OP-ED: Justice Alito Shadowboxes With Shadow Docket Critics
Last Thursday, Justice Samuel Alito visited Notre Dame Law School to deliver remarks responding to criticism of the Supreme Court issuing substantive orders in major cases through its emergency docket, rather than through its typical, more deliberative process of full briefing and oral argument. In what has come to be known as its so-called shadow docket, the court’s emergency procedures operate largely behind closed doors. The results mostly lack the detailed explanation about the court’s decision-making process.
Instead of meaningfully engaging with the pros and cons of the shadow docket, Alito resorted in his remarks to shadowboxing, taking airy punches at strawmen.
Let’s first review developments of recent weeks. Most prominently, the court has used the shadow docket to allow a six-week abortion ban in Texas to stand, essentially nullifying Roe v. Wade for those seeking to exercise their right to abortion in the Lone Star State while challenges to the ban’s constitutionality work their way through the courts. The court also dealt with shadow docket rulings against the Biden administration’s eviction moratorium—designed to provide relief to renters and protect the public from the spread of COVID-19—as well as against the Biden administration’s rescission of a dangerous Trump-era immigration policy.
As high-profile as those shadow docket orders from the court were, however, they follow a line of others, the full import of which may have escaped popular attention. As my organization explained over the summer in testimony to the Presidential Commission on the Supreme Court of the United States, “One of the most troubling developments of recent years is the Supreme Court’s issuance of unsigned, and often unexplained, stay orders stopping courts from vindicating the right to vote close to an election.” Through such orders, “the Court has been rewriting the rules of our democracy.” Moreover, this year “in a string of closely divided shadow docket orders, the court repeatedly held that the Free Exercise Clause required a religious exemption from state laws that sought to prevent the spread of the COVID-19 virus.” In these orders, “the Court has made new law […] mandating religious exemptions in what could prove to be a very significant range of cases.”
To be sure, sometimes expedited treatment by the court is useful or even necessary. Contrary to Justice Alito’s presentation, however, that is not what the court is being criticized for in its shadow docket practice. In most cases, especially, as in the examples listed above, when new law or severe consequences in highly contested issues will result, the shadow docket should be set aside in favor of the bright light of deliberation, openness, and transparency.
It isn’t just the press or outside observers—the focus of Alito’s ire in his remarks—making this point. As Justice Sonia Sotomayor has explained, misuse of the shadow docket both “undermines the public’s expectation that its highest court will act only after considered deliberation,” even as it “erodes the fair and balanced decision-making process that this Court must strive to protect.” And as Justice Elena Kagan wrote in dissent from the Texas abortion order, the conservative 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.” Even Chief Justice John Roberts Jr. complained in his dissent to the Texas abortion order that, though the questions presented were “particularly difficult,” the court acted ”without ordinary merits briefing and without oral argument.”
Frankly, Alito gave away the game in his representation of the stakes on this issue. “A catchy and sinister term has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and dangerous ways to get its way,” he said. But more important, Alito attempted to define the shadow docket controversy as one about procedure, about taking criticism for orders “issued in the dead of night.” Yet as we have seen, the problem is about the substantive work the court is doing through its shadow docket, not the time of day it is doing it. If the public sees the court’s work as “sinister”—or, in substance, illegitimate—it is the fault of the court itself, and hardly due to any impromptu branding campaign by activists or critics in the press.
Alito was right about one thing. He said, “What the political branches do to the judiciary is their responsibility and they are answerable to the people and posterity.” But our courts, too, are a critical part of our democratic system and are in no way separate from it. Their power depends, ultimately, on the confidence of the people in the courts’ ability and commitment to rule fairly and impartially. That means our courts, up to and including the Supreme Court, must do their most significant work out in the open where the people can see it. Whether ruling on the right to abortion, the right to vote, or any other issue at the center of our lives, the Supreme Court must do so in the light of day—not in the shadows.