♪ >> Hello, everyone, and welcome to "Amanpour and Company."

Here's what is coming up.

In New York, Prince Harry and Meghan describing was described as a "near catastrophic cultures" involving the Paparazzi.

We explore what we know.

Then -- >> [chanting] >> The new showdown over abortion access in the United States.

We, political challenges ahead as well as how this is affecting American women today.

Then -- >> Our goal is to explain why it is crucial to be at the right side of history.

>>>> My conversation with Ukraine's Deputy Foreign Minister.

She tells me why her country must free all its territory, including Crimea.

Also ahead -- >> It just doesn't build up once the Supreme Court is handing down orders in this context.

>> An author and legal professor Stephen Vladeck tells Hari Sreenivasan how The Shadow Docket is used by the court to amass power.

♪ Announcer: "Amanpour and Company" is made possible by The Anderson Family Fund.

Sue and Edgar Wachenheim III.

Candace King Weir.

Jim Attwood and Leslie Williams.

The Family Foundation of Leila and Mickey Straus.

Mark J. Blechner.

Seton J. Melvin.

Bernard and Denise Schwartz.

Koo and Patricia Yuen, committed to bridging cultural differences in our communities.

Barbara Hope Zuckerberg.

We try to live in the moment, to not miss what is right in front of us.

At Mutual of America, we believe taking care of tomorrow can help you make the most of today.

Mutual of America Financial Group, retirement services and investments.

Additional support provided by these funders.

And by contributions to your PBS station from viewers like you.

Thank you.

♪ >> Welcome to the program everyone.

I'm sitting in Perk Christiane Amanpour.

Prince Harry and his wife Meghan, the Duchess of Sussex, are saying they were in a near catastrophic car chase in New York on Tuesday night.

A spokesman for the couple saying that they, with Meghan's mother, were pursued by a ring of highly aggressive paparazzi.

And that the chase lasted more than two hours, resulting in multiple near-collisions.

New York Mayor Eric Adams called the incident "reckless and irresponsible," although he also questioned the duration of the chase.

>> I would find it hard to believe that there was a two-hour high-speed chase.

But we will find out the exact duration of it.

If it is 10 minutes, a 10 minute chase is actually dangerous in New York City.

We have a lot of traffic, a lot of movement, a lot of people using our streets.

Any type of high-speed chase that involves something of that nature is inappropriate.

HOST: correspondent Melissa Bell joins me from Paris with the details.

Start by walking us through what exactly happened in New York last night.

MELISSA: it appears that couple was leaving this publicized function, we can see the pictures of the two of them together, she in her gold dress, there to receive an award.

It was as they left in their limousine that these incidents unfolded.

What we have managed to find out since the announcement of that news came, that they had felt threatened that they had spent two hours trying to get free of the situation, is that at no point did they themselves feel that they were in physical danger.

They were afraid, worried, it seems, for the bystanders, the people who were on the sidewalks as the Paparazzi tried dangerously to make their way towards the limousine.

It took them a couple of hours to be extricated from that situation.

But I think what matters here is how that would have felt for Prince Harry.

As you said a moment ago, we don't know exactly how long this lasted, the precise nature of what went on for the Paparazzi watching or further New York cap or at sea, but from the point of view of Harry, this is what came through in the statement to the press earlier this morning, that sense of being hounded that the couple would've had as they left the event.

HOST: You mentioned Prince Harry specifically and that is as a result of his mother's death some nearly 26 years ago in the city where you are in Paris.

I think it is one of the first things that comes to mind for anyone who when they first heard this story, even the mayor of New York spoke about that as well, that we all recall the death of Princess Diana who was being chased by Paparazzi in the streets of Paris nearly 26 years ago.

Talk about the parallels between this ordeal and the death of Harry's mother, he has been quite Expo click this.

Melissa: This is one of those things for many of us were old enough to remember, people knew exactly where they were when they heard Princess Diana had died.

He himself was a 12-year-old boy on holiday with his father.

She could buy the princess was rebuilding her life with her new dodo al-fayed.

You have to cross your mind back to the last few days of August of 1997.

The Paparazzi were in hot pursuit.

Any snippet they could get of her life, and image they could get was chased after fiercely and she herself had failed hounded for years.

We know this specifically from Prince Harry's memoir as well, he can remember as a little boy her distress at being stopped in the street by Paparazzi.

It was in that context that she comes through Paris, extreme measures taken so that she and Dodi Al fayed could leave the hotel to get to the apartment they were staying.

A decoy car was sent.

Nevertheless, the Paparazzi tracked down the car they were in.

