'Rank nonsense': Supreme Court Justice Alito fires back at criticism of 'shadow docket,' blames media
WASHINGTON – Supreme Court Associate Justice Samuel Alito on Thursday defended the court's handling of a contentious Texas ban on most abortions and pushed back on criticism of how the justices deal with emergency cases on the "shadow docket."
His remarks came a day after the Senate Judiciary Committee held a hearing on the court's expedited docket and after a summer in which a majority of the court handed down rulings overturning President Joe Biden's eviction moratorium, blocking his ability to unwind a Trump immigration policy and allowing the Texas ban to stand.
"In recent weeks, the media has been abuzz with talk about this 'shadow docket' and some political figures have joined in," Alito said at Notre Dame Law School, noting that critics have called attention to late-night rulings that often come without substantial explanation. "This picture is very sinister and threatening, but it is also very misleading."
Alito noted the court's emergency docket is not new and said the justices are working with what they've been handed: Appeals for temporary injunctive relief that often must be decided rapidly. He slammed the suggestion that the court is timing late-night rulings to limit criticism as "rank nonsense" and framed concerns about the number of cases as "silly."
"We do not solicit these emergency applications. Parties file them," Alito said. "And when they file them we are obligated to act on them."
Alito's hour-long remarks come as court observers are still debating the meaning of the term that ended in July, the bevy of emergency decisions handed down this summer and a new term that begins next week that is brimming with contentious issues such as abortion, gun rights and the death penalty. Meanwhile, a series of polls show a drop in support for the court – particularly among Democrats.
Stephen Vladeck, a professor at the University of Texas at Austin School of Law who has been publicly raising concerns about the emergency docket, said it was "refreshing" that Alito chose to speak publicly about the process. But Vladeck also said Alito "cherrypicked and otherwise misstated" some of the criticism of the court's procedures.
"The concerns that I and others have raised are not that the court is simply issuing more of these orders. Nor is it that they should generally grant or deny relief," Vladeck said. "It’s that the court is being inconsistent in how it is resolving these cases, inconsistency that is especially problematic as these rulings affect more and more people."
Vladeck added that the court is increasingly treating its emergency application rulings as precedential, requiring lower courts to adhere to them – notably in a series of cases earlier this year in which a majority struck down COVID-19 restrictions that limited the size of indoor worship services.
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.
Alito, nominated by President George W. Bush and confirmed in 2006, blamed much of the criticism of the shadow docket on the media and on politicians. Journalists may "think that we can just dash off an opinion the way they dash off articles," he said, but the process in fact takes considerably more time. He said late-night rulings often occurbecause of deadlines presented by the case itself.
In the Texas emergency appeal, Alito noted the state's ban on most abortions after six weeks of pregnancy was set to take effect at midnight on Sept. 1. But in that case, the Supreme Court did not hand down its 5-4 ruling for now allowing the law to remain in effect until just before Sept. 2, nearly 24 hours after it had already taken effect.
"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," Sen. Dick Durbin, an Illinois Democrat and the chairman of the Senate Judiciary Committee said Wednesday. "Constitutional rights for millions of Americans should not be stripped away in the dark of night."
Ruling on a procedural issue in the Texas case, the majority of the court said it did not have the ability to block enforcement of the ban on most abortions because the law put the enforcement of the ban in the hands of private parties bringing their own lawsuits against violators – not with the state officials who had been sued by abortion providers. Alito slammed critics who described the decision as overturning the court'slandmark ruling in Roe v. Wade.
"Put aside the false and inflammatory claim that we nullified Roe vs. Wade," Alito said. "We did no such thing and we said that expressly in our order."
It is true that by ruling on procedural grounds the court never reached the fundamental question of whether the Texas abortion law was unconstitutional. But critics have countered that by not temporarily blocking the law people entitled to an abortion in Texas under Roe are currently unable to get the procedure. Chief Justice John Roberts, also a Bush nominee, sided with the court's liberals in that case, saying he would have blocked the law.
By training his attention on the media and members of Congress, Alito did not address similar criticism of the shadow docket that has been raised by other members of the court, including Associate Justices Stephen Breyer and Elena Kagan. Breyer was nominated by President Bill Clinton; Kagan by President Barack Obama.
"Without full briefing or argument, and after less than 72 hours’ thought, this court greenlights the operation of Texas’s patently unconstitutional law banning most abortions," Kagan wrote in dissent in the Texas abortion case this month. "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."
Minutes after Alito finished speaking, a new emergency case was filed at the Supreme Court asking the justices to halt enforcement of New York City's mandate that school teachers receive COVID-19 vaccines. That requirement is set to take effect Friday.