The Shadow Docket in the Face of Texas Anti-Abortion Law

On Sept. 1, the Supreme Court held up Texas’ restrictive abortion bill. As one of the most restrictive in the country, the bill was an unusual case outside the normalcy of the Supreme Court, under the precedence of the “shadow docket.”
The case was not a ‘normal hearing,’ one in which arguments are presented before the Supreme Court and then the nine justices give their ruling. This ruling was made utilizing the shadow docket.

“Shadow docket is a fairly new term that is not something nefarious or clandestine, it’s a way that courts sometimes need to deal with emergency cases on an urgent schedule,” Dr. Elizabeth Bergman, a political science professor on campus, said when asked about the shadow docket. Justice “Alito heard the appeal because the application for a stay goes, at least at first, to just one justice, known as the ‘circuit justice,’ who handles emergency appeals from the geographic area where the case originated,” Dr. Bergman continued.

Justice Alito, along with four of the conservative justices on the Supreme Court, agreed to not grant a stay of SB8, the Texas anti-abortion law. Chief Justice John Roberts, appointed by President George W. Bush, dissented alongside three liberal justices against rejecting the stay.

This is why the ruling did not establish precedent, nor did it overturn Roe v Wade (1973), but SB8 was able to to into effect.

Steve Vladeck, a legal scholar at the University of Texas at Austin, recently published a document comparing the cases of the Supreme Court term that ends on Oct. 3 showing sixty-eight decisions going through the process of the shadow docket, with little to no bipartisan support. “In *none* of those dissents has a Justice to the right of the Chief Justice joined a Justice to his left. That’s stunning,” Vladeck wrote.

The utilization of the shadow docket is something that has “ballooned under Trump,” according to NPR, even if it is meant to be utilized in the case of an emergency. These cases are all decided rapidly, rather than allowing the full deliberation to occur.

The last court term set a dangerous precedent for the Supreme Court by allowing numerous cases to reach a decision based on ideological lines without hearing the full arguments.

This could spell decades of decisions handed down that affect not only the populations at the time of the decision, but generations to come without giving these decisions the full breadth of deliberation they deserve.

In the case of the Texas anti-abortion law, the United States Justice Department has filed a lawsuit against the State of Texas to ensure that this law receives the hearing that it deserves.

By its very nature, the Supreme Court is a conservative institution. The decisions made by the Supreme Court can stem from ideals that are decades older than the average American citizen and the overall lack of fear of being removed from office gives Justices the ability to maintain their antiquated views.

This provides a sense of consistency, ensuring that there are no drastic changes that lead to public backlashes. However, what we are now seeing within the Supreme Court is a drastic shift away from consistency. We don’t know what the state of the nation would be if other landmark cases were settled through the shadow docket.