by Audrey Jung
William Baude is a law professor at the University of Chicago Law School, where he teaches federal courts, constitutional law, and elements of the law. After graduating from Yale Law School, he clerked for Judge Michael McConnell on the Tenth Circuit and Chief Justice John Roberts on the Supreme Court. Baude was the first to introduce the term “shadow docket” in an article published in 2015. He currently hosts two podcasts, “Divided Argument” and “Dissenting Opinions.“
What were you like as a teenager?
I was a big nerd. I spent a lot of time reading books. I spent a lot of time playing Dungeons and Dragons. I was really a big nerd.
Who or what got you interested in law?
My parents were both in law, so in a way it’s what I grew up with, although I don’t think I was conscious of that at the time. We didn’t exactly sit around talking about legal doctrines at the dinner table, but the way my parents had of answering and posing questions was what I now know is natural for law school. But I didn’t know I was interested in law until I was in college. I took a First Amendment class, and now that’s what I’m doing.
What pulled you towards constitutional law?
I was pulled in a lot of directions in law school, actually. I took a ton of classes on property, land use and zoning, and water law that I also thought were fascinating in a different way, in how the structures of law intersect with reality. But constitutional law was just one of the things I came across that was interesting. I couldn’t tell you exactly how it happened.
Did you have any specific professors that were really into constitutional law that might have spurred your interest in it?
Where I went to law school, a lot of faculty members were especially into constitutional law. There was a constitutional law class my first year, a small-group seminar with Professor Reva Siegel –– so just 17 students –– and having discussions about those principles certainly got me into it. I also took several classes with Professor Akhil Amar, who is a force of nature in the classroom. But I think I learned as much from out-of-class discussions with my classmates as I did with my professors.
After law school, you clerked for Judge Michael McConnell on the US Court of Appeals for the Tenth Circuit. What made you want to apply for Judge McConnell’s clerkship in particular?
I’d never met Judge McConnell before I applied but I’d read some of his scholarly writings that I thought were really insightful, because he’d been a law professor for a long time before he joined the bench. And then I read some of his judicial opinions, and there was the thoughtfulness there too. I was intrigued by who this incredible scholar and judge was. I talked to someone who had clerked for him and described what the job was like, and I thought that just sounded perfect.
Now that required moving to Utah, and I’d never spent any time in Utah, or really west of the Mississippi River before, so there was a leap of faith involved. But it turned out really well.
What are some key lessons you learned from that clerkship?
I think there were two very important things I learned from that clerkship. First, that it’s always okay to go to the judge you’re working for and say, “I’m not sure, what’s the right answer here?” I remember the first time that happened. We were in the middle of a case when something came up that we hadn’t anticipated, and I had to go to him and I was sort of nervous. His reaction was, “Well, let’s figure it out.”
The other important lesson was that it’s important to explain things. When you try to write something, a memo, an opinion, anything, it’s important to explain why this is the right answer. You should explain how you got from here to there. If there are parts that are especially tricky to explain, those are the parts you spend the most time on, because those are the things that might be most important.
After that, you clerked for Chief Justice John Roberts. What made you most want to clerk for the Chief Justice over the other justices on the Supreme Court?
I’ll confess first that when you apply to clerk — at the Supreme Court especially — you don’t really choose them, they choose you. You apply to the Court and most people never hear from them again, and sometimes you’re lucky enough that a justice decides to interview you.
That said, I think it was a perfect fit. The Chief Justice was probably the most engaged justice on the Court. He really knew what was going on in every case, and he cared about the details. If there were a minor problem in the case, he wanted to know about it. He was also really big on writing in a way that’s clear and persuasive.
You mentioned being interviewed by the Chief Justice, and that sounds really nerve-wracking. What was that experience like for you?
Yeah, it is very nerve-wracking. Because, you think, “What am I going to say to the Chief Justice of the United States?” But he’s a regular person, despite how important he is. He asked basic questions about me, what I thought of the Court’s most recent cases, about some of the jobs I’d had. Once you forget you’re being interviewed by the Chief Justice of the United States, you just talk to him.
As a teenager, I see the Chief Justice as a really imposing, distinguished figure –– which he is –– but, having had that time to develop a personal relationship with him, how would you describe him as a person beyond the Supreme Court?
