Texas abortion ruling renews criticism of Supreme Court's 'shadow docket'

The Supreme Court justices in April 2021.
John Fritze

WASHINGTON – A series of contentious Supreme Court rulings this summer – including a midnight decision this week to allow a controversial Texas abortion law to remain in effect – has sharpened criticism of how the nation’s highest court handles emergency challenges on what has come to be known as its "shadow docket."

Without oral argument or signed opinions, the court has in recent weeks unwound President Joe Biden’s eviction moratorium, required the administration to keep migrants seeking asylum in Mexico, rebuffed an effort by a group of Indiana University students to fight their school’s COVID-19 vaccine mandate and declined to temporarily block the nation's most restrictive abortion ban.  

The court's practice in handling emergency cases is drawing criticism from both outside the court and from within, including a sharply worded dissent late Wednesday by Associate Justice Elena Kagan in the dispute over the Texas abortion law.  

"Without full briefing or argument, and after less than 72 hours’ thought, this court greenlights the operation of Texas’s patently unconstitutional law banning most abortions," Kagan wrote. "The majority’s 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."

The court’s emergency docket dealt with a succession of cases during President Donald Trump’s tenure as his administration sought to appeal lower court decisions to a Supreme Court where conservatives hold a majority. But predictions that similar rush-job requests would wane under Biden now seem premature.

Remain:Supreme Court rules Biden may not halt Trump-era 'remain in Mexico' policy 

Evict:Supreme Court blocks Biden's COVID-19 eviction moratorium 

That has given lift to criticism that the Supreme Court is wading into substantial issues on its emergency docket without the same considered, time-consuming approach it takes with other lawsuits that arrive through the regular appeals process. 

"The criticism is that when cases come before the court in an emergency posture, the court makes consequential decisions without a full airing of the legal issues and without applying consistent standards," said Rachel Bayefsky, a professor at University of Virginia School of Law. "The court’s handling of the Texas abortion case is bound to fuel this criticism."

The most common complaint critics raise is the lack of transparency in rulings that are often unsigned or arrive with no explanation at all.

"Often in the shadow docket you may know about the dissent, but you really don’t know anything about the reasoning of the justices who favor the order because typically there’s no opinion to explain it," said Peter Margulies, a law professor at Roger Williams University. “You’re left to guess.”

That happened in June when the eviction moratorium made its way to the Supreme Court the first time: A majority allowed the freeze to stand for a month with no explanation. Associate Justice Brett Kavanaugh wrote a one-paragraph concurring opinion, saying he would not support another extension unless authorized by Congress.

Nearly two months later, after Biden attempted to extend the policy, a majority of the court shot it down in an unsigned opinion, noting that the 1944 statute the Centers for Disease Control and Prevention relied on did not explicitly allow moratoria.

The court's three liberal associate justices dissented from the decision. 

In the Texas abortion case, a 5-4 majority of the court permitted the state's ban on abortions after six weeks to stand while the underlying legal questions are hashed out in lower federal courts. The Supreme Court's unsigned opinion dealing with the most restrictive abortion ban in the nation was just one lengthy paragraph. 

In addition to drawing attention to the shadow docket, the Texas ruling immediately prompted a new call by progressive groups to make other changes to the Supreme Court. Liberal groups have for months pushed lawmakers to increase the number of justices in an effort to mitigate the influence of the court's conservative justices. 

Biden has been cool to that proposal, which would face nearly impossible odds in the Senate. 

"The Republican justices are prepared to trample on basic legal principles when it suits their partisan agenda," said Brian Fallon, executive director of the progressive group Demand Justice. "The only comprehensive response to this situation is to expand the Supreme Court.

Merits v. shadows

The Supreme Court usually decides a case after the parties submit months' worth of legal briefs and take part in an hourlong oral argument. The opinions are usually signed – so it’s clear how each justice voted – and they generally involve the court parsing complex questions about how to apply the Constitution or a federal statute.

