In an extraordinary use of the so-called shadow docket, the court refused to block a law effectively banning abortion.
Sign up here to get On Politics in your inbox every weekday. At 1 a.m. Eastern time on Wednesday, without a single word, the Supreme Court let a state effectively ban abortion for the first time in nearly 50 years. As night became day became night and abortion providers across Texas turned away patients seeking what was, according to the court’s own precedent, a constitutional right, still the justices said nothing. When they broke their silence 23 hours later, refusing to block a law that unambiguously violates Roe v. Wade, the five-justice majority took only 400 words to describe its reasoning. It was an extraordinary use of the so-called shadow docket, through which the court handles emergency applications and procedural questions on an expedited basis with limited briefing, no oral arguments and, often, no public explanation. But it was not the first time the court had used the shadow docket so aggressively. It was not even the first time in the past week. The Supreme Court has a regular docket of cases that it decides by reading lengthy briefs from each side, hearing oral arguments and, ultimately, ruling on the legal questions involved. Roe v. Wade, Obergefell v. Hodges, Citizens United — those were all on the regular docket, and so, most likely, was every decision you can name. Because the shadow docket involves so little deliberation and transparency, the court historically hasn’t used it to enable major policy changes or to reverse precedents, and the rulings themselves haven’t been treated as precedents. But that restraint is a norm, not a requirement, and the court has increasingly been breaking it: using the shadow docket more often, on more consequential matters, and with more precedential weight. Last year, it issued several orders on the shadow docket concerning coronavirus restrictions, and went on to cite some of them in rulings on the regular docket. “That’s really not typical, nor is it supposed to be typical,” said Melissa Murray, a professor of law at New York University and an expert on reproductive rights. The court issued four major orders via the shadow docket last month alone: blocking part of a New York State eviction moratorium, ending a federal eviction moratorium, declining to block a vaccine mandate at Indiana University, and requiring the Biden administration to reinstate a Trump-era immigration policy. In April, it blocked California’s pandemic restrictions on religious gatherings — a decision that rested on “a new understanding of the Free Exercise Clause of the First Amendment,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on federal courts. “Reasonable people can disagree about whether it’s a good reading of the First Amendment or a bad one. There’s no dispute it’s a new one.” “I think it’s a reasonable question, whatever one thinks of the answers the court is reaching in these cases, whether we actually think it’s healthy for so many major questions affecting so many people to be resolved in this highly compressed, circumscribed, truncated review process,” Professor Vladeck said.