The dangerous driving ended in those terrible moments under the bridge in Paris in the early morning of the 30 first of August, 1997.

Within a couple of hours, by the time she got to hospital, she had died.

Of course, so much time and press inquiries have been spent to get to what happened.

That would have been foremost on Prince Harry's mind.

HOST: I, too, recall exactly where I was, what day of the week it was and what time it was when Princess Diana died.

Melissa, the fear of Paparazzi is something Prince Harry has grappled all his life.

I want to play a quip from an interview he did in 2019, where he spoke about the circumstances of his mother's death.

>> Do you feel at peace in a way that, or is it still a sort of wound that festers?

>> I think probably a wound that festers.

I think being part of this family, in this role, in this job, every single time I see a camera, it Summertime I hear a click or see a flash, it takes me straight back.

In that respect, it's the worst reminder of her life as a person.

HOST: It's quite a complex relationship he has with the media.

It's clear he is the extrovert and the family and very likable and social and likes to speak with people and those who are interviewing him quite comfortably.

Talk about how he manages that natural inclination that he has, also given his history with the press and the death of his mother.

Melissa: There is something of a paradox there.

This is a young man who has chosen to leave the privileges and obligations that went with his function as a working Royal, to seek a new life in the United States, to make it on his own terms and decide on his own rules, to marry the woman of his choice and to protect her from what he saw as a media intrusion.

And instead he finds himself still, perhaps all the more so, vulnerable to what he precisely has witnessed his mother going through and he has vowed to protect his wife from.

I think it is that fragility he would have felt last night, being hounded because he has chosen to leave, and less protected because he has chosen to leave.

Very similar parallel, striking really, to what his mother went through.

What we have had is a statement from Prince Harry and Meghan Markle themselves, we have had that perspective, the idea that those two hours he felt, the fear that they felt, we have heard that account from their point of view and that is colored by precisely what has been his story.

At once a determined attempt to get away from what feet had written for him, and on the other, the inescapable reach of something that was bigger than him.

HOST: And in that statement that we read from the Sussexes, you heard them plead for these photos not to be published.

I was thinking about Diana's death of those images were shared and taken down.

Do you think there is more cautioned this time around?

Their argument would be that it incentivizes this type of action and recklessness.

Melissa: That's right.

On the one hand you could imagine that it would allow everyone to get a clear idea of what happened on the streets of Manhattan last night.

We had a sense from Prince Harry and Meghan Markle what it actually looks like and of course a lot of people would like to know about the specific details of what they went through, how long it lasted and what it looks like, how intrusive or how much danger they or bystanders might have felt themselves in.

And it is those very images stolen by the Paparazzi when they should not be trying to steal them, that fueled this.

And as you mentioned, those pictures of Diana, very gruesome pictures that were taken in the immediate aftermath of the crash -- bear in mind, the Paparazzi were all around.

Her last few moments as she was taken from the wreckage of the car and taken to the hospital were captured on camera.

Those images initially published in a couple of European publications, taken down very quickly, were also at the heart of the inquiry.

The U.K. had its longest and most expensive inquiry yet trying to figure out exactly the circumstances of Princess Diana's death.

At the heart of that was those very images.

Now, the coroner decided unusually that they wouldn't go up on the inquest's website because even pixilated, they could be de-pixilated and used again.

Theirs to what the investigation was trying to figure out but to the cause of the accident as well.

Prince Harry himself had asked to see them.

And of course that is also a reminder of just how personally he has himself tried to investigate what his mother went through, to the point of being willing to look at those pictures himself.

HOST: Has there been any response yet from Buckingham Palace?

Melissa: We are waiting to hear more.

For the time being, what we have heard has been from New York City officials responding to that statement that was put out by Prince Harry and Meghan Markle, and I think a lot of people are waiting for more details about exactly what happened.

No comment for the time being, but I think that until more details come through of exactly what happened, it will be interesting to see what the palace does, if and when it does decide to react either informally or formally, to reach out to Harry and Meghan somehow.

HOST: We are happy and relieved that no one was injured last night, and of this we will continue to follow this story for us as the investigation into the incident continues.

Thank you so much.

Next to America's desperate fight over abortion access.

Today allies are only three Republican-nominated judges in New Orleans, is the case begins whether the abortion drug Mifepristone should be taken off the market.

The biggest abortion case since Roe V. Wade was overturned last June.

If the judges ruled against the pillow, it's likely it will go to the Supreme Court for a final decision.

Joining me now is Mary Ziegler, law professor at the University of California and a leading expert on the politics surrounding women's reproductive health in the United States.

