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Democrats Announce Probe Into Potential ‘Abuse’ of SCOTUS ‘Shadow Docket’

Democrats Announce Probe Into Potential ‘Abuse’ of SCOTUS ‘Shadow Docket’


Senate Judiciary Committee Chairman Dick Durbin says his committee will hold a hearing on the Supreme Court’s “abuse of the ‘shadow-docket,'” after the highest court allowed a Texas law banning abortions after six weeks of pregnancy to remain in effect. As coined in 2015 by University of Chicago law professor William Baude, “shadow docket” is a term used by legal observers to describe the use of emergency orders and summary decisions by the Supreme Court of the United States without the opportunity of oral argument.

The Supreme Court, in an unsigned and expedited opinion, declined to block the law, which also allows citizens to sue anyone who helps a woman get an abortion. Absent a federal law from Congress, the federal government has little recourse, although President Joe Biden said he has asked the Justice Department to review whether it can limit the action of citizens enforcing the state law.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” Durbin said in a statement. “This anti-choice law is a devastating blow to Americans’ constitutional rights—and the court allowed it to see the light of day without public deliberation or transparency. At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative court’s abuse of the shadow docket.”

In a press release, Durbin’s office pointed to Associate Justice Elena Kagan’s dissenting opinion, in which she said the ruling “illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of the process.”

Democrats are railing against the Supreme Court’s decision as an affront to Roe v. Wade, while some Republicans — but not all — are applauding the Supreme Court decision as a victory for the unborn. Some of the most vocal Republicans have had muted responses. Senate Majority Mitch McConnell called the Supreme Court’s majority opinion “highly technical” when speaking with reporters Thursday. “Whether it leads to a broader ruling on Roe v. Wade is unclear at this point,” McConnell said.

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