Texas’ recent abortion ban has turned the country on its head. There are many pro-life and pro-choice arguments. Women’s rights centers are scrambling to advocate.
There is a deeper issue hidden beneath all the noise. Texas women’s facilities asked the Supreme Court to intervene. The Court declined to intervene through shadow docket.
Shadow dockets can be a bit murky, as the name implies. However, the nation’s highest court seems to use them more often.
Many legal experts worry about what the future holds for our country.
What is a Shadow Docket and How Does It Work?
Law professor William Baude coined the term “shadow docket” in 2015. The term refers to decisions made by the Supreme Court which “defy its normal procedural regularity.”
Normally, the Court receives full briefings, hears oral arguments, and delivers signed opinions on a case. These are called “merit cases.”
However, via shadow dockets, the Court decides cases quickly with little to no public transparency or deliberation.
The Court can quickly act in an emergency situation by using the shadow docket. For example, the Court has used shadow dockets for stays of execution or halts on overseas bombing.
21st Century Shadow Dockets
Both of those examples occurred in the mid-20th century. Since then, the Court’s shadow dockets have increased in number.
CBS News reports that the Trump administration sought emergency relief through shadow dockets 41 times. Only eight were issued by the Obama and Bush administrations. Of Trump’s 41 requests, the Court granted 28.
In recent years, the Court has used shadow dockets to rush the executions of 13 federal inmates. Another decision was a 2017 ban on Muslim travel and a 2019 ban on transgender soldiers.
2019 also marked the lowest number of merit decisions issued by the Court since the Civil War. The Court’s typical 60-70 merit cases shrunk to just 53.
And in 2021, the High Court issued yet another shadow docket that directly threatens women’s rights.
The Texas Abortion Ban, Explained
Texas’ new law bans abortions after six weeks from the patient’s last period. This is before most patients would realize they’re pregnant. There are no exemptions from the ban for rape and incest.
Further, under this new law, civilians are incentivized to sue anyone aiding in an abortion. This $10,000 bounty can be claimed by doctors, nurses, or family members who offer to pay for the patient’s transportation to the clinic.
Texan health facilities issued a request to the Supreme Court to intervene under Roe v. Wade. By way of a shadow docket issued just before midnight, the Court refused to do so.
The Court’s final vote was 5 to 4. All four of the dissenting justices submitted opinions.
Casting Roe V. Wade Into The Dark
“The court’s order is stunning,” Justice Sotomayor wrote in her dissent. “A majority of justices have opted to bury their heads in the sand” when presented with a law “engineered to prohibit women from their constitutional rights.”
Moreover, Justice Kagan said the ruling “illustrates just how far the Court’s shadow-docket decisions may depart from the usual principles of the appellate process.”
“The majority’s decision is emblematic of too much of this court’s shadow docket decision making,” Kagan continues. “Which every day becomes more unreasoned, inconsistent, and impossible to defend.”
Certainly, the heavy significance of Roe v. Wade has thrust shadow dockets into the light. Indeed, overturning Roe v. Wade would strip women of their right to medical care.
“Any decision that looks like it’s gutting Roe is going to get a lot of attention,” explains Jessica Levinson. “Overturning Roe without the normal procedures…highlights how robust the shadow docket has become.”
Updating The Nation’s Highest Court
The Supreme Court is the highest tribunal in the nation. The buck stops at them.
It is alarming to think that the Court could make unexplained decisions. Practically, no legal opinion should be more trusted than the one that is given. Shadow dockets, however, are working to undermine that integrity.
It’s not just the liberal justices who have spoken out about the conservative majority. Both the House and Senate Judiciary committees have as well. In the same way, outside legal experts are beginning to speak out.
Law professor Steve Vladeck testified about the shadow docket before Congress. Professor Steve Vladeck from Texas said that the Court’s lack of explanation is, on one hand, transparency.
But it is also a “crucial shift. The Court is beginning to treat some of its orders as precedential. If they’re precedential, they ought to be explained,” Vladeck says.
Richard Pierce, a law professor, wrote an article about the topic published by Administrative Law Review. In the article, he proposes a solution.
“The Court should not issue [major decisions] without explaining its actions,” Pierce writes. “Such a change in practice would add to the workload of justices.”
“But that is a small price to pay to reduce the adverse effects of a large and growing shadow docket that is rapidly eroding one of the most important elements of the rule of law—the duty to engage in reasoned decision making.”