SCOTUS’ Shadow Docket Coming Out of the Shadows
In August 2021, SCOTUS issued two of its most important decisions of the year: Alabama Association of Realtors v. Department of Health and Human Services and Whole Woman’s Health v. Jackson.[1] Unlike most cases argued before the Supreme Court, there were no writs of certiorari, amicus briefs, or oral arguments.[2] They were instead emergency petitions decided on the Court’s shadow docket with a limited briefing.[3] The decisions were handed down in the middle of the night, with one of those decisions only being a paragraph.[4] Not only did this pair of cases adversely impact millions of people the moment the decisions were quietly handed down, but they represent a diversion from the usual appellate procedures that will leave lower courts unsure of how to interpret Alabama Association of Realtors and Whole Woman’s Health. The decisions made on the shadow docket immediately impact people’s livelihoods, but the opinions contain little substantive reasoning.
The shadow docket is usually reserved for simple orders, like granting or denying certiorari and petitions for emergency relief,[5] and for orders that are outside of the Supreme Court’s normal docket.[6] However, with the new conservative super-majority, the Court has been deciding controversial issues on the shadow docket without full arguments and briefing.[7] In the past year and a half, cases involving voting rights, the death penalty, abortion, and the CDC eviction moratorium were resolved on the shadow docket.[8]
On August 20, 2021, the conservative majority on the Supreme Court, in Alabama Association of Realtors, decided to end one of the largest and most important protections of American citizens during the COVID-19 pandemic: the Center for Disease Control (CDC) eviction moratorium.[9] The moratorium blocked evictions for tenants who live in a county with a high transmission rate of COVID-19 and who declare their financial need to the CDC.[10] The majority held that the CDC exceeded its authority and “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”[11] The three dissenting Justices criticized the majority’s use of the shadow docket for an issue of utmost importance for those who were protected by the moratorium, explaining that “these questions call for considered decision-making, informed by full briefing and argument.”[12] Certainly, deciding on a protection promulgated during the biggest and most severe health crisis of any of the Justice’s lifetimes should be fully briefed with expert opinions on COVID-19 and not in the midnight hours with emergency briefings. Millions of people now face eviction while a new COVID-19 variant rages through the country.[13]
Only eleven days later, the Court again utilized the shadow docket in Whole Woman’s Health when the majority refused to block a Texas law known as SB8, which allows individual citizens to sue anyone who aids in providing an abortion after six weeks of pregnancy.[14] That six week time constraint is intentional and important because the sixth week of pregnancy occurs only two weeks after a missed period before most people know they are pregnant.[15] If the citizen is successful in their suit, they can collect $10,000 in damages from the defendant in the suit.[16] This law not only violates years of precedent on its face by placing an undue burden on access to abortion, but it also turns people into vigilantes over reproductive rights.[17] Yet the majority claims they did not decide this case on jurisdictional or substantive grounds, but procedural ones.[18] As Justice Sotomayor put it, the majority of the justices are “putting their heads in the sand” about the immediate repercussions that this decision will have on reproductive rights in Texas.[19]
In light of these shadow docket decisions—Alabama Association of Realtors and Whole Woman’s Health—the Senate Judiciary Committee has decided to hold a hearing “on the conservative Court’s abuse of the shadow docket.” The lack of transparency around the Whole Woman’s Health decision was particularly alarming to the committee which characterized the decision as a “devasting blow to American constitutional rights.”[21] The Court’s decision has left abortion providers in Texas with no option but to stop providing abortion procedures as of 11:59 PM on August 31, 2021.[22] In addition, the consequences for the millions of families facing eviction are obvious and painful in the wake of the health crisis this country is facing. The Supreme Court of the United States has been left with much discretion to fulfill their duties as the court of last resort, but if the conservative court’s view of their duties includes midnight decisions that immediately harm American citizens, it is time for the checks and balances system to do its job.
[1] Whole Woman’s Health v. Jackson, No. 21A24, 2021 U.S. LEXIS 3680 (2021); Ala. Ass’n of Realtors v. HHS, No. 21A23, 2021 U.S. LEXIS 3679 (2021).
[2] Id.
[3] Id.
[4] See Whole Woman’s Health, 2021 U.S. LEXIS 3680, at *1-2.
[5] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1, 8 (2015) (overviewing the cases from the shadow docket in the 2013 Supreme Court Term).
[6] Id.
[7] See Raysor v. DeSantis, 140 S.Ct. 2600 (2020) (denying a motion to vacate a stay on a Florida law that requires felons to pay to regain the right to vote), and Barr v. Purkey, 140 S.Ct. 2594 (2020) (vacating a preliminary injunction which allowed a man to be executed).
[8] Raysor, 140 S.Ct. at 2600; Barr, 140 S.Ct. at 2594; Whole Woman’s Health, 2021 U.S. LEXIS 3680 at *2; Ala. Assn. of Realtors, 2021 U.S. LEXIS 3679 at *10.
[9] Ala. Assn. of Realtors, 2021 U.S. LEXIS 3679 at *11.
[10] Id. at *1; Temporary Halt in Residential Evictions in Communities with Substantial or High Transmission of COVID-19 To Prevent the Further Spread of COVID-19, 86 Fed. Reg. 43,244 (Aug. 6, 2021).
[11] Ala. Ass’n of Realtors, 2021 U.S. LEXIS 3679 at *10.
[12] Id. at *20 (J. Breyer, dissenting).
[13] Robert Barnes, Rachel Siegel & Johnathon O’Connell, Supreme Court strikes down CDC eviction moratorium despite delta’s rise, Wash. Post (Aug. 26, 2021) https://www.washingtonpost.com/politics/courts_law/supreme-court-eviction-ban-struck-down/2021/08/26/46bce3e2-0511-11ec-a654-900a78538242_story.html
[14] Whole Woman’s Health, 2021 U.S. LEXIS 3680 at *2.
[15] Id. at *9.
[16] Id. at *10.
[17] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (holding that states cannot create undue burdens on access to abortion); Whole Woman’s Health, 2021 U.S. LEXIS 3680 at *10.
[18] Whole Woman’s Health, 2021 U.S. LEXIS 3680 at *2.
[19] Id. at *15 (J. Kagan, dissenting).
[20] Press Release, Senate Committee on the Judiciary, Senate Judiciary Committee to Examine the Texas Abortion Ban and the Supreme Court’s Abuse of its “Shadow Docket” (Sept. 3, 2021) www.judiciary.senate.gov/press/dem/releases/senate-judiciary-committee-to-examine-the-texas-abortion-ban-and-the-supreme-courts-abuse-of-its-shadow-docket.
[21] Id.
[22] Neelam Bohra, Texas law banning abortion as early as six weeks goes into effect as the U.S. Supreme Court takes no action, Texas Tri. (Aug. 31, 2021), www.texastribune.org/2021/08/31/texas-abortion-law-supreme-court/ (discussing the immediate impact of the abortion ban in Texas including one clinic where over 100 abortions were performed on August 31, 2021).