Shadow docket disputes, by contrast, usually involve deciding whether to temporarily block a law while the underlying legal questions are considered by lower courts. The parties sometimes have days to file briefs and there are no oral arguments.

In the abortion case, Planned Parenthood and several clinics in Texas filed the emergency appeal on Monday. The law took effect at midnight the next day and the court handed down its decision about 24 hours later. 

Speed is of the essence if, for instance, an inmate is challenging a death sentence scheduled for the following day or a law that may potentially infringe on someone’s rights is set to take effect soon. The vast majority of the filings are far more mundane, including procedural requests to exceed page limits the court sets for briefs.

"I can't say never decide a shadow-docket thing," Associate Justice Stephen Breyer told The New York Times in an interview published last week. "Not never. But be careful. And I’ve said that in print. I’ll probably say it more."

One of the problems, critics say, is that the court often makes a decision to halt a law – or to leave it in place – without much explanation at all. In her dissent in the Texas dispute, Kagan asserted that the 5-4 majority "barely bothers to explain its conclusion." Breyer, in his interview with the Times, said he agreed the court should explain its reasoning in shadow docket decisions.  

"Justice Kagan went out of her way to take issue not only with the substance of the court’s decision ... but also with the process the court had followed," Bayefsky said. That dissent, she said, "is likely to encourage greater scrutiny of the court’s emergency procedures, by the public and potentially by members of Congress."

Even Biden, who has been hesitant to directly criticize the Supreme Court, slammed the court for handing down the ruling "without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues."

Lawmakers have raised flags about that lack of transparency. At a House hearing this year, Rep. Darrell Issa, R-Calif., floated the idea of asking the court to disclose the vote in shadow docket decisions – a proposal the court would almost certainly rebuff. A commission appointed by Biden to study potential changes at the Supreme Court, meanwhile, has included the shadow docket as one of the areas it is considering. The group is expected to present its report this fall.

More:Biden’s Supreme Court commission already facing resistance 

Some experts argue that the shadow docket is at least partly a necessary response to other factors, including a proliferation of nationwide injunctions in which a federal judge in Texas or California, for instance, temporarily halts a law throughout the USA. 

The nation's legal system is premised on the idea of jurists considering questions in a reasoned and thoughtful way and a rapid review without much of a resulting written opinion "doesn’t sit well with those notions," said Jonathan Adler, a professor at Case Western Reserve School of Law. But that process takes time – too much time in some cases.

"Our system has a hard time of dealing with certain types of legal questions quickly,” Adler said. 

The Supreme Court is seen in Washington, D.C., on September 1, 2021.

COVID-19 at issue 

The shadow docket received considerable attention this year after the court knocked down several state restrictions designed to reduce the spread of COVID-19 that also limited the size of worship services. A majority of the court initially deferred to state health officials in those disputes but then shifted to favor churches and synagogues after Associate Justice Amy Coney Barrett was seated at the high court in October.

In February, the Supreme Court blocked enforcement of California's prohibition on indoor church services during the pandemic. Chief Justice John Roberts indicated that federal courts owe "significant deference" to politically accountable officials in public health matters but asserted that deference has its limits. 

Over the summer, when the justices break from the work of sitting for oral arguments, choosing the appeals they will consider or deny and writing opinions in regular cases, the shadow docket repeatedly kept the court in the news.

Days before ruling in the eviction case, the court handed down a ruling late last week requiring the Biden administration to reinstate an immigration policy in which migrants must wait in Mexico while U.S. officials process their asylum claims. The administration, the court said, had not properly suspended the Trump-era policy.

Days earlier, Barrett declined to block Indiana University’s vaccine mandate, rebuffing a shadow docket challenge that came as a growing number of employers and schools, responding to the delta variant, are requiring COVID-19 vaccinations. 

Though the university allowed exemptions, the attorney for the plaintiffs argued the school was "treating its students as children who cannot be trusted to make mature decisions." The school pointed to what it called its "legitimate public health interest in assuring the safety of our students, faculty and staff." 

Barrett denied the students' challenge without explanation.