Mary, welcome to the program and thank you for joining us today.

Before we get what is happening in certain states in terms of abortion-rights, let me ask you more about Mifepristone, try to dispel the innuendos and really the arguments that the plaintiffs have laid out that this is a dangerous drug for women.

This was a drug that had FDA approval over 20 years ago and is safer than Tylenol, safer than even Viagra.

My question throughout all of this is, what standing do the plaintiffs have, given this has been authorized by the FDA, even its lengthy history of being safe, and given the fact that Congress has given the FDA since 1998 overarching authority to determine whether drugs are safe and effective in the United States?

MARY: we know that the -- it is likely to be on procedural grounds.

The plaintiffs in this case are a group of conservative doctors who don't have any patients who complained about for Bristol.

They say they will inevitably have patients who will complain about Mifepristone.

They are complaining that time spent suing about Mifepristone has prevented them from doing other productive things, which again, is not a basis usually for bringing a lawsuit.

Usually when he turned into something the FDA has done, you can't wait nearly a quarter-century to do it.

It's an unusual case procedurally and also in terms of how science is being handled.

We are seeing essentially claims that abortion opponents in the United States have been making about Mifepristone since the 1990's, being used as a basis to revive this challenge to the drug, even though the FDA vetted those claims 20 years ago, and even though this challenge wasn't brought until 23 years later.

This is something highly unusual.

And it is going to be interesting to see what the Fifth Circuit does with it, given this is a conservative panel.

HOST: This is the second time this case comes before the Fifth Circuit.

Initially it came before the judge in Texas's first ruling, and the Justice Department appealed that decision.

The Supreme Court voted 2-1 to narrow but not completely block that Texas judge's ruling.

What can we expect now?

Because that had ultimately gone to the Supreme Court which had put the lower court's ruling on hold pending the appeal.

In layman terms, that says this drag will be available for the time being.

Having been said, what can we expect the second time around before this circuit Court of Appeals?

Mary: It is hard to say.

This is an arguably even more conservative group of justices.

The Fifth Circuit has panels that are randomly drawn and this panel is more conservative than the last one.

Looking at that alone, we would expect the judges to have sympathy for the plaintiff's claims.

The wild card here is that the U.S. Supreme Court did allow the status quo to stay in place and usually one of the factors the Supreme Court is supposed to consider in reaching a conclusion about that is who is likely to win when the case is done.

Their willingness to leave this status quo in place means there is skepticism that the plaintiffs will win, for one reason or another.

If you are the Fifth Circuit panel and you think the plaintiffs are right, do you push the envelope and give them a big win and hope to persuade some of those conservative justices on the Supreme Court to change their mind, or do you acknowledge the writing on the wall that may be these plaintiffs don't have standing, maybe this case is too procedurally flawed, and do you make the case that some of their legal arguments make sense, even though this particular course of action has to go away on some technical ground like standing?

HOST: This is the most widely used form of abortion, this specific pill.

Why it is getting so much attention nationwide is that it impacts everyone in every state no matter what their stance is or are there laws are regarding abortion.

How does that square with the Supreme Court's decision to overturn Roe V. Wade which they said in their justification, that it should be up to the states?

Mary: Yeah it didn't take long for everyone to realize that was not going to happen.

The two major claims the plaintiffs are making in this case are either that the FDA never had authority to approve Mifepristone in the first place, or that the Comstock act, bars the mailing of Mifepristone and likely bars all abortion, because every abortion in the United States involves something put into the mail, whether that is a scalpel or medication.

None of those arguments of this we allow voters in the states to make up their own mind.

And of course, none of these things involve a move away from the federal courts.

Antiabortionists More than ever on the federal courts, in part because they understand that that is where they can win.

A national ban would be impossible to achieve through democratic politics, and may well be possible to achieve rulings of conservative federal judges, so I think it makes the Supreme Court's decision in Dobbs look either naive or dishonest, depending on your point of view.

HOST: The precedent this would set, one cannot overstate.

It is one of the reasons you have CEOs of almost every single major drug company petitioning against this ruling, because when you overturn one, the FDA's approval for one drug, it could open the door to many others going forward.

Let's move onto states specifically and what is going on in North Carolina.

The General assembly moved Tuesday to ban abortions after 12 weeks, a law that they had put in place, that the Democratic governor had overturned and vetoed and now this overturns that veto.

What happens now in that state for women seeking abortion?

Mary: It's kind of a sneaky law, because the top headline is that it is a 12 week Ann but it actually limits medication abortion even further.

So the most common abortion method in North Carolina is only available until 12 weeks and it imposes additional restrictions.

