“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.”
Just days before Monday’s start of the new Supreme Court term, Alito took aim at the political and media criticism that five members of the court had effectively overturned the constitutional protection of abortion in Texas.
The state’s new law prohibits abortions after six weeks of gestation — months earlier than allowed by the constitutional standards the Supreme Court has endorsed. The law employs a unique system of enforcement by which members of the public can bring civil actions against those who aid and abet the prohibited abortions.
Alito highlighted a recent opinion piece that said the court’s conservative majority was so eager to overturn Roe v. Wade that it didn’t wait for a case from Mississippi to be argued Dec. 1, which presents squarely the issue of whether to overturn the nearly 50-year-old precedent.
“Put aside the false and inflammatory claim that we nullified Roe v. Wade,” Alito said. “We did no such thing. And we said that expressly in our order.”
The majority opinion Alito joined let the Texas law take effect. It said the case raised unique questions that the challengers had not satisfied about who the proper defendant is for a lawsuit aimed at stopping the law.
In his speech Thursday, Alito read part of the opinion that said the challengers “raised serious questions” regarding the law’s constitutionality.
The four justices who dissented said the court should have put the law on hold while legal challenges played out. Three of them said the law was unconstitutional, and the practical effect has been that clinics in Texas have stopped providing abortions after six weeks. Roe v. Wade says states may not ban abortions before a fetus is viable outside the womb, which is generally recognized as 22-24 weeks.
Over the summer, the court in emergency rulings dissolved a moratorium on evictions that the Centers for Disease Control and Prevention had implemented because of the coronavirus pandemic, and told the Biden administration it had acted improperly in trying to rescind a Trump-era restriction on asylum seekers.
Alito defended the court’s actions in all three cases.
“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.”
Alito took aim at the media and the political branches — he noted that the Senate Judiciary Committee just held a hearing on the shadow docket.
He did not address that the criticism has come from his colleagues as well.
Justice Elena Kagan became the first justice to use the phrase when she dissented in the Texas case.
The majority “barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail,” she wrote, joined by Justices Stephen G. Breyer and Sonia Sotomayor.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”
In dissent in the eviction moratorium case, Breyer said the conservative majority should not have summarily concluded the CDC lacked authority to impose such restrictions.
“These questions call for considered decision-making, informed by full briefing and argument,” he wrote. “Their answers impact the health of millions.”
Alito listed, and rebutted, what he said were the common complaints about the court’s emergency docket, which is the way the court acts quickly in cases where a party faces irreparable harm by delay.
He listed and then rebutted the criticism of the emergency process: that the court “is deciding important issues in a novel, secretive improper way in the middle of the night, hidden from public view, without waiting for the lower courts to consider the issues, without proper briefing or oral argument and without issuing full opinions.”
Some of that is true, he said, but not nefarious.
The court must move quickly in such cases, he said, because they often come with a deadline. There may be no time for oral arguments. Briefing is not the same as in a regularly docketed case, but it is not insubstantial, he said.
And there is no reason to believe that just because the court often provides scant reasoning for its decision, it is not made with the usual deliberation, he said.
Again, he returned to the media.
“Journalists may think that we can just dash off an opinion the way they dash off articles,” Alito said. But, “when we issue an opinion, we are aware that every word we write can have consequences, sometimes enormous consequences. So we have to be careful about every single thing that we say.
“We do the best we can under the time constraints imposed by the situation.”
Berardino reported from South Bend, Ind.