Judicial Transparency And The Future Of The Supreme Court's Shadow Docket

The Supreme Court just upheld one of the most restrictive abortion laws in the country. But! No oral argument, no deliberation, just a snap midnight ruling out of the public eye.

"No one was expecting for the whole question of Roe vs. Wade or whether Roe vs. Wade still matters for the state of Texas to be decided on the shadow docket,” NYU's Melissa Murray says.

The shadow docket. Heard of it? Both liberal and conservative legal scholars are saying its urgently important to pull the shadow docket into the light.

“You should definitely care about the shadow docket if you enjoy living in a democracy," Murray says. "Let's just be very clear. The absence of transparency is what makes the shadow docket so alarming.”

Today, On Point: The Supreme Court's shadow docket.

Melissa Murray, professor of law at New York University. Co-host of the Strict Scrutiny podcast, which follows the Supreme Court. (@ProfMMurray)

Heather Cox Richardson, professor of American history at Boston College. Author of the Letters from an American newsletter. (@HC_Richardson)

Dror Ladin, senior staff attorney for the ACLU.

What is Texas Senate Bill 8?

Melissa Murray: "The court's ruling allowed a Texas law, SB8, to go into effect in that state. The law prohibits most abortions after about six weeks of pregnancy, and it has no exception for rape or incest, as most abortion laws do. And more interestingly, it not only prohibits abortion, it actually provides a procedural mechanism that avoids state enforcement of the law. And instead, deputizes private citizens in Texas to sue other Texans for providing abortions, or for even assisting other people in seeking and obtaining an abortion.

"And it provides significant financial incentives to those private citizens to bring these civil suits in Texas state court. So, for example, there is a $10,000 bounty if you prevail on one of these suits brought against someone who has provided an abortion or who has quote-unquote, 'aided or abetted an individual in seeking and obtaining an abortion.' And if you prevail in a Texas lawsuit on one of these issues, then you are also entitled to your attorney's fee. So there are significant incentives for individuals to file these suits against their fellow Texans."

Can you be sued for providing an abortion?

Melissa Murray: "The way that I read it, you can definitely be sued for providing an abortion. So this puts providers on the hook. And they can be sued every single time they provide an abortion. So the prospect here is of multiple lawsuits throughout the course of a month, or a year or whatnot. And if you were a physician in Texas, every time you go to renew your license, you have to disclose if you have been sued for something.

"And so can you imagine being a provider and you've been sued multiple times because you have provided an abortion in Texas. So it's a massive deterrent. And I think that's important to underscore for your listeners. A lot of this law is not necessarily about what is going to happen in courts. It's about what's going to happen on the ground. And what this law does is essentially chill and deter what is, at least at this point, still constitutional conduct in Texas and throughout the country."

On the shadow docket 

Melissa Murray: "The term shadow docket was coined in 2015 by a Chicago law professor, William Baude. And the term is a catchall for a body of the Supreme Court's work that essentially focuses on emergency appeals to the court. So it is distinct from the court's ordinary docket, which is known as the merits docket. Cases that are decided on the merits docket, and these are the cases that we typically talk about, on shows like this.

"But they are cases that have typically been litigated all the way through the lower federal courts and then appeal to the Supreme Court. They've gone through the whole certiorari process. So the court has read the petition for certiorari. There's been a briefing about whether the court should grant review. The court ultimately does grant review.

"There is full briefing on the case with both sides filing papers explaining their positions. And then there is actually oral argument, where the advocates come before the court and actually get to duke it out and make their best cases before the court. So you have this very robust adversarial process on the merits docket that ultimately culminates in the court issuing a decision where, you know, if it's a split decision, the majority explains why they are doing something. And then the dissent gets to register their objections to what the majority has done.

"On the shadow docket, these cases are presented on an emergency expedited basis. So, you know, typically these kinds of emergency appeals would often come up in death penalty cases, for example, where time is of the essence and you're trying to figure out if there is a reason to stop an execution or to continue with it. So the shadow docket has been around for a long time and it is part of the court's work. It's a way for the court to deal with things that have to be decided in a relatively quick fashion. But it is distinct from the merits docket, and it doesn't have the same kind of transparency that the merits docket has."

What's the 'problem' with the shadow docket? 

Melissa Murray: "I think one of the reasons that people are lost is because this is procedure, it's not the substance, it's not the merits of whether this law is constitutional or not. I think everyone understands that this law, which prohibits abortion at six weeks, is patently unconstitutional because it violates two existing Supreme Court precedents.

"The fact that the court recognizing that these precedents are in play, and that this law presents very real constitutional questions, but nonetheless determined that because of these procedural quirks, it was going to allow the law to go into effect. And to do it on the shadow docket, in an expedited fashion, without the benefit of full briefing and without the opportunity for oral argument, and without a lot of explanation for why they were doing it.

"Their decision was about a paragraph and a half. I think that's the problem with the shadow docket. You are getting real decisions that have substantive implications on the ground for millions of Americans, and you're getting it without the kind of transparency and deliberation that we typically would expect of the work of the Supreme Court, certainly on substantive constitutional questions like this, or on procedural questions that have substantive constitutional implications."

On the history and context of Texas's abortion law

Heather Cox Richardson: "It's important to take a step back and look at what this law actually does in the larger context of post-World War II American history. You need to remember that in the 1950s, and 1960s and 1970s, the Supreme Court, at the federal level, protected civil rights across America over state legislation that had traditionally kept certain minorities from voting, for example, from having equal justice before the law, from having economic justice. The Supreme Court steps in and it uses the 14th Amendment to apply the Bill of Rights to the states.

"And as soon as they begin to do that, there's an outcry, largely from the states and largely from the southern states that this is judicial activism and they want to get rid of it. But those laws are very popular. The laws that protect, for example, desegregated schools are really very popular. And there's a whole slew of them, including now Roe vs. Wade from 1973 that Americans have lived with and see as part of our heritage. The idea that the federal government is going to protect civil rights.

"That's why the courts became such a battleground, is because people who disapprove of those laws, who want to get rid of them, began to argue that the justices ought to apply a version of judicial interpretation called originalism, which would restore power back to the states to make laws about, for example, abortion or civil rights. And because of the fact that those federal laws or that federal interpretation is so enormously popular, you really couldn't overrule those laws in Congress, for example, because people won't stand for it.

"If you look at the numbers, for example, of people nowadays who approve of first trimester abortion, they're still extraordinarily high. And certainly most Americans like civil rights legislation as well. So what this Texas law does is more than simply attack the idea of first trimester abortions. What it does is it says we can't change the law at the federal level, and we can't really deal with the fact that we have protections for first trimester abortion through things like the Roe vs. Wade decision.

"So what we're going to do is we're going to move things back to the state level, but not at the state law, which can be attacked by the judicial system. We're going to return power to people on the ground, to vigilantes, to people who get a bounty for going ahead and enforcing the traditions or the customs of our state.

"And so while this is on the surface about abortion, and it certainly deals with abortion, and is going to be devastating to women who are seeking abortions in Texas and other states which are now seeking to emulate Texas, what it also does is it says that people on the ground who don't like, for example, pick your piece of civil rights legislation, they can get rid of that despite federal precedents. Simply by intimidating people, by making sure that their clinics close, or that they don't dare to vote. And that is precisely what happened in the American South between, you know, 1870 and 1964. It's really alarming, alarming for our democracy."

Letters from an American: "September 1, 2021" — "Last night at midnight, a new law went into effect in Texas. House Bill 1927 permits people to carry handguns without a permit, unless they have been convicted of a felony or domestic violence."