Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket’

 

Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket’

 

A process intended to help the court deal with emergency petitions and routine matters has grown into a backdoor way of making major policy decisions.

 

The Supreme Court’s decision to leave in place a Texas law that bars most abortions in the state was part of its so-called shadow docket.

 

Charlie Savage

By Charlie Savage

Sept. 2, 2021

https://www.nytimes.com/2021/09/02/us/politics/supreme-court-shadow-docket-texas-abortion.html

 

WASHINGTON — Most of the time, the Supreme Court appears to the public like a cautiously deliberative body. Before issuing major rulings, the justices pore over extensive written briefs, grill lawyers in oral arguments and then take months to draft opinions explaining their reasoning, which they release at precisely calibrated moments.

 

Then there is the “shadow docket.”

 

With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters like changes to immigration enforcement, disputes over election rules, and public-health orders barring religious gatherings and evictions during the pandemic.

 

The latest and perhaps most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a novel Texas law that bars most abortions in the state — a momentous development in the decades-long judicial battle over abortion rights.

 

The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated “just how far the court’s ‘shadow-docket’ decisions may depart” from the usual judicial process and said use of the shadow docket “every day becomes more unreasoned, inconsistent and impossible to defend.”

 

There is nothing new about the court having an orders docket where it swiftly disposes of certain matters. But with the notable exception of emergency applications for last-minute stays of execution, this category of court activity has traditionally received little attention. That is because for the most part, the orders docket centers on routine case management requests by lawyers, like asking for permission to submit an unusually long brief.

 

The court also uses it to dispose of emergency appeals. Each justice handles requests from a different region, and can reject them or bring them to the full court. And increasingly, the court has been using its orders docket — which was deemed the “shadow docket” in 2015, in an influential law journal article by William Baude, a University of Chicago law professor — to swiftly decide whether to block government actions, turning it into a powerful tool for affecting public policy without fully hearing from the parties or explaining its actions in writing.

 

Criticism of the use of the shadow docket has been building for years but rose to a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he portrayed as a “flagrantly unconstitutional law” to take force and calling it “shameful” that the court’s majority did so without hearing arguments or issuing any signed opinion. He announced hearings.

 

“Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket,” he said in a statement. “Decisions like this one chip away at our democracy.”

 

Liberals are not the only ones who see problems in the increasing importance of the court’s exercise of power through emergency orders. When the court issued a shadow-docket order last year letting a Trump administration immigration rule take effect — overturning a lower-court judge’s nationwide injunction blocking the rule — Justice Neil M. Gorsuch, a conservative, supported that result but lamented the process that had led up to it.

 

“Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence,” he wrote.

 

But while there is broad consensus that the Supreme Court’s use of the shadow docket for high-profile rulings is growing — a trend playing out within an increasingly polarized judiciary and nation — defining the precise nature of the problem is complicated and subject to dispute.

 

“I don’t think anyone thinks it is good to have a lot of last-minute requests for emergency relief that the court has to focus on and decide,” said Samuel Bray, a University of Notre Dame law professor who testified about the shadow docket this summer before President Biden’s commission studying possible Supreme Court changes. “But there are difficult questions about what has caused the high-profile use of the shadow docket — and what to do about it.”

 

Over the past decade or so, such rulings have clearly become more common. Typically, they involve emergency appeals of lower-court rulings over the question of whether to block some change — like a new law or government policy — so it cannot be enforced while the slow process of litigating plays out.

 

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One way of measuring the Supreme Court’s use of its shadow docket to issue major decisions is how often it has used that power to summarily disrupt the status quo — such as by granting or vacating an injunction when a lower court had ruled a different way.

 

According to data compiled by Stephen I. Vladeck, a University of Texas at Austin law professor who has written critically about the rise of the shadow docket, cases in which the Supreme Court disrupted the status quo numbered in the single digits each year from 2005 to 2013, but have been rising since, reaching 19 in its last term and 19 again so far this term.

 

“If they are going to issue rulings that profoundly change the law, I think they have an obligation to write and to explain why they are doing it,” said Mr. Vladeck, who also testified on the issue before the Supreme Court commission. “They have an obligation to the lower courts, to the other parties in the case and to other public officials who need guidance.”

 

But as the furor over the Texas abortion rights case shows, that measure is imperfect. In that case, rather than summarily disrupting the status quo established by a lower court, the Supreme Court majority decided not to overturn what an appeals court had done.

 

The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

 

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

 

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

 

The Supreme Court’s decision. The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

 

Indeed, in another dissenting opinion — which Justice Kagan joined — Justice Sonia Sotomayor suggested that the problem in the Texas case was an insufficiently aggressive use of the shadow docket to alter the legal landscape. She said the court should have swiftly enjoined what she called “a flagrantly unconstitutional law.”

 

Mr. Bray argued that what is happening is partly explained by a shift in lower courts: They appear increasingly willing to issue nationwide injunctions blocking government policies in politically contentious cases, often brought by plaintiffs who have deliberately filed suit in particularly liberal or conservative areas, depending on who is president.

 

Judges in Texas issued injunctions blocking President Barack Obama’s policies, like shielding parents of American citizens from deportation. Judges in states like California did the same to block President Donald J. Trump’s policies, like banning travel by citizens of several Muslim countries. Last month, a judge in Texas required the Biden administration to reinstate a Trump-era program that forces asylum seekers at the southwestern border to remain in Mexico.

 

Such nationwide injunctions by a single judge prompt the government to file emergency appeals, which reach the Supreme Court through its shadow docket. And as the court has gotten into the habit of more frequently taking up emergency appeals in high-profile matters, it has grown more receptive to similar requests by plaintiffs in other types of cases, too.

 

Indeed, Mr. Vladeck argued that the shadow docket issue today cannot be simply reduced to the issue of nationwide injunctions. He noted that the lawsuit challenging the Texas abortion law and many decisions in recent years challenging local and state actions responding to the coronavirus pandemic did not involve them.

 

In an interview, Mr. Baude — the professor who coined the term “shadow docket,” and who is a member of Mr. Biden’s Supreme Court commission — said another reason the debate was so complicated was that there were different types of worries over the court’s growing use of its emergency orders to swiftly resolve matters, and they only partly overlapped.

 

One worry, he said, is substantive: The court may reach the wrong result because it is rushing. Another is procedural: Regardless of the result, it is not fair to parties who do not get a chance to be fully heard before the decision. A third is about transparency: The court should fully explain itself and disclose how each justice voted.

 

But the uproar over the majority’s handling of the Texas anti-abortion law, he said, seems most centered on another worry: that the conservative majority on the court is not being evenhanded or consistent about when it chooses to intervene with an emergency order.

 

“I think the real concern is the court has been reaching out aggressively in some of the immigration cases and Covid cases, and here it is not,” he said. “And why is it when it’s a Covid restriction in church service, the court rushes in, in the middle of the night, to stop the government, but when it’s an anti-abortion law, the court lets it go?”

 

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook