Public support for the Supreme Court has fallen dramatically, and the Court has only itself to blame. For one thing, it is unseemly for Justices to justify their decisions in the media. Decisions should speak for themselves.
For another, it is also unseemly for Justices to give speeches in which they criticize the media. Freedom of the press exists so that reporters can criticize public officials, and that includes judges.
But my biggest gripe is with the Court’s “Shadow Docket.” Sometimes a party cannot wait for the full process to play out, so he or she asks for a temporary order, which is often a way to preserve the status quo. What we have recently witnessed is quite different. Our highest court looks more like a seat-of-the-pants middle-of-the-night operation than a deliberative body entrusted with interpreting the Constitution.
The recently-coined and somewhat sinister term “Shadow Docket” refers to what has long been known as the “Orders” docket. It is a useful mechanism for procedural and emergency orders, which can be important, for example whether to stay an execution. But for the most part they are routine scheduling or other matters that do not have an impact on the public at large.
The Court’s decisions that tell us “what the law is,” to quote Chief Justice Marshall from 1804, come to us by way of the “regular” docket. Those rulings don’t happen overnight. Most requests for review are turned down, but if the Court grants “cert.,” the parties later submit briefs and the Court hears oral arguments. The Justices then meet to discuss the case, the Chief Justice assigns the opinion to a member of the Court, and numerous draft opinions are circulated.
At the end of that process, the Court announces its decision in public. We can read the opinion or learn about it in the press. Whether we approve or disapprove, we know that the Court has gone through a careful, painstaking process. We have seen this play out in such high-profile cases as Roe v. Wade in 1974, Bush v. Gore in 2000, District of Columbia v. Heller (the gun rights case) in 2008, Obergefell v. Hodges (the gay marriage case) in 2015, and countless others.
The just-started 2021-22 Supreme Court term is, according to one leading commentator, “the most important term of the century.” The Court will consider cases involving abortion rights, gun ownership rights, the death penalty verdict in the Marathon Bombing case, public funding for sectarian schools, and other subjects that will affect life in America. The rulings will likely reflect the ideological differences among the current Justices, but that is nothing new. The law will be what five or more Justices say it is.
The “shadow docket” is another matter. It allows a party to file an “emergency” motion asking the Court either to permit or prevent something from happening. In recent times it has been used with increasing and disturbing frequency. During the pandemic, the Court decided whether to interfere with local officials’ orders limiting crowd size. The Court’s four liberal Justices, joined by Chief Justice Roberts, initially declined to second-guess such public health decisions. But after Justice Amy Coney Barrett joined the Court last fall, the 5-4 division shifted the other way, and the Court tended to overturn such executive orders on First Amendment grounds.
Those rulings may have raised an eyebrow, but the most notable recent shadow docket decision is the Court’s refusal to put the Texas “heartbeat” law on hold. It did not uphold the law, it just stood aside. The result was that the law known as S.B. 8 has effectively overruled Roe v. Wade in Texas.
It would be one thing if the Supreme Court were to decide in regular course to overrule Roe. If it does, then every state will be free to go its own way within the parameters of the Court’s decision. Yet the State of Texas has managed to short-cut the process and thumb its nose at the Supremacy Clause of the Constitution.
The Court could have stood up for itself and the Constitution by putting a hold on S.B.8. Doing so would not have been a radical or pro-choice ruling. It would simply have left the law in Texas where it has been since 1974. If next spring the Court says that the seven-Justice majority was wrong in 1974, then Roe v. Wade will become history. We will accept the decision because that’s what we do.
Maybe the Court will cure what I regard as an unforced error, as the Justice Department has asked it to do. But in the meanwhile, Texas women who choose to have an abortion and are more than six weeks pregnant have no choice but to travel to another the state, if they can afford it, in order to exercise their constitutional rights.