Justice Samuel Alito on Thursday rebuffed Democratic charges that the Supreme Court is abusing its emergency appeals docket to deliver conservative victories in high-profile cases, such as Texas’s ban on abortion.
Such emergency disputes are sometimes referred to as the Court’s "shadow docket" because they are decided on an accelerated basis without arguments, and often without detailed reasoning from the justices. Alito acknowledged the Court is resolving more emergency appeals than it once did, but he accused partisan critics of undertaking "unprecedented efforts to intimidate the Court or damage it as an independent institution."
"The catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," Alito said in a speech at the University of Notre Dame.
Democratic lawmakers have homed in on the shadow docket in their recent criticisms of the Court and its right-leaning majority. Such procedural complaints are safe political ground for Democrats, in that they can undermine the justices without resorting to unpopular threats to pack the Court. Speaking Wednesday at a Senate hearing on the subject, Sen. Dick Durbin (D., Ill.) accused the Court of abusing the shadow docket to deliver "more political and controversial decisions, with results that appear, on the face, ideologically driven."
In addition to the Texas law, the Supreme Court since Aug. 24 has resolved emergency appeals involving the federal eviction moratorium and ordered the Biden administration to maintain the Trump-era "Remain in Mexico" policy for asylum-seekers.
Alito cited three factors to explain the recent rise in emergency appeals. First, there was an uptick in judicial orders blocking presidential initiatives during the Trump administration. Second, the coronavirus created novel voting-rights issues for the 2020 election. Third, the pandemic in general sparked a torrent of emergency appeals, particularly those concerning restrictions on worship and conditions in prisons.
All told, the growing body of emergency matters is a function of externalities the Court is forced to confront, Alito argued. The justice added that emergency matters usually feature hard deadlines, as in death penalty appeals. Lawyers for the accused usually lodge a final appeal at the Supreme Court hours before an execution, which the justices are not at liberty to reschedule.
"The Supreme Court and the lower federal courts have a lot of power," Alito said. "But here’s a power that they do not have—they do not have the power to make the world stand still."
Emergency relief from the Court usually takes the form of an order pausing a lower court decision, or an injunction blocking a state or the federal government from enforcing a policy. Some shadow docket critics are particularly concerned about the latter. Such historically rare orders are becoming more common, as when a 5-4 Court in April blocked a California policy barring in-home religious gatherings because of COVID-19.
"To be clear, it's not the volume by itself that’s a problem," law professor Stephen Vladeck said at Wednesday’s Senate hearing. "It is that more and more of these rulings are directly and permanently shaping state and federal policies."
Others fear the justices are being inconsistent. For example, during the Trump administration the justices repeatedly lifted nationwide injunctions blocking the government’s immigration policies. But it declined to get involved when a lower court blocked the Biden administration from rescinding one such policy, the "Remain in Mexico" rule for asylum-seekers.
Nor are criticisms of the emergency docket entirely external or partisan. Justice Elena Kagan faulted the Court for its cursory explanation when it allowed the Texas Heartbeat Act to take effect.
"[The majority] barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail," Kagan wrote. "The majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend."
Alito acknowledged that the Court’s emergency procedures are not perfect, and he welcomed several particular attempts to refine them. But whatever improvements might be made, Alito said the real issue animating critics is the outcome of certain cases, not the underlying procedure.
"Attempting to disguise their real complaint with a lot of talk about a secretive, sinister shadow docket is unworthy," Alito said.