He is all that. But he also loves jokes. He loves geography. He loves trivia. He loves sports. I got to have lunch with him just about every day when he was in town, and we talked about those kinds of things. We talked about life. Not everybody gets a chance to see that side of him.
What influence did Chief Justice Roberts and Judge McConnell have on your writing and your view of the law?
Gosh, at this point it’s almost hard to untangle. When I was in law school, I thought a lot about legal theory, abstractly, but I’d never had to put that in practice. Both clerkships taught me a lot about how to apply abstract principles to complicated cases. They taught me how to explain yourself in a way that isn’t defensive and doesn’t hide the ball but explains why something makes sense and how we got there.
What was the scariest part of being a clerk and how did you become more experienced and overcome that fear as the terms went on?
The scariest part of being a clerk is the fear that you’re going to make a mistake, by not noticing something you’re supposed to notice or by messing up your research. That’s the biggest worry, that you’re going to let the court down. There’s no substitute for being really careful and double-checking your work. You want to do something that’s reliable.
After your clerkship, you were in practice for a bit before becoming a law professor. What motivated you to enter academia?
I found that there were a lot of things in law I was really interested in, and I wanted to have the freedom to think about them. I also found that practicing law was a little bit lonely, especially when you have to bill by the hour. It’s harder to justify or make time for more free-ranging conversations with your colleagues. And so, I found being able to have that back and forth with students every day very attractive.
How would you describe the environment at UChicago’s law school?
Amazing. It’s a bit of an intense place –– I think everyone who comes to UChicago is a little intense. It’s a place where people really care about ideas, and about getting it right, and that’s true from the faculty down to the students.
Moving on to your work on the shadow docket, what inspired you to write about that topic?
I was asked to write a general introductory piece on the Supreme Court’s term for a law journal, and so I was trying to think about the bigger themes about the Supreme Court’s work. One of the things that people who have clerked and practiced know that most observers don’t know is how important these low-profile Supreme Court decisions can be. I wanted to bring that more into the mainstream, and show its importance to other people.
I really like the term “shadow docket” because when I hear those two words I get this automatic visual impression of what it is. What led to the coining of that term?
[laughs] So, this was a very close call, and a good example of the importance of having good friends. The first draft of this article had a different title, a terrible title: “Paying Attention to the Orders List.” That was what I was going to call it.
I knew that sounded a bit obscure and nerdy but thought it was appropriate because here I was, making this kind of obscure and nerdy point. A good colleague of mine, Justin Driver, read a draft of the piece and said, “Will, the title is terrible. You’re calling it ‘Paying Attention to the Orders List’? No one’s going to pay attention to the orders list if that’s the way you sell it.”
And I said, “Ok. What do you suggest?” And he said, “Well, something like ‘The Supreme Court’s Secret Docket,’ you’ve got to really sell this.” And then I said, “Secret Docket’s not right though –– it’s not a secret if you know where to look. It’s there on the website if you know where to click. It’s just that nobody looks where to click!”
So eventually I said, “Maybe ‘shadow docket’ captures it better. It’s not really a secret, but it’s not in broad daylight, either.” And so, I went with that.
That’s cool! How have your views on the shadow docket been shaped since you first wrote your article in 2015?
They’ve been shaped a lot. At the time I wrote it, the two things I wanted to do were to get people to pay attention to it and suggest that the Court needed to be a little more thoughtful and transparent about what it was doing on the shadow docket. I don’t want to take credit for it, but I think both those things have happened.
People are certainly talking about the shadow docket more. And it’s also my impression that the Court has changed a bit. They’re more likely to provide short explanations for their decisions. They’re more likely to provide separate writings. There are filings available on the Court’s website, so that you can read the briefs in these cases. So in that sense, I think things are different.
If you could go back in time a year or two and make suggestions to the Supreme Court for those terms, how would you suggest it approach its shadow docket?
The Court, especially in the past few years, has had a long string of shadow docket decisions about religious liberty and how it interacts with pandemic restrictions. It’s had a lot of those cases. I’m not sure they anticipated quite how many there would be, and whether if they had, they would have thought a little differently at the outset. Maybe I’m wrong about that.
