Prepared Statement by U.S. Senator Chuck Grassley (R-Iowa)
Ranking Member, Senate Judiciary Committee
Hearing titled “Texas’s Unconstitutional Abortion Ban and the Role
of the Shadow Docket”
Wednesday, September 29, 2021
Today, we are having a hearing because the Supreme Court did
something very ordinary. Let that sink in: we are having a hearing because the
Supreme Court did not do something extraordinary. It declined to intervene on
an exceedingly expedited basis while reserving judgment on complex legal
Much of the talk about the case has referred to the Court’s
so-called “shadow docket.” For a long time, the Court and practitioners have
called this the “emergency docket” because it’s designed so the Court can
provide relief in emergencies. A good amount of these orders have historically
dealt with last minute death penalty appeals, but we didn’t hear complaints
from the other side about the docket for those cases.
So rather than rely on a catchy name invented by a law professor,
let’s look at what the Supreme Court actually said in its decision on September
1. In that case, the plaintiffs waited several months to sue after the law was
passed, so the courts did not have much time to work through the legal issues
in the case. Having not succeeded in the lower courts, the plaintiffs asked the
Supreme Court to grant them emergency relief.
A majority of the justices on the Supreme Court said that the
abortion providers had raised “serious” constitutional arguments. They didn’t
pre-judge the issue, but they acknowledged that the plaintiffs had a serious
case. But the Court also said that the case raised novel procedural issues. It noted
that under current precedent, it was not clear that the plaintiffs could sue
the defendants. The Texas Heartbeat Act specifically prohibits several of the
defendants from enforcing the law. Instead, private parties can do so in court.
The majority noted that this system raised novel legal issues—and everyone
seems to agree on that point. The Supreme Court said that it wanted the lower courts
to address these novel issues first.
There are also at least fourteen suits in state court and the
federal government’s suit against Texas. The courts are addressing the legal
issues on an expedited time table. Those cases will work through the lower
I’m looking forward to hearing more from our witnesses today about
how the Supreme Court’s decision fits with its normal practices. Before we do
that, I also want to talk about why we’re having this hearing now.
The Texas Heartbeat Act was signed into law in May. There are
hearings in state and federal court this week and next about whether courts
should grant relief. The abortion providers just asked the Supreme Court to
take the case on the merits without waiting for the court of appeals. So why
are we having this hearing in the last week of September?
It’s because the Supreme Court starts hearing cases next week. And
this term, the Supreme Court has agreed to hear a case about a Mississippi law
on abortion. The law protects the lives of unborn children by prohibiting
abortions after 15 weeks, with exceptions for medical emergencies. Mississippi said it enacted the law to protect
the health of mothers, the dignity of unborn children, and the integrity of the
Of the 59 countries that permit elective abortion, more than 75%
do not allow elective abortions past 12 weeks gestation. But abortion activists
are worried that the Supreme Court might agree that states can regulate
abortion at 15 weeks.
Liberal dark money groups are also worried about that result. And
they believe that a public campaign can influence the Supreme Court’s decision.
These groups have been publicly celebrating polls that show that the public’s
trust in the Supreme Court has dropped.
So why do polls show that public confidence may be decreasing? It’s
because dark money groups like Demand Justice are running multi-million dollar
partisan smear campaigns against the Court. It’s also because Senators on the
other side have threatened the Supreme Court. They’ve called out justices by
name and said those justices will “pay the price” if they ruled the wrong way. If
the Justices reached the wrong result, they were told, “You won’t know what hit
you if you go forward with these awful decisions.”
Other dark money groups, partisans, and activists undermine the Court
by claiming that Justice Barrett’s confirmation was an “illegitimate process,”
including one of the Democrat witnesses today. Democrats and partisan dark
money groups love to predict the future. They certainly don’t lack confidence
in their predictions. But those predictions are not very good.
Democrats claimed that voting for Justice Barrett was voting “to
strike down the Affordable Care Act and eliminate protections for millions of
Americans with pre-existing conditions.” Justice Barrett was a “judicial
torpedo” aimed at those protections. That scared a lot of Americans. But it
Justice Barrett joined the Court’s 7-2 majority that upheld the
Some Democrats have said the Court needs to “heal itself” before
the public “demands” that the Court be “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 back against the partisan
efforts by dark money groups to attack our judiciary.
There’s one final point I want to raise today before we hear from
the witnesses. The House of Representatives just passed a bill that could allow
abortion on demand. It would preempt numerous pro-life state laws, and it would
throw out the protections of the Religious Freedom Restoration Act. If
Democrats truly believe that the Court will overrule Roe, they should have a
hearing on that bill in this Committee. The American people would see how
radical that bill is.
Contrary to the outlandish claims by abortion activists, the
Supreme Court did not overrule Roe. I think our witnesses today will help
explain this, and offer some much needed information about the role of the
emergency docket at the Supreme Court.