The Supreme Court’s midnight ruling on Wednesday, which leaves in place the brand-new Texas law banning almost all abortions after the sixth week of pregnancy, drew separate opinions from each of the four justices who dissented. Justice Sonia Sotomayor’s may have been the bluntest — she accused the majority of “bury[ing] their heads in the sand.” But Justice Elena Kagan’s two short paragraphs were in some ways more blistering. In pointing out the court’s alarming record of inconsistency in its recent spate of late-night emergency orders, she spoke directly to its eroding legitimacy.
Rather than focus on the majority’s willingness to allow Texas to flout the 1973 ruling in Roe v. Wade, Kagan chose to highlight what the ruling said about the court’s “shadow-docket” — the calendar it uses to issue procedural case-management orders, as distinct from the lengthy substantive opinions it hands down after cases have been fully briefed and argued. As Kagan put it, the majority decision “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.” Although her critique is more technical and nuanced than those of the other three dissenting justices, it also gets to the two most important reasons the court’s refusal to intervene in the Texas case is so difficult to defend: It used an unsigned and barely explained order to short-circuit the constitutional rights of millions of Texas women; and its nonintervention over abortion differed blatantly from its aggressive interventions in the past year in religious liberty cases.
The shadow docket is nothing new; for as long as there has been a Supreme Court, it has issued orders to manage its docket while it decides which cases to resolve — and how. From 1802 to 1839, the court even had a rump docket, which allowed a single justice to handle the procedural minutiae. Even though most of the court’s procedural orders are relatively uncontroversial, there have also been some high-profile rulings: Orders blocking and then clearing the way for the execution of Julius and Ethel Rosenberg in 1953 and orders blocking and then clearing the way for the continued bombing of Cambodia in 1973 were issued from the shadow docket.
Two things have changed in recent years. First, the court is using these orders with far greater frequency to allow much-debated policies to go into effect. During the Trump administration, for instance, the justices issued 28 orders at the request of the administration that blocked adverse lower-court rulings while the government appealed. This had the effect of allowing the government to enforce policies that had been invalidated by every other court ruling on their legality. In contrast, the Supreme Court issued only four such orders during the 16 years spanning the presidencies of both George W. Bush and Barack Obama. The court is also using these orders far more often to directly block government policies at the outset of litigation, when lower courts have refused to do so. Since Justice Amy Coney Barrett joined the court in October, the justices have issued seven emergency injunctions to block state coronavirus restrictions, compared with a total of four injunctions directly blocking state laws issued by the court during the first 15 years of Chief Justice John G. Roberts Jr.’s tenure.
The second recent change is that the court is treating these orders as creating precedents that lower courts must follow. In April, for instance, the Supreme Court chastised the San Francisco-based federal appeals court for failing to properly follow four prior orders in coronavirus cases — none of which had been accompanied by any reasoning by the justices, which is typical of these unsigned rulings.
At least superficially, the ruling in the Texas case ran counter to these trends. By a 5-4 vote, the court refused to block Texas’s law from going into effect while litigation challenging it unfolded. It likewise refused to lift a lower-court stay that had frozen proceedings in the district court. The majority justified its nonintervention by flagging procedural questions that would have to be resolved before a court could decide whether the law, called SB8, violates Roe, even though no party before the Supreme Court was arguing that it did not.
But the very same 5-4 majority in the April case had reached out to block California’s in-home gathering restrictions on religious liberty grounds, despite a far more serious procedural roadblock — the fact that the court lacked the power to issue the order in question. Although the court had long held that relief in this context could be issued only for rights that are “indisputably clear,” the same justices who refused to intervene in the Texas case had no trouble issuing emergency relief in the California case based upon a new interpretation of the Constitution’s Free Exercise Clause to protect religious liberty. The court is not supposed to make new law through these kinds of shadow-docket orders, but it showed no compunction about doing so where alleged infringements on religion were at issue.
Defenders of the court’s California ruling emphasized the need to protect constitutional rights against state intervention even in cases raising procedural obstacles — on the ground that even short-term deprivations of our constitutional protections are “emergencies.” But that same logic was nowhere to be found late Wednesday night, as the majority allowed Texas to bar hundreds (if not thousands) of women from obtaining an abortion to which they have just as much of a constitutional right. In other words, if the court was justified in intervening in April to protect a new understanding of constitutional rights, it was surely justified in intervening Wednesday to protect an old one.
Kagan’s charge of inconsistency may seem modest compared with Sotomayor’s charge that the order was “stunning,” but it cuts deeper. It is not just an objection that the majority left in place the most restrictive antiabortion law since Roe; it is a claim that the majority is doing so without regard to its own recent precedents — a charge that goes straight to the court’s legitimacy. Rulings on the shadow docket are problematic enough when they fundamentally change the law without adequate explanation. But inconsistent rulings on the shadow docket, where the justices brush procedural obstacles aside to protect religious liberty but hide behind less-severe obstacles to allow a state to eviscerate the right to abortion, drive home the perception, if not the reality, that the court is advancing a partisan political agenda and not a legal one. Maybe there is a satisfying explanation for why the majority in these two cases reached such inconsistent results. But because they both came on the shadow docket, we’ll never know.