But they did run into this problem where lower courts weren’t sure exactly what they were supposed to do with the opinions, whether they were supposed to treat them like merits opinions that set precedent. I think that before setting out down this road the Court should have maybe thought a little more about where this was likely to go, and also been a little clearer with the rest of us about what we were supposed to do with it all.
On your podcast Divided Argument, which you co-host with Professor Daniel Epps, what motivated you to start the podcast, and how did your collaboration with Professor Epps come about? You and Professor Epps don’t always agree, right?
Definitely not. [laughs] Dan is to the left of center and I’m characterized as more to the right of center, and especially about legal decisions we often have opposite views. But that’s probably one of the more important things about the podcast. We both believe that people who disagree with one another can still have productive conversations and can still learn from one another, even if we don’t agree at the end of the conversation. Sometimes, I think the main point of the podcast is trying to prove that the exchange of ideas with people who disagree is still possible.
I really love that. A while ago, you wrote an article where you provided three principles for tweeting well. In a different context, do you have three principles for having productive conversations when people don’t agree?
I think there might be only one most important principle, which is to actually try to listen to what the person thinks and why. Not just listening because you’re waiting until it’s your turn to talk; not just listening for the weak point, like the place where they didn’t choose their words properly or the place where you can get an opening against their view.
But what are their premises? Where do they start from? And how did that get them to where they are? I think that’s the most important thing.
Sometimes, you can say, “Oh, we actually share these premises. Maybe we can make some progress.” And sometimes it helps you see what premises you don’t share, and you can say, “We need to back the discussion up and figure out why you’re starting here and why I’m starting over there.” And sometimes you share different premises, and it stays that way, but you still learn a lot more by trying to figure out why people believe what they say.
Another way to think about this is through something called the Ideological Turing Test. It draws from an idea in computer science of artificial intelligence that can mimic a human, to the point where you can’t tell which is human and which is artificial intelligence. The Ideological Turing Test is being able to express views that you don’t agree with so well that people don’t even know you don’t agree with them.
So if I make a living constitutionalist argument, you would say, “Oh yeah. That sounds like you’re a living constitutionalist.” A living constitutionalist would hear that and say, “That’s what I think.” I think we should aspire to that. We should aspire to be able to articulate arguments so that the people we disagree with say, “Yes. That’s my argument.” Not a straw man, not what we want them to think, not what we imagine they secretly think, but what they say are their best arguments.
This year, you started the podcast “Dissenting Opinions” where legal experts discuss cases they believe are misunderstood. Was the motivation to start this podcast similar to what inspired you to collaborate on “Divided Argument”?
Yes. I wanted to hear people talking about ideas that aren’t just the conventional wisdom, that aren’t necessarily the party line. Sometimes those are things that are really in the weeds, so to speak. Sometimes they can resonate with a broad audience. But I didn’t want to just replicate what was already out there.
In your opinion, which Supreme Court case takes the prize as the most misunderstood?
You know, it’s funny, it’s the question I’ve been asking guests on the podcast for a year so I guess I should expect it to be turned on me. [Long pause]
I think if I had to pick one, it might be the Supreme Court opinions setting out the concept of judicial supremacy, which is the idea that the Supreme Court is the last word on all constitutional questions.
It’s now widely celebrated and taken for granted by lots of people from all sides, and I think they’re probably mistaken. They don’t understand that for a long time, we had a vision of constitutionalism where the Court wasn’t the only one that could make important decisions in constitutional law. We didn’t think that every time the Supreme Court ruled, that was the Constitution itself.
I think we should try to recover that. I’m in a very small minority in thinking so, but I think about it a lot.
What advice do you have for teenagers who are interested in law?
Read a lot. There’s so much out there that I wish I’d started reading earlier.
The other piece of advice I have is when you think about college, the most important thing is not to pick something like a pre-law major or to spend all of college trying to pretend you’re in law school. A really good comprehension of law requires a comprehension of a lot of other things, building blocks from history to statistics to philosophy to justice and ethics. High school and college are the major time you have to really focus on and learn about all those things. Probably the most important thing is to avoid letting yourself be siloed into one thing. It’s all relevant to law.
High School SCOTUS 