getting the tax breaks, protecting their jobs, keeping them here, not letting our supply chain or OEMs go overseas and they walk their talk. I want to talk about spending for a moment here. You know, a lot of the inflationary period that we've been dealing with, so many economists have attributed to overspending, both from the Trump administration after Covid and the Biden administration. So many of these plans that Vice President Harris has, like the $25,000 home loans and other things would just drive up our debt. Are you worried about that at all? Look, I'm somebody that thinks that we do need to look at our spending, but these plans are also going to result in more income coming into the government, more so that as people are able to, homes are simply unaffordable right now. There are too many young people, too many working families that cannot find a home to buy, and they can't afford the rent either. We have to do something about that. But when we start to sell homes, we build them and sell them to young families, to young people. That will be property taxes that are coming in. That's going to make communities stronger. So I think we all need to work at finding places to cut and eliminate waste. But I think affordable housing is one of the most serious issues this country is facing. We only have about 30s left. So Terrence Murkowski, you have to spend money to make money is the model that so many people believe. You have to make an investment into the community. Do you agree with that? Well, absolutely. You got to make an investment in the community to bring jobs back, and that's what we need to do. Unfortunately the Green Deal that the Democrats and Biden and Harris are pushing is going to go down as the worst deal ever. But but in fairness, fact checking Kamala Harris just said the other day she is no longer pushing the green New Deal and even in 2020 said she was no longer for that or or anti-fracking measures. Well, they're they're definitely way behind what Trump had already done. And they've cut back to they got rid of the fracking. They got rid of our energy independence pushing the Green Deal. And these electric vehicles are is a waste of time. That's a waste of time and money and the UAW. And how can you as a as a worker for the UAW ever vote? Makowski, I want to say thank you for your time today, Congresswoman Debbie Dingell. Thank you as well. We appreciate both of you joining us here on the pulse tonight. Coming up, battleground host S.E. Cupp gives us more perspective and why visits to Michigan for both Trump and Harris are so critical. You're watching the pulse on Fox Welcome back to the pulse on this Labor Day. You know the Michigan people power and politics. And today kicks off another busy week of campaign stops in Michigan and across the country, even though it's a holiday. Joining us now to talk about how big of a role these visits play, someone you know. Well here at Fox two, battleground host S.E. Cupp and Battleground for those who have not had the chance to watch the show really hits on all of the issues that impact the battleground states here in the great America. And so, S.E, good to see you. Thanks for joining us here. Sure. My pleasure. So let's talk about this Kamala Harris in town. You know how important Detroit is, especially on Labor Day. This is a place we've seen Bill Clinton march on these parades. We've seen so many candidates do this. How important is it for Kamala Harris to be in Detroit on a day to honor labor? It's really important. I don't have to tell you how important labor is in Michigan. So it's I think sort of a pitch perfect event that she's planned. It's a big Democratic constituency, but it's not a constituency that Democrats can take for granted. So I think it's a really smart move. Let's talk about taking things for granted. We have this buzz that came off the DNC that so many Democrats have been excited about. You look at it on social media. I know you're keenly aware of that. It is important for Democrats or Republicans, but in this case, Democrats are really not taking anyone for granted and not feel like they have this in the bag. Hillary Clinton could teach us that cautionary tale from 2016, couldn't she? Oh, yes, it is a very sore subject among many Democrats, including inside the Hillary Clinton camp. She did not campaign in Wisconsin. She barely campaigned in Michigan. And that was not helpful for her. You can't take anything for granted, especially not a swing state, a battleground state. I remember earlier covering this year's Democratic primary in New Hampshire, where Joe Biden was not on the ballot. I heard from a lot of New Hampshire voters that that was a big mistake. Now, Kamala Harris is at the top of the ticket, so things are shifting there. But people in these states, the battleground states, the swing states, and especially very independent states, they pay attention to this. They want to feel important. They want to feel special. They want to feel like you understand their state and their issues. So these these visits really do matter. There's a reason the Kamala Harris campaign has opened 25 plus offices in North Carolina, a state that Democrats have not won since 2008. But they see it sort of within reach. And so being on the ground there, having your campaign staff, your volunteers, your surrogates there, and then you going yourself, it's so important. And Trump and Vance are doing the same, you know, JD Vance earlier I think today or yesterday said he was basically living in Wisconsin. They are very aware that being there in person really does matter. I said the other day that Donald Trump and Vance both need Lions jerseys if they want to attract a bigger base because they're spending so much time here in Detroit. One last question. We have about 30s left. You know, you're a political guru. You have millions of followers. You get this from a higher level. But for everyday dudes out there who are watching this, why would someone need to, as a politician, show up with a bunch of their supporters if they're already voting for the guy who's sitting on stage, shouldn't they be hitting the middle America that don't like them? I mean, that's an interesting point. And there's nowhere these guys shouldn't go, right? I mean, if you want to be the president of all America, you should be going everywhere. And that's true. But they are also just very aware that this election will come down to a very small number of voters in these seven swing states, and they know their time is a commodity. Their time is precious. So they have to devote most of their resources and energy to the places that it's going to matter the most. It doesn't mean that California and Texas and Kansas don't matter. They do. But you know as well as I do that these swing states I mean, it's why battleground exists because we're just covering the states that are going to decide this election. But within these states, we have bases of people, and they go right to the base to rally them. But I guess the answer to that would be SC. There's nothing like a good sound bite followed by a rabid applause. And that's what they want to hear, right? That's exactly right. That's why they have conventions as well. It's not just to nominate the candidate, it's to celebrate and be in a friendly, a friendly environment. That's why they do these rallies too. They're going to be seeing a lot more of these rallies than the states that you're covering all across the battleground. And we're going to keep watching your show. And we thank you for being a part of ours tonight. Thank you, S.E. Cupp. Sure That is the pulse on