Federal Courts and Nominations

CAC Statement for Hearing on “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket”

The federal judiciary, with the Supreme Court at its head, provides in our constitutional democracy the promise of access to justice, in aid of establishing a government that is both accountable to the people and protective of their rights and liberties. But the Court has far too often fallen short of that promise.

Public faith in the Court’s ability to administer equal justice under law has been shaken for a number of reasons. Among them is the Supreme Court’s emergency orders process—known as the shadow docket. When the Court issues orders as part of its shadow docket, it is all too often acting without the sustained consideration, reflection, transparency, and accountability Americans expect from their highest Court. In today’s hearing, the Senate Judiciary Committee rightly focuses on the egregious shadow docket ruling with respect to S.B. 8, Texas’s unconstitutional restriction on the right to access abortion care. But this ruling is just the most recent in a series of troubling emergency orders—including orders that had to do with the federal eviction moratorium and the Trump Administration’s “Remain-in-Mexico” asylum policy—that should concern lawmakers and the public alike. With its shadow docket rulings, the Court is deciding matters of life and death and issues of vital importance to the daily lives of people in this country—and sometimes shifting the law significantly in the process—in ways that are not in line with the hallmarks of fairness and transparency we expect and deserve from the Supreme Court.

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