North Carolina originally had in a receiving state, most of the South in the United States has ban on abortion from fertilization in North Carolina, South Carolina and Florida had exceptions.

Florida just cashed a ban at six weeks of pregnancy, which is before many people know they are pregnant.

The legal debate on that bill is up for grabs in state courts.

The South Carolina Supreme Court had opened the door for access by striking down the six week ban.

While it isn't as extreme as a ban from fertilization or six weeks, it will still make abortions much harder to get.

It narrows exceptions for people who have things like life-threatening conditions, fetal abnormalities, rape or incest.

So I think the interesting question is going to be whether even this is a stopping point in North Carolina or whether this is a way station on the road to even more stringent law.

That is what I expect to see abortion opponents pushing for.

HOST: you are seeing states really watching what others are doing and moving forward based on that.

I want to play for our viewers some real life samples of the implications these state laws have on stories and women and how they are affected.

Here is a teacher from Texas who had to seek an emergency abortion in a neighboring state because of a newly enacted law in Texas.

>> How can you be so cruel as to pass a law that you know will hurt women and that you know will cause babies to be born in pain question mark he was going to die a painful death.

How is that humane?

How is that saving energy.

Remember being so angry and shocked in that moment that I am being told my child will not survive and that I have to carry him to term no matter what.

I have never felt more -- betrayed.

A place I was once so proud to be from.

HOST: That is just one woman's story.

This is not just a women's issue, this is a family issue.

On the one hand you have abortion opponents saying that there are carveouts in these laws that allow for a doctor tried to save the life of a woman.

But you do see examples almost on a daily basis of doctors and legal teams of hospitals not wanting to address these women and their issues because they are afraid of lawsuits.

Can you give us a few examples of what you have seen and heard of.

Mary: Essentially a lot of these laws, like the Carolina law, you're seeing how language that is designed for criminal courts -- they will say things like " permanent and substantial impairment of an important bodily function" -- paraphrasing -- this is not language that doctors would use.

They are not sure what the language means.

On the other side of the ledger, you have the penalties.

.

In Texas, for example, performing an abortion if you are wrong about the application of an exception, can land you in prison, up to life in prison.

And it is a felony.

If you are a physician, you are looking and saying, if I am wrong, if my interpretation of this legal language that I don't understand is incorrect, I could lose my medical license, my liberty.

I could not see my family for at least a decade.

It's not surprising that doctors aren't willing to roll the dice on that.

If you couple the exceptions with really severe penalties, you will see a lot of people turned away when seeking care.

Not just people seeking abortions, but in many of these states, these cases we are hearing are people who had long pregnancies and that lost those pregnancies, stillbirths, miscarriage management cases.

Other people who are being affected.

These are unintended consequences but they are not surprising.

HOST: We should note, if a person is also -- Mifepristone is also a widely used drug for people experiencing miscarriage as well.

No doubt a hotbed issue.

We will continue to follow this topic closely.

Mary Ziegler, thank you for joining us in helping to explain it for our viewers.

Mary: Thanks for having me.

HOST: Now return to Ukraine where Russian shelling is hammering the front lines.

Leaders in the country continue to appeal for help as the war drags on.

On the back of President Zelenskyy's European Tour, his first lady has been asking for further nonlegal military aid.

First lady Zelenskyy has been in South Korea asking for non-lethal military aid.

Ukraine's deputy foreign minister joins the show to discuss all this, as well as her campaign to ensure Ukraine regains Crimea, and how that goal is tied to a painful family history.

Thank you for taking time to speak with us today.

An important G7 meeting is set to begin this Friday and we know that President Zelenskyy is expected to address the summit.

Can you give us an insight on what we are expected to hear from him?

>> Something that he has been echoing since the full-fledged invasion started.

I think his speech will be about Ukraine, where we need to be much more efficient in our fight against people.

This is about weapon supplier, about economic support, about those projects we have developed in terms of recovery and built.

Important to understand that there is a hope for Ukrainian people in terms of knowing that this future will come because unfortunately when you live under the circumstance of war, you can't feel the ground underneath your feet and you can't plan.

The recovery issue is also important.

I think he will also address this.

Most importantly to my knowledge that he also wants to reflect on the global South, there is a priority that is a Ukrainian diplomacy with regards to the global South.

The dominant narrative today that covers almost all global South countries we Latin America, Africa or Asia, is that this war is provoked, but this war is justified with NATO enlargement, which I believe can be destroyed by the Matter of Fact of invasion in 2014 two Crimea when we never had NATO discussion and we never had an article in the constitution saying that our foreign policy goal is to be a member of NATO.

