Emergency appeals have become the tool of choice for the conservative movement.
The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.
Instead, in the middle of the night, five of the high court’s conservatives issued a brief, unsigned order allowing a Texas law that bans abortion at six weeks. The law also gives private citizens the authority to sue anyone who “knowingly … aids or abets” an abortion and rewards them with $10,000 if successful, essentially placing a bounty on anyone wishing to end a pregnancy, and anyone who might help them. Texas is now rewarding residents who snitch to the state on the most intimate details of other people’s lives.
“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor wrote in her dissent. “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Also remarkable was that the Supreme Court acted through its “shadow docket,” the decisions the justices make regarding emergency appeals such as death-penalty cases. Under normal procedure, cases take time to work their way through the lower courts, and are received at the Supreme Court with extensive records, briefs, and oral arguments. Ideally, this allows the justices to ensure that their hugely consequential decisions are properly informed and made as carefully as possible, weighing all the relevant legal and constitutional issues. But there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that. The shadow docket, though, now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.
Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.
“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”
The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.
“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”
Under Trump, the justices allowed policies such as the administration’s travel ban targeted at mostly Muslim nations, its prohibition against trans people serving in the military, and its restrictions on asylum to go into effect. Under Biden, they have barred the administration’s attempt to prevent evictions because of the coronavirus pandemic and accepted a lower-court ruling demanding that the White House reimpose the controversial Trump-era “Remain in Mexico” policy, which forced migrants into “precarious conditions in dangerous Mexican border cities where thousands became victims of kidnappings, rapes and extortion,” according to The Washington Post. The decision compels the Biden administration to renegotiate an agreement with a foreign country reached during a prior administration; deference to the president’s constitutional authority to set foreign policy, which the justices had memorably cited in Trump-era cases, was suddenly absent.
“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.
The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.
Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.
This ruling is less a description of a complex legal challenge than a road map. As Mary Ziegler writes, the Texas law was strategically designed to evade legal restrictions, and the majority read the script that was handed to it. Republican-run legislatures now know that they can pass such laws and the Supreme Court will pretend to be unable to block them.
Among the Republican appointees, only Chief Justice John Roberts had enough respect for the right’s purported doctrines of judicial minimalism to vote to wait for the case to reach the high court through normal procedural channels. Ironically, though, the unsigned majority decision reflects a careful study of Roberts’s years of successfully managing the Court’s reputation. The decision does not say “Roe is hereby overruled,” but it tells states exactly how they can effectively ban abortion if they want to. In that, it echoes Roberts’s own tendency to hide his preferred outcomes behind legal technicalities, the better to mime fidelity to constitutional principle.
“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” Roberts wrote in his dissent. But because five justices allowed the law to go into effect—and by implication, laws in any other state that wishes to emulate Texas—Roe has been neutralized. The only question is whether that decision is temporary, and whether the Court will eventually enact any restraints on the particular legal scheme Texas has pioneered.
“I don’t think those in the reproductive-rights community who are sounding the alarm that [the Court] really effectively overruled Roe in Texas are being hyperbolic,” Murray told me yesterday, prior to the Court’s written opinion. “The fact that the Supreme Court of the United States allows a law that patently contradicts its own statements about the right to an abortion to go into effect is essentially the Court signaling that it does not care about this right and it does not think this right should exist.”
Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.
Those are some of the views Republicans endorse by uncritically embracing and supporting President Trump. He is leading his party down a sewer of unabashed racism and willful ignorance, and all who follow him — and I mean all — deserve to feel the mighty wrath of voters in November.
I’m talking to you, Sen.
- Susan Collins of Maine. And you, Sen.
- Cory Gardner of Colorado. And you, Sens.
- Thom Tillis of North Carolina,
- Martha McSally of Arizona,
- Joni Ernst of Iowa,
- Steve Daines of Montana,
- Kelly Loeffler of Georgia and
- John Cornyn of Texas.
And while those of you in deep-red states whose reelection ordinarily would be seen as a mere formality may not see the giant millstones you’ve hung around your necks as a real risk, think again. Sen. Lindsey O. Graham of South Carolina and even Majority Leader Mitch McConnell of Kentucky, you should look at the numbers and realize you are putting your Senate seats — and the slim GOP majority — in dire jeopardy.
You can run and hide from reporters asking you about Trump’s latest statements or tweets. You can pretend not to hear shouted questions as you hurry down Capitol hallways. You can take out your cellphones and feign being engrossed in a terribly important call. Ultimately, you’re going to have to answer to voters — and in the meantime you have decided to let Trump speak for you. Best of luck with that.
It is not really surprising that Trump, with his poll numbers falling and his reelection in serious jeopardy, would decide to use race and public health as wedge issues to inflame his loyal base. That’s all he knows how to do.
Most politicians would see plunging poll numbers as a warning to try a different approach; Trump takes them as a sign to do more of the same — more race-baiting, more authoritarian “law and order” posturing, more see-no-evil denial of a raging pandemic that has cost more than 120,000 American lives.
Racism is a feature of the Trump shtick, not a bug. He sees the nationwide protests sparked by the killing of George Floyd as an opportunity not for healing and reform, but to stir anger and resentment among his overwhelmingly white voting base. Trump wants no part of the reckoning with history the country seems to crave.
This week, city officials in Charleston, S.C. — the place where the Civil War began — took down a statue of John C. Calhoun, a leading 19th-century politician and fierce defender of slavery, from its 115-foot column in Marion Square and hauled it away to a warehouse. Also this week, Trump reportedly demanded that the District’s monument to Confederate Gen. Albert Pike, toppled last week by protesters, be cleaned up and reinstalled exactly as it was.
Trump went to Arizona not just to falsely claim great progress on building his promised border wall, intended to keep out the “hombres,” but also to delight fervent young supporters by referring to covid-19 as “kung flu.” Weeks ago, Trump adviser Kellyanne Conway said that racist term was clearly offensive and unacceptable. But since Trump has made it into a red-meat applause line, Conway now apparently thinks it’s a perfectly legitimate way to identify the virus’s country of origin.
All the other Republicans who fail to speak up while Trump runs the most nakedly racist presidential campaign since George Wallace in 1968 shouldn’t kid themselves. Their silence amounts to agreement. Perhaps there’s enough white bitterness out there to carry the Republican Party to another narrow win. But that’s not what the polls say.
Trump’s antics are self-defeating. He’ll put on a racist show for a shrinking audience, but he won’t wear the masks that could allow the economic reopening he desperately wants. He may be able to avoid reality, but the Republican governors — including Greg Abbott of Texas and Ron DeSantis of Florida — scrambling desperately to contain new outbreaks cannot.
It’s almost as though Trump is determined to destroy the Republican Party. Let’s give him his wish.