U.S. Senate Majority Whip Dick Durbin (D-IL) announced Friday that the Senate Judiciary Committee would hold a hearing examining the Supreme Court. Durbin's office said it would focus on the "abuse of its ‘shadow-docket,’ particularly its order permitting Texas's extreme new abortion restrictions to take effect this week."
Injunction Junction
The Supreme Court let stand a new Texas abortion law when it rejected an application for an injunction to prevent the law's enforcement. Unusually, the high court announced its decision in an unsigned opinion released just before midnight on Wednesday, September 1. The law permits abortions when no fetal cardiac activity is detected. It amounts to an effective ban on abortion after the sixth week of pregnancy, which is when the heartbeat is usually first detected. Because women don't often know they are pregnant until that time, most abortions performed before the law's enactment would now be prohibited.
Durbin said:
"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. 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."
Justices John Roberts, Stephen Breyer, Elena Kagan, and Sonia Sotomayor all dissented from the Court's ruling on the application, and each wrote separately. There was a range of reactions, from Chief Justice Roberts, whose response was measured and circumspect, to Associate Justice Sotomayor, who called the Texas law "flagrantly unconstitutional" and said her colleagues on the Court "have opted to bury their heads in the sand." Justice Kagan spent her dissent criticizing what is known as the Court's "shadow docket" and how the Court has increasingly issued consequential rulings from it.
The Shadow Knows …
(Photo Illustration by Pavlo Gonchar/SOPA Images/LightRocket via Getty Images)
The term “shadow docket” was first coined in a 2015 law review article. It’s used to describe Supreme Court case rulings that don't arise on the standard trial docket. These shadow docket cases lack standard features of a regular case, including procedural and substantive shortcomings. Cases on the shadow docket are decided on an application for emergency relief from a lower court, which hasn’t yet decided the case on the merits. Gone are lengthy times for briefing issues, as well as oral arguments to present their best versions and expose contradictions. Finally, Justices don't take as much time deliberating and writing, so these decisions are rarely explained.
The Texas law was constructed to avoid judicial review and has so far succeeded. A novel feature of the law is that no state official, such as the attorney general or prosecutor, has the authority to enforce it. Any person has standing in Texas courts to commence a civil prosecution of an abortion provider under the terms of the law. It was the complicating factors of this provision that stopped the Supreme Court from issuing an injunction. The majority opinion said:
“The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
Senator Durbin gave no indication what actions the U.S. Senate might take in response to the Supreme Court ruling in a manner that displeases him.
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