Alito, Texas Abortion and the Shadow Docket: Déjà vu All Over Again?


On October 8, the Fifth Circuit summarily reinstated Texas’s “heartbeat” anti-abortion law, overturning district court Judge Robert Pitman’s careful, 113-page October 6 decision enjoining the onerous law. And so, the Supreme Court may soon have an opportunity to weigh in again, via its “emergency docket,” on the most restrictive abortion law in the nation. It authorizes “bounty-hunters” to inform on anyone helping a woman protect her right to control her body.

While much commentary has focused on what the Court will rule in that case, how it decides may be almost as important to its future and to the fate of democracy and the rule of law as what it ultimately says in the Texas case. The Court’s legitimacy is bound up with its ability to convince litigants and citizens alike that its rulings are the result of a careful, deliberative, and fair process. Its increasing resort to the emergency docket, dubbed the “shadow docket” in 2015 by law school professor William Baude, calls those virtues into question.

Critics rightly say that the Court’s use of emergency orders, issued without oral argument and full legal briefing, to decide issues with enormous substantive effect on the nation, may help its conservative members advance their agenda. But reconciling this development and the requirements of judicial legitimacy is no easy task.

That is why Supreme Court Justice Samuel Alito’s September 30 speech before a friendly audience at Notre Dame University was so important. There he waded into the fray of scholarly critique about the Supreme Court’s accelerating use of its emergency docket. He tried to square that fact with the requirements of reasoned decision-making while painting critics as narrow-minded partisans.

In his speech, Alito offered a series of straw arguments to defend the shadow docket. First, the Justice emphasized that emergency decisions require fast action. “Journalists may think we can dash off an opinion the way they dash off articles,” Alito snarked. “You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when . . . time is not of the essence.”

That begs the question of why the Court is now deciding more frequently that their EMT services are needed. In response, Alito deflected responsibility for the rise in the number of emergency cases from the Court to the Trump administration’s increased use of emergency applications.

But he ignored the fact that such applications are also being filed by red-state attorneys general, as where Missouri and Texas AGs successfully obtained an order stopping President Biden from discarding Trump’s pre-Covid “Remain in Mexico” policy for U.S. asylum-seekers coming from Central America.

In any event, Alito’s “blame the messenger” ignores what behavior psychologists have known for decades: When a message receives a favorable response, the messenger returns for more.

Next Alito went out of his way to defend the Court’s emergency decision in Whole Woman’s Health v. Jackson, which left the Texas “bounty-hunter” abortion law in effect, calling it a “purely a procedural decision.” That characterization ignored the ruling’s profound real-world effect, preventing 85%-90% of women from exercising their rights under Roe v. Wade in Texas. Refusing to protect constitutional rights on the “procedural ground” that no “bounty-hunter” had yet come into court to enforce the law put form 50,000 feet over substance in service of a desired result.

Alito rejected critics’ claims that emergency orders suffer from opaqueness that full court opinions help avoid: “[F]air-minded readers can easily understand the grounds for our rulings.”

What he didn’t address was the fact that the three orders he discussed all favored conservative litigants, a consistency that could lead “fair minded observers” to question whether the Court was impartially “calling balls and strikes.” In July, a Reuters analysis concluded that the Court’s emergency orders consistently favored religious groups and Trump’s administration.

Findings like that may have contributed to Justice Amy Coney Barrett publicly declaring in September that “we’re not a bunch of partisan hacks.” (Reminiscent of Richard Nixon’s Watergate-era speech in which he said, “I am not a crook.”)

Alito used his Notre Dame speech to lash out at his critics for feeding “unprecedented efforts to intimidate the Court and to damage it as an independent institution.” The thin-skinned tone might have fans of “Hamilton” remembering King George’s satirical song-lament “Why So Blue?” And Supreme Court followers might wonder what happened to the view, signed onto by Alito in Citizens United, that “it is our law and our tradition that more speech, not less, is the governing rule”?

Rather than intimidation, it is a mark of society’s health when scholars freely debate, even criticize, a high court’s practice. “Sunlight,” Supreme Court Justice Brandeis memorably wrote in 1913, “is said to be the best disinfectant.”

That bromide does not mean, however, that judges should seek the limelight to offer their perspectives on Court business or doctrine. That practice carries enormous risk of destroying the public’s trust in their impartiality and nonpartisanship.

Such was the lesson that Ruth Bader Ginsberg learned when she had to apologize for wading into political waters with her opinion about then-Presidential candidate Donald Trump. Presumably, preservation of the appearance of nonpartisanship is a rationale underlying Model Rule of Judicial Conduct Canon 5, which decrees that judges refrain from “inappropriate political activity.”

Alito’s September 30 speech will do little to quiet the controversy surrounding the shadow docket. And, if the Court again uses it to decide the Texas abortion case, his words will be lost in a firestorm of criticism.

Alito said little that will help restore flagging public confidence in the Supreme Court. Indeed his speech served mainly to reinforce the view that the Court does indeed have a partisan agenda, one which is increasingly out of step with the beliefs and values of the American people.

If Alito really wishes to understand the sources of the public’s growing disaffection from the Court, or the risks to judicial independence that such disaffection may produce, he might have been well served by checking out his reflection on one of the many lakes that dot the Notre Dame campus.

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