The Shadow Docket, a tool used by the supremes to decide major rulings on the sly, showed just how powerful and dark this legal instrument can be in a court no longer able to be called supreme in any sense of the word.
The Supreme Court’s recent reliance on the so-called shadow docket to make major rulings — on display, this week, in its decision to let Texas end legal abortion after six weeks, at least for now — throws the problem of judicial power in a representative democracy into sharp relief.
First, some background. The shadow docket refers to emergency orders and decisions made outside of the court’s regular docket of cases, usually without oral arguments. The term was coined six years ago by William Baude, a law professor at the University of Chicago, but the division between regular cases and this more specialized set has been around for decades. All it takes to get on the docket is to appeal to one justice, who then decides whether to forward the matter to the rest of the court.
Abusive use of said procedure over a short period of time shows how this court does business.
In the past five months, the Supreme Court has used the shadow docket to strike down Covid restrictions on group religious activities in private homes, force President Biden to reinstate the Trump-era “remain in Mexico” policy for asylum seekers from Central America and block the extension of an emergency federal ban on evictions, putting countless Americans at risk of homelessness.
Now comes SB8, the first step to totalitarian government from this writer's perspective.
The vote on the Texas abortion law came on Wednesday, in the dead of night, when a narrow majority of the court declined to stop Texas from instituting a new ban on abortions past the sixth week of pregnancy, which is often before many women even know they are pregnant. Under the law, Texans can sue anyone who assists in the procurement of an abortion, from the doctor who performed the procedure to the taxi driver who delivered the patient to the clinic to the family member who gave her the cash to go. Successful plaintiffs are eligible for a $10,000 bounty, plus legal fees.
The law is a flagrant violation of Roe v. Wade. But because Texas has deputized private citizens to enforce the ban rather than rely on executive authority — a deliberate choice meant to prevent federal courts from blocking the law — the court has declined to act against the ban, citing the “complex and novel antecedent procedural questions” of the case. For Justice Sonia Sotomayor, this is nonsense. “The court,” she wrote in her dissent, “has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.”
As stated before, 1984 looms, for now, it's woman needing an abortion, tomorrow, SB8/2 can apply to anyone differing from the norm of being straight, white, religious and conservative.
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