Bloomberg Law
Sept. 2, 2021, 9:17 PM

‘Shadow Docket’ Use in Top Court Abortion Ruling Fuels Angst (1)

Kimberly Robinson
Kimberly Robinson
Jordan Rubin

A crucial moment on a question of abortion precedent played out on the U.S. Supreme Court’s “shadow docket,” an expedited decision-making process taking up a bigger and what critics say is an unhealthy role in high court jurisprudence.

In a 5-4 ruling issued minutes before midnight Wednesday, the justices refused to block a Texas law prohibiting abortion after around six weeks, leaving in place the strictest abortion limits in the country in a one-paragraph opinion citing procedural defects with an abortion provider’s request.

The unsigned opinion that was seen by critics -- including President Joe Biden -- as a grave threat to the court’s landmark Roe v. Wade ruling establishing the constitutional right to abortion wasn’t appealed to the court in the usual process involving oral arguments and a decision many months later. Instead it came in as an emergency request only a few days earlier to Justice Samuel Alito while the court is technically in recess until a new session begins next month.

WATCH: A Texas law barring abortion after the sixth week of pregnancy took effect at least temporarily on Wednesday as the U.S. Supreme Court kept silent on a bid to block the measure.
(Source: Bloomberg)

The petition by abortion groups for a high court injunction was expedited on the docket meant for death penalty appeals and other emergency rulings, commonly, but not always, a request for a stay or other temporary action.

But more and more hot-button issues are being resolved there, including several in recent weeks on immigration in reviving the Trump administration’s “remain in Mexico” asylum policy, and scrapping the Biden administration’s new Covid-related eviction moratorium.

Some in the legal community are distressed by what they view as hasty treatment of important questions of law by the conservative-majority court, and the potential impact on the credibility of the justice system in an era of deep cultural and political division and growing mistrust of institutions.

“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking -- which every day becomes more unreasoned, inconsistent, and impossible to defend,” Justice Elena Kagan wrote in the dissent in the Texas abortion case, Whole Woman’s Health v. Jackson.

Biden also weighed in. “For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts,” he said in a statement.

The ruling comes as the court is set to consider formally overruling Roe and subsequent abortion precedent this coming term, in a case from Mississippi. The court “acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor said in her dissent.

Calls for an Overhaul

The latest maneuver hastened calls for Congress to step in on liberal calls to expand the Supreme Court, something the White House is studying with little expectation anything like that would ever happen.

“SCOTUS’s increasing use of the shadow docket to issue massive legal decisions is yet another reason why Supreme Court reform needs to be taken seriously,” tweeted Russ Feingold, the former Wisconsin senator and now-head of the progressive American Constitution Society.

In addition to adding seats to the court, Democrats have urged Congress to impose term limits on the justices, citing political gamesmanship to confirm three Donald Trump-appointees to the court.

“For most of its history, the Supreme Court understood that providing considered, reasoned decisions was essential to its legitimacy,” said Amir Ali, deputy director of the MacArthur Justice Center’s Supreme Court & Appellate Program. He testified earlier this year before Congress, advocating shadow-docket reform.

But now, Ali said, “this Supreme Court has appeared eager to make quick, unexplained decisions on major political issues.”

Another witness from that February shadow docket-hearing, Florida State University law professor Michael Morley, said people’s attitude toward the shadow docket -- what he notes is actually called the “orders list” -- tends to depend on whether they agree with what the lower court did.

“If they like what the lower court did, then people oppose having emergency-type relief at the court,” Morley said. “Whereas if they don’t like what the lower court is up to, then they see the need for review at the Supreme Court.”

The shadow docket was coined by University of Chicago law professor William Baude to refer to any Supreme Court action taken outside of the court’s traditional “merits docket,” which encompasses the usual process and proceedings. Unlike its merits docket, the justices often don’t explain their reasoning—or sometimes even reveal their votes.

The court’s decision on the Texas case was a single paragraph spanning two pages. The four dissents -- written by Chief Justice John Roberts and Justices Stephen Breyer, Sotomayor, and Kagan -- were five times as long.

“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” Kagan wrote, saying that the ruling is in conflict with Roe.

(Updates with comments from MacArthur Center and Florida State experts starting in 13th paragraph.)

To contact the reporters on this story:
Kimberly Robinson in Arlington at;
Jordan Rubin in Arlington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

John Crawley

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