The global South narrative is also about kind of being one nation with Russia, being a part of this Russian world.

I think that it is true to be the first-hand information and the source of information in explaining our course.

President Zelenskyy's participation in that event, his speech and his words will be directed at explaining where we are, what we're fighting for, who we are as a nation, what we want and why it is crucial to support Ukraine.

Christiane: It is important that you brought up the global South.

We spent a lot of time talking about the Western alliance and its support for Ukraine financially and militarily.

The global South in bulk has taken a stance of neutrality.

Christiane Amanpour recently spoke with the Brazilian prime minister about why the country is not providing military aid to Ukraine.

And I know you were really in India as well trying to persuade officials there for more aid.

Why do you think that after this point we have not seen more of these countries come to the defense, publicly, vocally, and financially, of Ukraine?

Mstr.

Dzhaparova: I believe that every country, without exception, is being guided by its own national interest.

Sometimes, with due respect to those countries and their national interests, for Ukraine, it is crucial to explain why it is important to support.

Our goal is to explain why it is crucial to remain on the right side of history.

We do that with China and India.

It's not something that we have a tailored approach, unfortunately this is the war and this is the suffering that we have as a society and NATO.

As my president says, I don't have time for diplomacy, I am straight to the point, to any leader that visits him.

Straight to the point in saying that what should be done in order to help Ukraine to fight with this evil.

Moreover I would say that it is not about Ukraine only.

Let us imagine Putin achieves his goals.

Then the other issue would be raised is, if someone or anyone can be secured -- we're talking about a country that has a huge army, a country that is many times bigger than Ukraine.

If we all as humanity allow that to happen, it means other countries will never be secured.

Bianna: A longer-term goal for Ukraine, post-victory in this war, is to join NATO and the EU.

Last year Ukraine was given E.U.

candidacy status in 2022, but officially there are a lot of provisions and requirements that must be met to join the EU ultimately after the war in one of them is to confront corruption.

I know that is something President Zelenskyy has been tackling.

Just recently, the head of the Ukraine Supreme Court was dismissed, suspected of taking $2.7 million worth of bribes.

I believe there were a photo of dollars lined up on a sofa.

What is your government doing to stamp out this issue, but does his arrest symbolize?

Mstr.

Dzhaparova: To tackle this specific question, you might talk to my colleagues because I am not the one dealing with anticorruption in the government, but it is my personal feeling that this case, when the anticorruption body revealed this huge level of corruption in the judicial system, it is super important as a showcase of something that we fight as a domestic enemy, not only the foreign enemy that we have with regards to Russia, but also the post-Soviet remnant that we fight as a society.

And I hope that those anticorruption bodies that we launched, anticorruption agency, the anticorruption Bureau, or the judicial reform we started, even though sometimes it is not ideal because it might take years and we have many places in the country still reforming their financial system, it started with a global reconstruction.

The education system is under reform.

Health care system and the reform.

Decentralization is another important reform with the logic to give some power to the regions and local authorities because they will always know better what do people need in the regions.

This is a global reconstruction we started back in 2014.

And the mother of this reform is anticorruption reform.

There are a bunch of laws that have been adopted by the parliament to tackle this anticorruption process.

At the end of the day, it's always about culture.

When we speak about reforms, it's not only on paper, not only the law providing this or that article, it's about the culture of people.

This culture of the European nation crystallized by the war -- because we pay the highest price possible for that, the price of our lives -- we understand this may take long, but this is something that is super crucial for us to live in the country that we all dream about.

Prosperous, democratic and transparent.

Bianna: I want to speak to you about your background and the significance of what tomorrow is.

May 18 is the anniversary of Stalin's expulsion of the Crimean Tartars from their homeland, I believe there were some few thousand expelled to the Eastern part of the country.

This is your background.

You are a Crimean Tartar as well, and once again, the community there has been uprooted after the 2014 illegal annexation of Russia of Crimea.

Tartare's move to the mainland area.

You yourself was affected.

Talk about the significance of this date and of Crimea and culture and the Tartars there and their history in that land.

Mstr.

Dzhaparova: Thank you for your question.

If anyone wants to understand the nature of the current crime of Putin, in Crimea or any other spot of Ukraine, you can only refer to the history of the Tartar people.

Russia has been systematically doing so for centuries.

There are three main pillars when we speak about Crimean Tartars The first annexation, in 1783, Catherine II annexed Crimea for the first time.

Within 100 years after, one third of the indigenous population left the peninsula.

Second pillar is 1944, 18th of May.

And let me bring to your attention that it happened half the year before the conference took place in 1945 when the world leaders came to Crimea and pretended nothing happened with Crimean Tartar.

Nobody said a word about them.

Because deportation happened when the Crimean Tartar men were fighting in the Army against Nazi Germany.

Children and seniors were taken into wagons and take into an unknown place in central Asia.

Every second Crimean tartar died.

Then Stalin and the Soviets, they resettled Russian people from other parts of the to Crimea.

In 2014 went Putin invaded Crimea, he claimed that these Russian people living in Crimea and this is the traditional land of Crimea.

It's about justice.

When we speak about Crimea and its indigenous population, these are Crimean Tatars, This is why Putin started to repress them in 2014.

Deportations, kidnappings, persecutions, labeling Crimean Tartar's as Muslim extremists but as a matter of fact we have never had any terrorist attack before 2014, this reality today in Crimea is something that used to be in the 18th of May 1944 or in the 18th century with Kathryn the second.

The nature of it is evil.

Ukraine it is crucial to follow international law which says Crimea is an integral part of Ukraine.

Bianna: Thank you so much for your time, a manager part of her.

We appreciate you coming on today.

Carsten the Supreme Court's addition is very low.

Our next guest says part of the reason is the rise of The Shadow Docket, where cases decided quickly without written opinions or oral arguments.

A professor traces how it is changing in his new book, and he joins Hari Sreenivasan to discuss.

HARI: Thank you for joining us.

Your book is titled "The Shadow Docket," what is a shadow docket?

GUEST: it's not much more than an umbrella term for most of what the U.S. Supreme Court does.

We tend to talk a lot about the merit docket, the 65 decisions the court hands down each term after cases have been argued, but in reality, that is just a small slice of the overall output of the Supreme Court.

The shadow docket was coined by a Chicago professor in 2015 to describe everything else the Supreme Court does, the unexplained orders that usually account for most of the Supreme Court's work.

That can often times be just as consequential and as impactful as the big, fancy decisions we tend to focus on in our public discussions.

HARI: Right, we forget the Supreme Court rejects most of the cases that come to it, there is a small fraction that they even choose to hear.

So as a refresher, how do these cases get to the Supreme Court before they go down either The Shadow Docket or the merit case route?

Stephen: The typical lawsuit gets to the Supreme Court at the very end of litigation, after years of back-and-forth in lower courts, and usually it is only at the very end that whoever lost in the last round will go to the U.S. Supreme Court and asked the justices to take up the appeal.

As you said, the justices can choose whether or not to take the place.

One of the themes in recent years is another type of border where even before we get to the point, before the case has made it all the way through, the party that lost sales the federal government had one of its policies and join, or someone challenging a state COVID measure might go to the Supreme Court early in the case and ask for something called emergency relief, asking the justices basically to freeze the status quo or to unfreeze the status quo while the rest of that litigation process plays out.

That is where we have seen a real uptick in the last five or six years in how often the justices are granting that kind of relief, in the impact of orders granted on that kind of relief and where those impacts have been felt by all of us, from federal vaccination mandates to state abortion ban s to Congressional District maps.

We have seen these orders reshape large swaths of American public policy.

Hari: I want to go through each of those policies.

A quote you wrote, "As The Shadow Docket has grown, the merit docket has shrunk, given the justices less time in which to conduct a review cases that presented real or conjured emergencies."

Let's talk about their frequency.

How often are these types of 1-sentence, 1-paragraph rulings happening?

Stephen: We're seeing them just about every week now.

We should distinguish between when the court's granting or denying review of appeal.

But of the emergency side we are seeing somewhere between 75 to 100 of these rulings each term.

We are seeing the court grant somewhere between 15-25 of these for term.

The court is not even taking 75-100 merit cases per term, the last few terms it has been around 60. .

The number of times we are seeing justices intervene through emergency applications is way up in both number and qualitative assessment from as recently as 10 years ago.

10 years ago maybe the justices would have intervened, 5, 6, seven times per term and those interventions would have almost all been in death penalty cases, where the emergency was a last-minute request to block an execution or to unblock an execution.

Now we are seeing these emergency requests on questions of statewide or federal policy, everything from the student loan program to the Title 42 immigration policy, so litigation measures.

Hari: So how long are these decisions, and what do they typically say?

What do they share about why they got to a particular decision?

Stephen: Usually, nothing.

That is the problem.

The typical disposition is something like, "The application for a stay presented to Justice Alito and it is granted."

That is it.

We might get concurrent or dissenting opinions, but it really is the exception that the court will write a majority opinion when it hands down one of these orders.

Historically that is not unusual .

