The U.S. Senate Judiciary Committee will examine the Supreme Court’s abuse of its “shadow-docket,” in the wake of its order permitting Texas’s extreme new abortion restrictions to take effect this week, which has led to expressions of outrage over such a cruel Texas government action and dismay at the judiciary’s complicity in snubbing the Constitution of the United States.
The constitutional right to privacy recognized in the landmark 1973 Roe v. Wade decision prohibits states from banning abortion before 24 weeks of gestation but the Texas law prohibits women from terminating a pregnancy after just six weeks.
Last week, the nation’s highest court issued an unsigned and unexplained order refusing to block the Texas law banning abortion after the detection of a fetal heartbeat—about six weeks from conception, often before a pregnancy is identified—and implementing a vigilante-style system of policing Texans’ right to choose.
This followed shadow-docket decisions last week overturning the Biden administration’s COVID-19 eviction moratorium and rejecting the president’s decision to repeal the Trump administration’s “Remain in Mexico” program.
First coined in 2015 by law professor William Baude, the term “shadow docket” refers to the thousands of decisions the Supreme Court hands down each term that “defy its normal procedural regularity.”
“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” said Senate Majority Whip Dick Durbin (D-IL), chair of the Senate Judiciary Committee. “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,” said Durbin.
The Supreme Court’s midnight order, which allowed the new restrictions to take effect, calls into question the consequences of the conservative majority’s increased use of the “shadow docket” in judicial review, which can hinder public confidence and leave lower courts in the dark about how to apply the court’s precedent moving forward.
The shadow docket is not new; for as long as there has been a Supreme Court, it has issued orders to manage its docket while it decides which cases to resolve — and how. From 1802 to 1839, the court even had a rump docket, which allowed a single justice to handle the procedural minutiae.
Even though most of the court’s procedural orders are relatively uncontroversial, there have also been some high-profile rulings: Orders blocking and then clearing the way for the execution of Julius and Ethel Rosenberg in 1953 and orders blocking and then clearing the way for the continued bombing of Cambodia in 1973 were issued from the shadow docket.
In her dissenting opinion, Associate Justice Elena Kagan wrote that this ruling “illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process… In all these ways, the majority’s decision is emblematic of too much of this court’s shadow docket decision-making—which every day becomes more un-reasoned, inconsistent, and impossible to defend.”
Progressive New Jersey Democrat Lisa McCormick welcomed Durbin’s committee investigation and said, “Texas has revoked the US Constitution when lawmakers there gave private vigilantes the power to prevent from terminating a pregnancy during the first six weeks women who have a federal constitutional right to obtain an abortion during that time.”
“By failing to stop the implementation of the incredibly restrictive abortion law in Texas, the Supreme Court is setting itself up to overturn Roe v. Wade,” said McCormick. “Justices who obviously make up their minds before they even get a case or hear evidence have negated the court’s legitimacy.”
“The Texas law banning abortions after six weeks is an attack on everyone’s constitutional rights because it negates our implicit right to privacy, which has been firmly established in multiple Supreme Court decisions,” said McCormick.
“As of September 1, Texas banned all abortions where a fetal heartbeat can be detected—around six weeks, often before a woman knows she is pregnant— despite the Constitutional right to privacy that guarantees women the right to choose whether to terminate a pregnancy,” said McCormick.
“If our Trumpified Supreme Court can give a green light to Texas’ abortion ban, what other issues have they already decided upon without an actual case or any evidence before them?,” asked McCormick. “We have five justices who are not interested in justice.’
An estimated 85 to 90 percent of women who get an abortion in Texas are at least six weeks into their pregnancy, and the burden is expected to fall most heavily on teens, people of color and women living in rural areas, experts said.
The law only makes exceptions for medical emergencies, with no exemptions for pregnancy resulting from incest or rape.
The Texas law gives enforcement authority to private citizens, allowing them to sue those who perform or aid the procedure in violation of the measure, and provides for $10,000 for a successful lawsuit.
“The Texas law is an unconstitutional abomination!,” said McCormick. “The right of women to make their own health care decisions, including the right to abortion, was settled by the Supreme Court nearly 50 years ago and has been upheld in case after case ever since.”
“Texas passed an abortion ban that could end Roe vs. Wade, putting millions of people in danger of losing the reproductive health care they need and deserve,” said McCormick. “That unconstitutional law must be overturned.”
“The extreme ban on abortion rights in Texas is one example of why I ran for the U.S. Senate in New Jersey in 2018,” said McCormick, who added that Republicans successfully pursue such extreme causes only because corporate Democrats don’t really care about women.
McCormick cited as an example of that disdain and disregard, inaction in Trenton on legislation designed to protect women’s rights.
“Gov. Phil Murphy knows that there is an urgent need to protect women’s rights from attack in the U.S. Supreme Court, which may try to outlaw abortions or overturn Roe v. Wade, but he is using the Reproductive Freedom Act as a political football,” said McCormick, who noted that the legislation codifying women’s right to privacy and protecting their exclusive ability to make decisions about their bodies has been languishing in committee while corporate-controlled Democrats have been using the issue to raise money in support of the corrupt political establishment. Murphy’s party has majorities in both chambers of the Legislature.
McCormick also shot back at critics who expressed support for the new unconstitutional Texas law.
“First of all, abortion does not murder a baby. It prevents one from being born,” said McCormick. “Second, the US Supreme Court said the Constitution gives us a right to privacy the requires you to mind your own business (MYOB) when it comes to other people’s sex lives.”
“Roe v Wade established that states have no authority to interfere with a woman’s right to choose a safe, legal abortion,” said McCormick. “The way out of this controversy is for Republicans to mind their own business, keep the government out of our bedrooms & show some respect for women.”
“Unlike the 60 or 70 cases the justices hear on the ‘merits’ docket, where the court receives full briefings, hears oral arguments, and delivers lengthy, signed opinions, these ‘shadow docket’ cases lack public deliberation and transparency that convey a sense of legitimacy,” said McCormick. “Americans are not going to stand for unexplained judicial edicts that defy logic and are wildly inconsistent with our values.”
Justice Kagan’s dissent cuts to the heart of the problem with the Texas abortion ruling — it undermines the court’s legitimacy. As Kagan put it, the majority decision “is emblematic of too much of this court’s shadow-docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”