WASHINGTON – Members of a Senate panel battled Wednesday over the Supreme Court’s “shadow docket,” focusing on a contentious decision this month that allowed a Texas law banning most abortions after six weeks to remain on the books for now//.
Critics framed the one-paragraph ruling in the Texas abortion case as ideologically driven and questioned the expedited process the court uses in such disputes. Republicans noted the court’s emergency process isn’t new and they accused progressives of mounting a pressure campaign to “bully” the court.
The 5-4 decision in the Texas case is the latest to bring the shadow docket under scrutiny at a time when progressives are calling for changes at the Supreme Court. The justices also recently unwound President Joe Biden’s eviction moratorium on the expedited docket and required the administration to keep migrants seeking asylum in Mexico.
“The Supreme Court has now shown that it’s willing to allow even facially unconstitutional laws to take effect when the law is aligned with certain ideological preferences,” said Sen. Dick Durbin, an Illinois Democrat and the chairman of the Senate Judiciary Committee. “Constitutional rights for millions of Americans should not be stripped away in the dark of night.”
Iowa Sen. Chuck Grassley, the top Republican on the committee, said the Supreme Court “did something very ordinary” by declining to step in to block the Texas law, which bans most abortions once doctors detect cardiac activity. The court ruled just before midnight Sept. 1 on a procedural matter, not the constitutionality of the law.
“This campaign against the court and against individual justices has hurt the public,” Grassley said. “The dishonest rhetoric doesn’t help the American people understand the issues.”
The Supreme Court usually decides a case after the parties submit months’ worth of legal briefs and take part in an hourlong oral argument. The opinions are usually signed – so it’s clear how each justice voted – and they generally involve the court parsing complex questions about how to apply the Constitution or a federal statute.
Shadow docket disputes, by contrast, usually involve deciding whether to temporarily block a law while the underlying legal questions are considered by lower courts. The parties sometimes have days to file briefs and there are no oral arguments.
Though criticism of the shadow docket appeared to spark some bipartisan interest during a House hearing earlier this year, Senate Republicans on Wednesday appeared mostly aligned in arguing those concerns are overblown. It’s only the latest signal that congressional efforts to make changes to the Supreme Court face tough odds.
After President Donald Trump nominated three justices during his four years in office, conservatives on the court now ostensibly enjoy a 6-3 advantage. In the Texas case, Chief Justice John Roberts, a President George W. Bush nominee, voted with the liberal wing and argued for halting the law while the underlying lawsuit continued.
Several polls over the summer indicated support for the Supreme Court has dropped since the Texas decision, particularly on the left. Democratic support dived 22 points over the summer in a Marquette University Law School poll, for instance.
The legal fight over the Texas law continues in several courts simultaneously. A federal judge in Texas is set to hold a hearing Friday on a request by the Justice Department to temporarily halt enforcement of the abortion ban while the underlying constitutional questions are resolved. Abortion rights groups, meanwhile, brought a new challenge to the Supreme Court late last week in an effort to stop the law’s enforcement.
Nearly 50 years ago the Supreme Court ruled in Roe v. Wade that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. In 1992, in a case called Planned Parenthood v. Casey, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – about 24 weeks.
Several conservative states have approved laws banning the procedure prior to viability in an effort to challenge the court’s precedents, but most of those have been halted by lower federal courts. The Supreme Court will decide another major case this year challenging Mississippi’s ban on most abortions after 15 weeks.