20 years ago when all the court was doing through emergency applications was last-minute stays of execution.

I don't think there is a big clamor for the justices to provide lengthy explanations.

Now that these orders are having profound effect on the ground, the fact that we see the court intervening, often times and hundreds of pages of analysis from lower court judges and providing no explanation, I think it is a real part of the problem and it deprives all of us, the lower courts, the relevant government decision-makers and the public of any ability to assess whether justices ruled the way they did.

Hari: Justice Alito has pushed back on this idea in multiple ways, one of the quotes you have from him is, "The catchy and sinister term shadow docket has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way."

He officially does not like not just the phrasing, but the entire concept that the court is doing something untoward.

And you take almost an entire chapter to try to push back against that.

What is your evidence against what he is saying?

Stephen: The evidence is the decisions.

For example, one of justice Alito's responses to critiques, I have been critical of the fact that the court is treating some of these orders as precedential and yelling at lower courts that haven't followed unexplained orders, justice Alito denies they are doing that.

We can point to specific cases where it has happened.

What is going on here is that from Justice Alito's perspective , of the court is doing is what it had always done in the death penalty context, just in a slightly different context.

What that totally fails to acknowledge and feels to account for is why it is problematic that the court is not explaining itself, that we are not seeing rationale.

We are not even seeing the vote count.

We don't even know which justices are on which side in a lot of these contexts when the decision is having these downstream effects.

When the decision is affecting who is voted for for Congress, as we saw in the Congressional redistricting cases, a decision affecting whether or not immigration policy will be allowed to be enforced, when a decision is blocking California or New York COVID mitigation measures.

This is where the Alito critique fails to account for what the court is actually doing.

He is defending a strawman.

If you look at the whole body of these cases, which is what the book does, you see a far more troubling pattern not of conservatives versus liberals, but a court that just seems to be on beholden to any need to explain itself, even when these decisions are having such massive effects.

Hari: The fact you are also concerned about is this precedent-setting nature of these really unexplained decisions.

Tell the audience why that is important.

Stephen: To put it into plain terms why this matters if, you go back to why we as a polity give our power to unelected judges, it is because we expect them to act in a way that is judicious and judicial.

At the heart of judicial power, what separates judges from politicians and rogues is principled rationales.

The willingness to provide justifications for why the ruling one way or the other, the Supreme Court has oversight, our power comes from our ability to provide explanations.

When you don't have those explanations, are missing not only principles -- we might disagree with the principles the court is adopting in cases like Dobbs, or when it comes to abortion organs.

What is missing in the unsigned and unexplained orders is any sense that the justices are ruling the way they are because of fidelity to some legal rule, as opposed to because they want party a to win and party b to lose.

When we look at all of these cases in the aggregate, there is really seldom a coherent legal through-line that explains why in some cases the court rules one way, in some cases it was the other.

Often times the best predictor is whether the case has a partisan balance.

What it does, we have seen the court turned to rule against Republicans and favor -- the rule against Democrats and favor Republicans.

Hari: Is there an effect on when these unsigned decisions increased in volume, a partisan effect?

Stephen: There is certainly an alignment and correlation between the shift and the change in membership on the Supreme Court.

I think it is harder to prove causation, but we really see this pattern start to pick up in 2017 before there were any big changes in the court's composition.

It is with the confirmation of Justice Kavanaugh to replace Justice Kennedy, the confirmation of Justice Barrett to replace Justice Ginsburg, that is when we see it really accelerate.

Not because these are conservative as opposed to liberal justices.

I think it is because the moderating influence of having a justice like Justice Kennedy who was in the middle, was removed.

The court has found it more convenient to use these unsigned, unexplained orders.

Not necessarily intentionally, but in a way that has produced these significant, downstream effects.

Hari: When we think about these emergency applications, a lot of people will understand the idea of death penalty cases.

The Supreme Court had a finding plate in the 1970's about this.

What is that due to, to the context of where we are today?

Stephen: In response to the reinstitution of the death penalty in the 1970's, we see the court move towards resolving all remotely contentious emergency applications as a full court.

We see the court move away from having oral arguments on emergency applications, having extended --, writing opinions.

I think what got lost in history is that for 35 years, those moves, which I think are deeply problematic, were confined to the unique space of the death penalty so we didn't talk about it much, we did not notice it much.

.

We ask people who clerked on the Supreme Court in the 1970's and 1980's and the 90's, and what they remember is The Shadow Docket.

The move from 2017 onwards is, all of these pathologies that have come to mark how the Supreme Court handles last-minute applications in the death penalty context have become normalized into contexts that have nationwide policy locations.

