WASHINGTON — Shortly before midnight, the US Supreme Court released a brief order on a hot-button subject of national importance with potentially massive ripple effects.
That could describe last night’s order explaining the court’s 5–4 decision to let Texas’s 6-week abortion ban take effect while a constitutional challenge works through the lower courts. Or it could describe the order from April pulling back restrictions that California had imposed on small gatherings during the coronavirus pandemic. Or the one issued just before Thanksgiving last year halting certain COVID-19 rules in New York.
The Supreme Court’s handling of the Texas abortion law spurred the latest round of scrutiny — and criticism — over how the justices make consequential decisions via the “shadow docket.” The term refers to emergency petitions that ask for a swift ruling on time-sensitive issues, often while a case is still being litigated in the lower courts, without going through the usual monthslong process that involves rounds of briefing, public argument, and, ultimately, an opinion that explains the court’s reasoning and sets precedent for the rest of the country.
Justice Elena Kagan, one of the four justices who disagreed with the majority’s decision to let Texas’s SB 8 go into effect on Wednesday, wrote a short dissent blasting her colleagues for tipping the scales in favor of Texas and dramatically upending the state of abortion law in this way.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend,” she wrote.
The fight over SB 8 reached the justices on Aug. 30. A federal appeals court had paused proceedings before a federal judge in Austin — including a request by abortion providers to temporarily pause SB 8 while the case was pending — and the abortion providers filed an emergency application asking the justices to intervene. They asked the Supreme Court to either halt SB 8 directly to allow time for the lower courts to sort the case out or to at least allow the judge in Austin to rule before the Sept. 1 start date.
When the clock struck 12 a.m. Central time on Sept. 1, and there was no word from the justices, SB 8 became law in the state. It bans physicians from performing abortions after around the 6th week of a pregnancy and deputizes private individuals to enforce the law by filing a civil lawsuit against any provider they suspect of performing a now-illegal abortion or anyone else who knowingly helped facilitate an abortion covered by the law, including by paying for it. The law allows plaintiffs who win to collect at least $10,000 in damages per abortion, plus their legal costs; if a case is dismissed, however, the law bars judges from ordering the person who filed an unsuccessful claim to similarly pay up.
At 11:58 p.m. on Sept. 1, nearly 24 hours after the justices’ silence meant the law would take effect, the Supreme Court released an order. It confirmed that a majority of justices intended for SB 8 to go forward; four justices — Chief Justice John Roberts Jr. and Justices Stephen Breyer, Sonia Sotomayor, and Kagan — dissented.
The court has weighed in on a host of major political fights in recent years via the shadow docket — not always literally at midnight, but sometimes close. An Aug. 26 order halting the Biden administration’s effort at keeping a federal eviction moratorium active during the coronavirus pandemic came in a little before 9:30 p.m. Two days earlier, the court issued a one-paragraph order that mandated the administration resume a Trump-era immigration policy that forced people seeking asylum to wait in Mexico while their case was pending.
A survey of shadow docket activity during former president Donald Trump’s time in office by Steve Vladeck, a professor at the University of Texas School of Law, found that the Justice Department went to the Supreme Court more than three dozen times to halt lower court rulings against the administration; a majority of the justices sided with the government in more than half of those cases.
The shadow docket didn’t start under Trump, although it did get more attention given how frequently legal fights over administration policies and practices landed before the justices on that track. These types of emergency actions have been common for years in death penalty cases. People on death row who have lost every other option for halting their execution have petitioned the justices to step in at the last minute; these efforts are usually unsuccessful.
University of Chicago Law School professor William Baude is credited with coming up with the term “shadow docket.” In a 2015 op-ed in the New York Times, he noted that the court had a history of handling politically and socially fraught issues via the shadow docket. For instance, Baude, who had clerked for Roberts, pointed out that there were orders related to whether same-sex couples could get married while constitutional challenges worked their way through the lower courts, ultimately culminating in 2015’s landmark decision that recognized a nationwide right to marriage.
In the months leading up to the 2020 presidential election, the justices weighed in on a string of cases via the shadow docket that dealt with how people could cast their ballot during a deadly global pandemic. There were orders that restricted voting options, including allowing Alabama to ban local officials from offering curbside voting for people with disabilities and reinstating a South Carolina law requiring absentee voters to have someone witness the signing of their ballot. There were orders that permitted some states to extend deadlines for absentee voters — including in Pennsylvania and North Carolina — and an order blocking an extended timeline in Wisconsin.
The court generally considers four factors when deciding whether to intervene in a case on an emergency basis: whether there’s a good chance at least four justices would vote to hear the case later when it formally reached the court; whether there’s a “fair prospect” that the justices would reverse whatever decision is before them on an emergency basis; whether a party would face “irreparable harm” absent immediate action from the court; and, finally, who would be hurt most in the meantime.
In the Texas case, the dissenting justices wrote that their colleagues had turned the purpose of the shadow docket on its head. Roberts pointed out that there hadn’t been any ruling from a federal appeals court yet on the procedural questions that the majority cited in letting SB 8 take effect, and he wrote that the court shouldn’t upend the status quo — all but halting abortion access in Texas — until those issues could at least get a little more airing below.
The other three dissenters wrote separately to make clear they believed SB 8 was unconstitutional; Roberts didn’t go that far. Kagan focused on the shadow docket issue, writing that it was a problem for the court to effectively decide a major case like this one in just a few days.
“Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” Kagan wrote.
Sotomayor and Breyer also called out the majority for letting the law take effect under these circumstances and underscored how much it would harm pregnant people in Texas in the meantime. Sotomayor cited a statistic presented by abortion providers that around 85% of abortions performed in the state took place after the 6-week mark.
“The Court’s order is stunning,” Sotomayor wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”