Each June, as spring turns to summer and the Washington, D.C., sun shines most brightly, the justices of the Supreme Court emerge. Their annual term nears its end, and over the course of several weeks, they announce the decisions of that year’s cases.
That is usually the procedure, at least. But during the year, situations arise when the Supreme Court determines that a more immediate decision is necessary, and they employ an emergency safeguard for situations where a non-immediate ruling from the Court would result in “irreparable harm” for one or more parties. In recent years, however, the usage of this safeguard has grown in both frequency and scope.
Just in the past few months, the Supreme Court has quietly passed a series of decisions related to immigration, religious liberty, and abortion restrictions in a matter of days. This process, colloquially referred to as the “shadow docket,” allows the Supreme Court to make accelerated unsigned decisions without oral arguments or rigorous deliberation. Both the speed and the sheer power of these decisions have raised questions concerning the fairness of this process and the authority of the Court’s nine justices. More notably, these accelerated decisions have endangered the welfare of women, immigrants, and countless other vulnerable Americans.
In normal proceedings, a case is filed to the merits docket by a federal circuit court and is only considered if accepted by at least four justices. Following a series of briefings and oral arguments, the Supreme Court issues a signed ruling that includes an extensive explanation for the rationale behind their decision. The Supreme Court is intended to serve as an apolitical arbiter of equal justice, and the comprehensive procedures of the Court ensure that every ruling is constitutionally supported and accountable to each justice.
For the shadow docket, once the relevant circuit justice approves cases, they are considered within a shortened time frame. A decision arrives in a week or less. There are three main criteria that a case must fulfill to be reviewed:
- There is a “reasonable probability” that the four justices will agree to examine the case
- There is a “fair prospect” that a Court majority will decide that the ruled decision was erroneous
- Without an immediate ruling, there will be irreparable harm.
Shadow docket decisions do not require a justice’s signature and are much shorter in length than normal proceedings. For this reason, they are more susceptible to error or oversight, and therefore, are not intended to make complex rulings that deviate from legal precedent. This has not been the case for most recent rulings.
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On September 1, 2021, Texas’ controversial ban on abortions after six weeks of pregancy went into effect after receiving temporary protection from a recent Supreme Court shadow docket ruling. The majority opinion was one paragraph in length and unsigned, a mere three days after it was introduced to the docket. Without any exchange of oral arguments, the Court has undermined the ruling of Roe v. Wade, and the livelihoods of thousands of women and abortion providers in a matter of days.
For the past 10- years, a source, who has requested to remain anonymous, worked as a provider within a Texas abortion clinic offering services to women of all ages in order to realize their shared mission of defending women’s rights and livelihoods. Texas’ historically conservative stance on abortion has not only substantially reduced the number of accessible clinics in the state over time, but also their offered services. Her clinic is one of two centers in the entire state that are permitted to operate surgery, and it is the only one that provides full anesthesia for its patients. Their high-demand services attract women from various neighboring states, including Oklahoma, Louisiana, and Arkansas, which share similar, if not more severe, legislative restrictions on abortion.
She told The Politic that while the clinic’s patient load has surged by over 20%, its staff has substantially shrunk in size due to the intensifying personal and political threats that its employees have faced in recent months. She fears that, unless the recently passed bill is reversed, almost all abortion clinics in Texas will become obsolete. While the bill itself prevents the clinic from performing most forms of abortion, it has also intensified existing social and political pressures against women and female reproductive health centers.
In Texas, abortion clinics regularly experience political opposition and hostility from local anti-abortion activists; in the past few months, she reported, the demonstrators have been “more determined and a little more aggressive than before,” even physically deterring patients from entering the clinic. The anti-abortion protesters have started bringing posters plastered with grotesque graphics of mutilated babies, which they use when accosting patients attempting to approach the center.
In a short time, women have to weigh moral, social, and medical factors when they decide whether or not to proceed with a pregnancy. Even if they decide to have an abortion, there are often major financial barriers to accessibility since Texan insurance companies are barred from covering abortions with the exception of rape and incest. With the new ban on abortion, most, if not all, legal abortions will likely cease to occur in the state of Texas.
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And the shadow docket’s impact extends far beyond the issue of abortion. Due to the magnitude and extremity of recent rulings, some groups have challenged them in court. In December 2019, the Trump Administration created the Migrant Protection Protocols, which is commonly referred to as the MPP or the “Remain in Mexico” policy. This program prevents immigrants from the Southern border seeking asylum in the U.S. from remaining in the U.S. while the courts process their file. While Biden quickly terminated the initiative after taking office, in August 2021, the Supreme Court defended a federal court’s order to reinstate the procedures of the MPP via shadow docket. In turn, the American Civil Liberties Union, a nonpartisan civil rights legal group that had previously fought against this program, challenged the Court’s ruling immediately.