Whether it is.

Donald Trump building his Border wall, whether it is about the attempt to ban access to Mifepristone on a nationwide basis.

Even if that move in the early 1980's was remotely justifiable in the death penalty context, it doesn't hold up once the Supreme Court is handing down orders in this contexts that are having such massive legal and practical impacts in the real world.

Hari: I know that Justice Alito is opposed to the idea.

Did you have a chance to speak to the other justices about this practice, or have they been making statements that you can cite on the record about how they feel about this?

Stephen: The best evidence we have is what they have been writing publicly.

Justice Kagan has been leading the criticisms of how the conservative majority has been using The Shadow Docket.

She has written I think four separate dissenting opinions in some of these cases where she has called out not just the result, but the procedural shortcuts that the majority was taking.

I think the most interesting figure here is Chief Justice John Roberts, who I think is deeply sympathetic to the results court is reaching in all of these cases.

He has been dissenting a lot with the Democratic appointed justices.

In the Texas abortion case, in the Alabama redistricting case, in the clean water case from April 2022.

In that last one, that clean water case, he actually joined Justice Kagan's dissenting opinion that accused the five other conservative justices of taking procedural shortcuts.

This is such an important point, because it really underscores why criticism of the court's behavior is not necessarily partisan.

You can be a conservative judge like John Roberts and still think that there is a right way for the Supreme Court to hand down these rulings, and a wrong way for the court to hand down these rulings, and I think the fact that Chief Justice Roberts has been so critical in such a telling part of this story.

Hari: So what is the check that exists on the Supreme Court, perhaps a check that we are not exercising today, that we used to find normal question mark these are lifetime-appointed justices.

At some point, there is a decreased confidence in how they are doing their jobs.

Stephen: This is I think where we are.

In that respect, the riser docket is a symptom of a broader disease.

This is where we also have to bring in all of these stories about justices' ethics and financial disclosures.

Historically, the principal check on the court was Congress.

Indeed until 1935, the Supreme Court sat in the Capitol.

Part of what has gotten us to where we are is that aggressively, and especially the last 35 years, Congress has basically taken its hands-off and has gotten out of the business of being part of this ongoing inter-branch dialogue about keeping the court in its lane.

So when John Roberts writes back to Illinois Senator Dick Durbin and says "I will not come and testify before the Senate Judiciary committee because of separation of powers concerns," that is a reflection of a very modern and not remotely historical view of the separation of powers.

Historically the court was part of this conversation, as a poster today where it seems completely above and oblivious to it.

Hari: What has happened to our public confidence in the Supreme Court the last few years?

Stephen: If you look at the survey out there, it is going down.

I think this is a bigger problem than the justices want to admit publicly.

It's not that the Supreme Court should be guided by public opinion polls and, it's not that the Supreme Court should do what the majority wants it to do.

But the Supreme Court does not have an army.

The reason why we as a polity follow the Supreme Court is because there is at least some substantial belief in the court's legitimacy as an institution.

The more that belief erodes, the more that we lose faith in the idea that the justices are exercising judicial power as opposed to political power, I think the more dangerous a slope we are on, because if we get to a point where there are large swaths of the population that refused to accept the legitimacy of decisions from the Supreme Court, then the Supreme Court at that point becomes almost a pointless institution, one that can't stand up when we need it to, to the majority.

That would be a huge problem, one that frankly justices should be at the front of the line in trying to avoid.

But from the perspective of the court as an overall institution, we see a bit more of a historical ebb and flow, that suggests that our current moment, however exasperating it might be, is not one from which we cannot recover.

What we need no is to have consensus that the court should be more accountable, that Congress ought to be more involved in the relationship with the court about its docket, that the justices should be committed to providing principled rationales for their decision even though we will not agree with them.

And finally, that justices should be less in the business of criticizing critics who are worried about the court, who are trying to save the court from itself.

That is why I think this is such an important moment for the court, but also one that has a lot of time, a lot of games still to be played.

Hari: Professor Stephen Vladeck, author of the book "The Shadow Docket."

Thank you for joining us.

Bianna: Finally, a surprise left by a man other than Pablo Picasso.

His painting of his depicts Paris in 1900.

What the foreground.

You will see they are joined by one more.

Experts at New York's Guggenheim Museum uncovered a furry friend hidden behind the painting's surface, even adorned with his own little red bull.

You see the little puppy?

So cute.

That is it for our program tonight.

If you want to find out what is coming up on the show every night, sign up for our newsletter at PBS.org/amanpour.

Thanks for watching.

Thank you so much for watching "