Supreme Court’s Ruling in Favor of Texas Abortion Law Prompts Senate Judiciary Committee to Examine ‘Shadow Docket’

September 3, 2021 Updated: September 4, 2021

U.S. Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, announced Friday that the panel will hold a hearing to investigate if the Supreme Court is abusing its authority when it hands down a decision without full court procedures, a process dubbed “shadow-docket.”

“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,” said Durbin in a press statement after the ruling. “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.”

Out of about the 70 cases the high court considers, most of them have clear deadlines, public oral arguments, and published opinions, while some of them are emergency appeals that do not have clear and transparent procedures.

The Supreme Court rules allow for emergency requests by litigants that believe their cases have been wrongly decided by a lower court. The decisions in these cases are meant to be temporary while an appeal is made.

Durbin said the high court needs to earn public trust and the recent ruling in the Texas abortion ban case, using the emergency abridged procedure, would erode that trust.

In addition, Durbin said Democrats will examine the shadow docket being used for overturning the Biden administration’s eviction moratorium and reinstating the “Remain in Mexico” policy that was ended by Biden when he took office in January.

In her dissenting opinion, liberal Associate Justice Elena Kagan wrote that the emergency ruling “illustrates just how far the court’s ‘shadow docket decisions may depart from the usual principles of appellate process. … In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more un-reasoned, inconsistent, and impossible to defend.”

The Supreme Court, in a 5–4 ruling on Wednesday, denied a bid to stop Texas from banning abortions after a fetal heartbeat is detected, allowing the abortion ban to remain in effect while abortion rights groups continue to challenge the restriction.

Senate Bill 8, known as the Texas Heartbeat Act, was signed into law by Republican Gov. Greg Abbott in May. The law enables private citizens—except for an individual who impregnated a woman through rape or incest—to sue physicians who perform abortions after a fetal heartbeat is detected.

Besides the Judiciary Committee’s announcement, the court’s decision prompted furious statements from many Democrats.

House Speaker Nancy Pelosi (D-Calif.) said the law “necessitates codifying Roe v. Wade,” the Supreme Court decision decades ago that ruled access to abortion is a constitutional right. She also said the House would vote and debate on the pro-abortion bill authored by Rep. Judy Chu (D-Calif.) and others “to enshrine into law reproductive health care for all women across America.”

Abortion is the act of ending the life of an unborn baby.

President Joe Biden on Thursday also denounced the Texas law, describing it in a statement as “an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years.”

Republicans, meanwhile, widely cheered the new law and the court decision that let it remain in effect.

“The Supreme Court just let Texas’s pro-life law go into effect, saving countless innocent lives,” Sen. Tom Cotton (R-Ark.) said in a statement.

“BREAKING NEWS!!!!” wrote Abby Johnson, former Planned Parenthood director-turned-pro-life advocate, on Twitter. “The Supreme Court decision is out!! They will NOT interfere in the Texas Heartbeat Law!!! What an amazing victory! Babies win!!!!! Life wins!!!!!”

Zachary Stieber contributed to this report.

Masooma Haq
Masooma Haq