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Alito’s political broadside against Supreme Court critics — and how it misfires

President Donald Trump talks with Supreme Court Justice Samuel A. Alito Jr. in the Oval Office in July 2019. (Jabin Botsford/The Washington Post)

Supreme Court Justice Samuel A. Alito Jr. issued a remarkably forceful rebuke to critics of the Supreme Court on Thursday. He defended the court’s use of the “shadow docket” to make significant decisions favoring conservatives on issues like abortion, and he alleged those critics are attempting to “intimidate” and “damage” the court.

Alito’s broadside echoes the increasing conservative defenses of the practice, in which the court often decides whether to suspend a law before the court can fully review it — generally without explanation or even stating which justices voted how. Recently, the court used the shadow docket to stop President Biden’s extension of the coronavirus evictions moratorium and to allow a highly restrictive Texas law, which effectively bans abortion after six weeks, to go into effect. The left has argued the latter decision significantly undermines Roe v. Wade, without so much as hearing the arguments.

Congressional Democrats have put this practice under scrutiny, including at a Senate hearing this week, as such decisions from an increasingly conservative court have gone against them with greater frequency.

But the defenses offered by Alito and others tend to either ignore or gloss over some key context.

As The Washington Post’s Robert Barnes writes, Alito pitched the scrutiny as less a legitimate critique and more an attempt to game the system:

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Alito said. “And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
“The real complaint of these critics is that we have granted relief when they think it should have been denied, and we have denied relief when they think it should have been granted,” he said.
“If they want to criticize us on those grounds, fine, let them make their case. But attempting to disguise their real complaint with a lot of talk about the sinister, secretive shadow docket is unworthy.”

The argument is basically that the people are just mad that decisions made on the shadow docket are suddenly going against them. The sentiment was echoed this week by Sen. Ted Cruz (R-Tex.), who said, “What Democrats call a ‘shadow docket’ is the ordinary operation of every court that has been in existence since the ratification of our Constitution.”

It’s true that the shadow docket is, as Cruz said, part of the court’s normal operations. The court can’t hold full hearings on every procedural issue or request for an injunction.

But the question at hand isn’t whether the tool by itself is bad or improper; it’s whether it’s being wielded improperly — in ways that are either inconsistent or go significantly further than they should. It’s whether the court is using a tool that involves less transparency and due diligence to issue more far-reaching decisions.

That’s the heart of Democrats’ argument on the shadow docket, and it’s best exemplified by the decision in the Texas abortion case. The court had a decision to make one way or another on halting the law. The fact that it allowed a law to move forward that is significantly more restrictive than the standard it set out in Roe in 1973 is why this is a valid topic of conversation. It would be par-for-course to halt a law that rolled back the 24-week viability standard set forth by Roe, and courts have done so repeatedly. But the court in this case went in the other direction, leading to suggestions this is a precursor to dismantling Roe.

There’s also the matter of how often the shadow docket was successfully used by the political right in recent years. According to data kept by University of Texas law professor Stephen Vladeck, the Trump administration dramatically increased its emergency requests relative to its predecessors — from just eight in the previous 16 years — one every two years — to 41 in four years.

And those requests were largely successful. As Vladeck testified earlier this year, “Not counting one application that was held in abeyance and four that were withdrawn, the Justices granted 24 of the 36 applications in full and four in part.”

That success rate is pretty extraordinary. Numbers crunched by Reuters show that in 2020, the court granted 10 of 11 emergency requests from the Trump administration and 10 of 15 from religious groups, but only about one-third of requests from state and other government groups, and precisely zero out of 97 from other private parties.

Vladeck also argues that the most recent uses of the shadow docket are simply more substantial and more favorable to the right, from a qualitative standpoint. “What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck told the Atlantic’s Adam Serwer. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.”

To pretend this is just about the adversity of the rulings is to severely oversimplify the argument. We’ve perhaps come to expect that from Cruz, but from a sitting justice?

The other key point is in the idea that the term “shadow docket” itself is some kind of loaded political term coined by the left. “Democrats are fond of concocting ominous terms like ‘dark money’ and ‘shadow docket,’ ” Cruz maintains. Alito calls it a “catchy and sinister term” used to paint a picture of a “dangerous cabal that resorts to sneaky and improper methods to get its ways.”

It’s true that terminology matters, and casting things in terms like “dark money” can color perceptions.

The reality is, though, that this is not just some term that was recently made up by Democrats. In fact, the person who really brought it into common use was actually a former clerk to Republican-appointed Supreme Court Justice John G. Roberts Jr., William Baude.

In a 2015 paper, Baude pointed to the problems with what he labeled the shadow docket.

“Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future,” Baude wrote for the New York Times, adding: “And because we don’t even know which justices have joined most of the orders, we don’t know which justices are responsible, and we don’t know whether the justices are being consistent and principled from case to case.”

This is also an issue that has seemed to interest conservatives — and even conservative justices — relatively recently.

When the House first held a hearing on the shadow docket early this year, some Republicans on the committee expressed reservations about its use. Rep. Louie Gohmert (R-Tex.) seemed to support the idea of requiring justices to put their names on the decisions, saying, “I think Congress does have authority to require such a thing.” Rep. Darrell Issa (R-Calif.) even floated the idea that Congress could select some of the more significant shadow-docket rulings and write to the court on a bipartisan basis requesting more information about them.

Back in 2015, shortly after Baude’s paper on the “shadow docket,” GOP-appointed Supreme Court Justice Clarence Thomas objected to the court using it to seemingly pave the way for legalizing same-sex marriage. After the court broke new ground by denying a request to halt same-sex marriages in Alabama — again without explanation — Thomas called the move “indecorous.”

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”

Thomas concluded: “I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.”

Today, it’s the court using the same tool to break new ground on abortion restrictions — and perhaps tip its hand on a hugely significant social issue — before a case can be fully heard. Maybe both instances raise questions about whether that’s the way things should be done?