The House and Senate Judiciary committees will hold hearings on the Supreme Court’s so-called “shadow docket” following its decision to let stand a new Texas law restricting abortion.
The high court on Wednesday voted 5-4 not to block the law, preserving it without allowing opponents to make oral arguments. It was just the latest example this year in which the court used the opaque process to rule on cases involving key political issues.
“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,” Senate Majority Whip Dick Durbin, an Illinois Democrat and the chairman of the Judiciary Committee, said in a statement Friday. “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.”
House Judiciary Committee Chairman Jerry Nadler of New York also said in a statement Thursday that his committee will hold hearings to “shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket,” adding that “decisions like this one chip away at our democracy.”
PELOSI WILL BRING VOTE ON BILL CODIFYING ABORTION PROTECTIONS IN RESPONSE TO TEXAS RESTRICTIONS
University of Chicago law professor William Baude coined the term “shadow docket” in a 2015 law journal article to describe a range of orders and decisions that the court makes outside its normal procedure to address emergency appeals such as blocking government actions. Often, the orders are unsigned, do not explain the court’s reasoning, and do not reveal how each justice voted.
In the Texas case, the Supreme Court denied an emergency request to block state legislation that bans abortion procedures if medical workers have “detected a fetal heartbeat for the unborn child” and allows individuals to file civil lawsuits against anyone who “aids or abets” such abortions.
The majority opinion said that the order allowing the Texas abortion restrictions to take effect “is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law.”
In a dissenting opinion, Justice Elena Kagan said that the ruling “illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process” and that “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.”
Other Congressional Democratic leaders are also planning actions in response to the Texas law. House Speaker Nancy Pelosi said Thursday that she will bring a vote on the Women’s Health Protection Act, a bill that would essentially codify Roe v. Wade into federal law by prohibiting states from implementing many kinds of requirements or restrictions that abortion advocates argue infringe on reproductive rights.
Democratic frustration with the Supreme Court’s “shadow docket” extends beyond the Texas abortion law.
Last week, an unsigned court order blocked the Biden administration’s “targeted” eviction moratorium intended to protect renters during the COVID-19 pandemic, saying Congress would have to act to extend a pause on evictions.
And in another action last week, the Supreme Court refused to block a lower court ruling that ordered the Biden administration to reinstate the Trump administration’s “Remain in Mexico” immigration policy.
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This is not the first time Congress has noted its concerns with the “shadow docket.” During a February House subcommittee hearing on the issue, both Republicans and Democrats expressed concern that the Supreme Court was not transparent enough in how it makes the emergency decisions.
“I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that,” Texas Republican Rep. Louie Gohmert said in the February hearing.
