The U.S Supreme Court made what could be one of its most consequential, and controversial decisions in years this week by allowing Texas’ restrictive abortion law to stand.
Basically, in the middle of the night, the five conservative majority justices on the high court issued an unsigned ruling through what’s commonly known as its “shadow docket.”
This means that no oral arguments were asked for or heard, nor were there any lengthy deliberations. Most interesting – there were none of the usual explanations for the decision.
It should be noted that not all the justices were in favor of the decision. Justice Sonia Sotomayor wrote in her dissent, “Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Shadow docket is a term used by legal observers to describe the use of emergency orders and summary decisions by the U.S. Supreme Court without the opportunity of oral argument.
So how do you get a hearing or ruling on the shadow docket? According to Reuters,
“To get on the shadow docket, any litigant can apply to a single justice, who decides whether to forward the dispute to the full court. Five votes among the nine justices are needed to grant a request. No oral arguments are made but opposing attorneys can file briefs in opposition. To be granted, the request must meet certain criteria, including that the applicants would suffer “irreparable harm” if it is not granted.”
An alarming trend has been taking place, particularly since 2017, where the shadow docket has been increasingly utilized for consequential rulings, especially for requests by the Department of Justice for emergency stays of lower-court rulings.
The increased scrutiny came to a head with the judicial decision on the Texas abortion law. Senate Judiciary Committee Chairman Dick Durbin, D-Ill., announced Friday that his committee will hold a hearing about the law, and, more broadly, the decisions made by the Supreme Court on an emergency basis, according to CNN.
“This anti-choice law is a devastating blow to Americans’ constitutional rights — and the Court allowed it to see the light of day without public deliberation or transparency,” Durbin said in a statement.
He added, “At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative Court’s abuse of the shadow docket.”
And yes, the Supreme Court under the Trump administration has abused the shadow docket to the extreme, and the American public didn’t even know what was happening.
Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined.
Vladeck counted only four occasions during the Trump administration in which the Court denied “the government’s request outright.” Enough said…
