Ranking member of the Senate Judiciary Committee Sen. Chuck Grassley (R-Iowa) said calling a normal Supreme Court procedure like the emergency docket (when the court hears last-minute cases in a shortened time frame) a “shadow docket” is the latest attempt by Democrats to change public opinion about the Court, so they can add more justices.
“Some Democrats have said the court needs to, quote-unquote, heal itself, before the public demands that the court is restructured in order to reduce the influence of politics. That’s a fancy way of saying that if the rulings don’t change, they’ll try to pack the court. This campaign against the court and against individual justices has hurt the public. The dishonest rhetoric doesn’t help the American people understand the issues. I’ll continue fighting against the partisan efforts by dark money groups to attack our judiciary,” said Grassley.
Chairman of the Senate Judiciary Committee Dick Durbin (D-Ill.), however, argued that the emergency docket is intended to be used only when “the party seeking relief is likely to prevail and irreparable harm is likely to result if the temporary relief is not granted.”
“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, constitutional rights for millions of Americans should not be stripped away in the dark of night, even at the Supreme Court. That is exactly what happened when … the Supreme Court did its bidding at midnight on Sept. 1, and the Supreme Court allowed it,” said Durbin.
Durbin was referring to the ruling by the Supreme Court on the law passed by the Texas legislature that prohibits most abortions after week-six of the pregnancy.
In response to the Texas abortion law, abortion providers and advocates alleged the law was unconstitutional in light of the Supreme Court’s 1973 decision in Roe v. Wade. Whole Woman’s Health, Planned Parenthood of Greater Texas, and other providers asked the Supreme Court to stop the Texas law from going into effect, in an emergency appeal after the District Court canceled its state appeal.
In a 5 to 4 ruling (pdf), the Supreme Court said it would let the Texas law stand—ahead of lower-court battles over whether it is constitutional.
The Texas law bars doctors from performing abortions unless they have tried to detect a fetal heartbeat and been unable to do so. Only if a heartbeat cannot be detected can the doctor perform an abortion, unless a medical emergency exists.
Durbin convened Tuesday’s hearing to consider if the Supreme Court emergency docket ruling in favor of the Texas abortion law, shows the highest court in the nation needs to change its procedures or be restructured.
“It’s already too late for many Texans whose rights have been suspended, and who have been forced to leave the state to seek reproductive health care, (that) the Constitution has already guaranteed them, but it is not too late for the rest of the country and the Court to change course,” added Durbin.
Republicans say that the emergency docket is not extraordinary or secret, but has its place in the judicial process.
“What they’re calling a shadow docket is the ordinary operation of every court that’s been in existence since the ratification of our Constitution, whether a District Court, a Court of Appeals, or the United States Supreme Court,” said Sen. Ted Cruz (R-Texas).
“Without the Supreme Court’s emergency docket, how can litigants whose fundamental rights are at stake seek immediate relief?” asked Grassley to Edmund Gerard LaCour, the Solicitor General of Alabama.
“They can seek it from lower courts, but there’s no principled reason why the lower court necessarily should have the last word as opposed to the highest court,” replied LaCour.
Democrats argue that the use of the emergency docket has gone up since former President Donald Trump was elected, but witness testimony (pdf) from Stephen Vladeck, University of Texas School of Law professor, to the committee shows that the use of the emergency procedure by the court started going up in 2014, and has continued to go up after President Joe Biden was elected.
“For a court that expressly defines its legitimacy by its ability to offer principled justifications for its decisions, its inability— indeed its refusal to do so on the shadow docket—has equally troubling implications for the rule of law,” said Vladeck.
Sen. Josh Hawley (R-Mo.) echoed the assessment that Democrats want to restructure the Supreme Court because of the conservative majority in the court.
“This hearing’s about threatening an institution of our government to rule the way the extreme left of the Democrat Party wants it to rule,” said Hawley.
Hawley went on to say that Democrats have moved to the extreme left by passing the Women’s Health Protection Act, which would allow abortions up to nine months if the doctor thought the woman’s health was at risk. One Democrat joined Republicans to oppose the abortion bill.
But Democrats argue a national abortion law that is broader than Roe v Wade is needed because of the restrictive anti-abortion laws states like Texas are enacting.
“The protections in this measure are more necessary now than ever before in our history because an avalanche of restrictive, reprehensible state laws is drastically reducing fundamental health care rights,” Sen. Richard Blumenthal (D-Conn.) said in a September press statement praising the Women’s Health Protection Act.
Meanwhile, Speaker Nancy Pelosi (D-Calif.) said Democrats will make a decision about whether or not to expand the court after the panel appointed by Biden issues its report on the legal ramifications of doing so.