Texas, abortion and the tyranny of the shadow docket

If there was any doubt about the growing menace of the federal courts’ “shadow docket,” the Supreme Court’s disastrous and opaque ruling allowing an unconstitutional abortion ban to go forward in Texas has erased it. This shadow docket system has become the modern equivalent of the smoke-filled room, where decisions with far-reaching consequences are made in secret and without accountability. This is not how the court system, or democracy, is supposed to work. 

What’s more, the rise of this trend correlates directly to the influx of Trump-appointed judges to the federal courts.  

In the Texas abortion ban case, the process was shrouded in secrecy from the start. When the law was passed effectively banning abortions after six weeks, a Texas district court judge agreed to hold a hearing on a request by doctors and clinics for a preliminary injunction against it. That was scheduled for Aug. 30, the Monday before the ban was set to take effect. 

But Aug. 27, two Trump-appointed Fifth Circuit judges, Kyle Duncan and Kurt Engelhardt, joined by a very conservative Bush appointee, issued a three-sentence order that cancelled the hearing and stayed all other proceedings in the case. And that was it: The  judges included no explanation for their edict. The challengers immediately asked the court to allow the hearing or to decide the issue itself. In another dictatorial order with no explanation on Aug. 29, the same three judges refused the request. Score one for the shadow docket — the ban was moving ahead.

So on Aug. 30, Texas health care providers went to the Supreme Court, asking it to rule. But the Court did nothing while the law took effect on Tuesday night. Then, late on Wednesday, it issued a 5-4 one-paragraph order denying relief to the health care providers and authorizing the law to continue in effect. The majority, dominated by Trump-appointed justices, did not even explain why they rejected Chief Justice John Roberts’s call to temporarily suspend the law, so that lower courts and the Supreme Court could fully consider it with “full briefing and oral argument,” rather than through the hasty “shadow docket” edict.

The upshot: a terrible law was allowed to take effect without even a hearing on its constitutionality, as a result of peremptory orders by Trump appointees on the Fifth Circuit and the Supreme Court. As Justice Elena Kagan noted in dissent, the court’s ruling was just the latest example of its “shadow-docket decision-making” which has become more and more “unreasoned, inconsistent, and impossible to defend.” 

It’s also become far more common. By the end of the Trump presidency, his administration had sought 41 such shadow docket rulings from the court, compared with only eight during the 16 years of the Bush and Obama presidencies combined. 

The court granted almost 70 percent of the Trump requests, doing tremendous damage to rights in such areas as exemptions from crucial rules to help control the COVID-19 pandemic and immigration. So far under the Biden administration, such orders have done significant harm, including overturning the Centers for Disease Control and Prevention’s temporary ban on evictions and reinstating the horrific Trump “Remain in Mexico” asylum policy.

Meanwhile, the use of the shadow docket in lower courts is not limited to the Fifth Circuit, where the abortion ban was heard. In another case, Sixth Circuit Trump judge Amul Thapar cast the deciding vote to approve the use of a “form order, “ with no specific explanation, to deny requests for compassionate treatment of prisoners suffering from COVID-19. As the dissent pointed out, the result “contravenes” a court’s “duty to provide reasons” for its decisions and “erodes the public’s trust” in courts.

This is deeply disturbing. It is fundamental to the rule of law that courts explain the basis and reasons for their actions. Not only does this preserve public confidence, it’s essential to the ability of lawmakers to decide whether to overturn a court’s ruling via legislation.  

As federal courts make more and more unexplained shadow docket decisions, the danger to our rights and our democracy is becoming more clear. To halt this trend, the Senate must approve more Biden nominees to the federal courts who will oppose it.  Congress should consider other reforms as well, such as increasing the size of the Supreme Court or legislation to reform the shadow docket.  

Progressives and conservatives alike have expressed concern about the shadow docket’s threat to proper judicial decision-making. All our rights, and our very democracy, are at stake.

Elliot Mincberg is a Supreme Court analyst, People For the American Way senior fellow and former chief counsel for oversight and investigations of the House Judiciary Committee. Mincberg has researched and analyzed the Supreme Court, the Department of Justice, religious liberty and other civil rights/civil liberties issues for more than three decades.