Cody Wofsy, a human rights attorney working to reverse the MPP, told The Politic that the Court’s decision was fairly extreme even by recent standards. Since January 2019, the MPP has sent approximately 70,000 migrants back to Mexico where they can remain in a state of limbo for several months before their hearing. While he works regularly with cases that contain emergency motions with the Court, Wofsy has found this case to be unique in its severity and impact. Perhaps the most obvious unusual feature of the MPP case is that it requires negotiations with Mexico in its legal proceedings. The order necessitates that Biden and the courts work with Mexico in both policy and negotiation, an area of legislation where the courts usually defer to the executive branch. It is highly atypical for the Supreme Court to involve itself with the formulation of foreign policy, and in that regard, this case is unprecedented.
Yet, it isn’t just the political nature of this case that is unconventional: The MPP is a particularly devastating program on the humanitarian level. Migrants denied refuge within U.S. borders are needlessly subjected to considerable risk of harm, including abductions, rapes, and beatings. Wofsy asserts that the Supreme Court’s decision to protect the program is “extremely harmful,” and the accelerated rate at which the case has progressed thus far has made his work more volatile and unpredictable than in the past.
As a human rights lawyer who frequently engages with proceedings within higher courts, Wofsy is concerned by the magnitude and scope of these rushed decisions. The Supreme Court’s speed and willingness to yield to political whims is dangerous and potentially unconstitutional.
Wofsy has observed that during the Trump Administration, the Department of Justice has both raised and sustained an extraordinarily high number of emergency relief cases that have prevailed at the Supreme Court.
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How legitimate are these legal challenges, and is the shadow docket a fair and just mechanism of the Court? According to Yale Law School professor Linda Greenhouse, one of the country’s preeminent Supreme Court scholars, the shadow docket was never a particularly controversial topic until the last four and a half years, when the Trump administration began to make deeply consequential legal rulings through a system intended for emergency use only. The process lacks accountability and transparency, Greenfield said, and, in recent months, has inappropriately formed substantive law through cases that don’t receive the standard thorough analysis and deliberation. In this way, these recent cases undermine the basic tenets upon which the Court was founded: rationality and objectivity.
The shadow docket is intended to only make decisions within the boundaries of stare decisis, the rule of precedent. An emergency ruling that neither endures the same scrutiny or responsibility as a regular case should not produce substantive permanent law over unprecedented issues. In the past, the Court mostly used the shadow docket to issue routine orders such as the extensions for oral arguments or extended the time allotted for parties to file a brief. When considering more consequential cases, the Supreme Court has, for the most part, strictly adhered to current constitutional interpretations and legal precedent. In 2016 and 2020, the Supreme Court deterred two laws on abortion that would largely prohibit the performance of most abortions in Texas and Louisiana; therefore, at least in the eyes of many legal scholars, the Court should have followed suit in the most recent case in Texas.
According to Greenhouse, the problem with the current abortion bill is that it attempts to reshape the law surrounding abortion due to the personal prejudices of certain politicians and justices against Roe v. Wade. For now, the Court’s opinion on abortion has not changed, and therefore the judicial branch should not enforce or defend anti-abortion policy. Supreme Court justices ought not to formulate and modify existing law through the shadow docket merely because they have the power to do so. But their recent string of successes may set the Court down a slippery slope.
In the last term, the Court has made real law on Covid restrictions and gatherings in which they prioritized religious liberty over national health — a decision that, Greenhouse suggests, would have been more scientifically reasoned if pursued under the normal docket. A significant feature of the regular proceedings of the Supreme Court that is excluded from the shadow docket process is amicus curiae, a procedure that provides the court with an impartial expert to inform the justices’ rulings of the case. Perhaps a more direct, scientifically-bolstered warning of the risk that religious gatherings posed on public health would have led to a different outcome.
Public opinion and politics have always influenced the court, just as court decisions have influenced public opinion. Whether this is an intended consequence, or a major flaw within our separation of powers, it is an undeniable feature of our government. Despite such persuasions, the Supreme Court must maintain consistency in its rulings with respect to the Constitution and the precedents set by previous cases.
In The Federalist Papers, Alexander Hamilton famously writes that the Supreme Court is compelled by “neither FORCE nor WILL, but merely judgment,” making it the least dangerous branch of the federal government. Amidst the hurricane of politics and conflict within Congress and the executive branch, the Supreme Court was intended to ground the country in fairness and reason through purely intellectual assessments of the defined set of ethics outlined by the Constitution. Yet, through the abuse of the shadow docket process, the Supreme Court has become the primary vessel by which political whims and personal passions are cemented into temporarily unassailable law. The shadow docket has weaponized the force of the Supreme Court to rapidly accelerate political desires and allow personal ideologies to precede our constitutional framework.