Alito Pushes Back on ‘Sinister’ Portrayal of Supreme Court ‘Shadow Docket’

Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. (Erin Schaff/Pool via Reuters)

A top conservative justice on the Supreme Court on Thursday challenged critics who have claimed the court is abusing the so-called shadow docket process.

The process unfolds when the court is petitioned to make a quick decision by litigants who believe their cases have been wrongly decided by a lower court. The decisions are issued without oral arguments or other briefings. They’re meant to be temporary while an appeal is made.

The court recently made three such decisions. Justices ruled against halting the pro-life Texas law, reinstated the previous administration’s “Remain in Mexico” program, and rejected a Biden administration rule that was blocking evictions in most of the country.

“Our decisions in these three emergency matters have been criticized by those who think we should have decided them the other way, and I have no trouble with fair criticism of the substance of those decisions,” Supreme Court Justice Samuel Alito, a George W. Bush nominee, said during remarks delivered at the University of Notre Dame.

“My complaint concerns all the media and political talk about our sinister shadow docket. The truth of the matter is that there was nothing new or shadowy about the procedures we followed in those cases—it’s hard to see how we could handle most emergency matters any differently,” he added.

Critics are painting a “sinister” portrayal of the court and its decisions on emergency motions but that portrayal is misleading, according to Alito.

Critics include some of his colleagues.

“Today’s ruling illustrates just how far the Court’s ’shadow-docket' decisions may depart from the usual principles of appellate process,” Justice Elena Kagan, in a dissent to the Texas decision joined by Justices Stephen Breyer and Sonia Sotomayor, wrote last month.

The shadow-docket decisionmaking “every day becomes more unreasoned, inconsistent, and impossible to defend,” the Obama nominee added after accusing the majority of only cursorily reviewing the submissions by the parties in the case.

Sen. Dick Durbin (D-Ill.), chairman of the Senate Judiciary Committee, claimed in a hearing on Wednesday on the Texas law that the majority of justices on the Supreme Court are abusing the emergency docket.

“In recent years, the Supreme Court has started to use the shadow docket for more political and controversial decisions, with results that appear on their face to be ideologically driven,” he said.

Others have backed the court, arguing there is nothing untoward with what has been done.

Sen. Chuck Grassley (R-Iowa), the top Republican on the panel, noted that many of the emergency docket decisions have dealt with last-minute appeals in death penalty cases.

“We didn’t hear complaints from the liberals in the Senate about the docket for those cases,” he said.

“While the proceedings are fast-paced, the reality is that litigation sometimes presents emergencies that require emergency action from whatever court is called upon to judge the matter,” Edmund LaCour, Alabama’s solicitor general, told the committee, calling the term “shadow docket” “evocative” but “ultimately inept.”

Alito acknowledged there have been more emergency motions in recent years but said that jump stemmed in part from the COVID-19 pandemic, which saw society changed dramatically by a wide range of new rules and procedures.

He also said he wasn’t suggesting “that our current practice is perfect and that possible changes should not be considered.” But he said that the recent portrayal of the court ”feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Alito spoke on the same day justices received a fresh emergency appeal from teachers in New York City who object to a looming COVID-19 vaccine mandate.

Masooma Haq and the Associated Press contributed to this report.