September 03, 2021

Senate Judiciary Committee to Examine the Texas Abortion Ban and the Supreme Court's Abuse of its "Shadow Docket"

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today announced that the Senate Judiciary Committee will hold a hearing examining the Supreme Court’s abuse of its “shadow-docket,” particularly its order permitting Texas’s extreme new abortion restrictions to take effect this week.  Late Wednesday night, the Court issued an order refusing to block the Texas law banning abortion after the detection of a fetal heartbeat—about  six weeks from conception, often before a pregnancy is identified—and implementing a vigilante-style system of policing Texans’ right to choose.  This followed shadow-docket decisions last week overturning the Biden Administration’s COVID-19 eviction moratorium and rejecting the Administration’s decision to repeal the Trump Administration’s “Remain in Mexico” program.

“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” said Durbin.  “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.  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.”

The Supreme Court’s midnight order, which led to the new restrictions taking effect, calls into question the consequences of the conservative majority’s increased use of the “shadow docket” in judicial review, which can hinder public confidence and leave lower courts in the dark about how to apply the Court’s precedent moving forward.

In her dissenting opinion, Associate Justice Elena Kagan wrote that this 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.”

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