Justice Samuel Alito rebutted Thursday what he called “unfair and damaging attacks” on the Supreme Court over its emergency adjudication of politically-charged cases, such as the Texas heartbeat law, which recently went into effect after the bench declined to block it.
Responding to criticisms that the conservative-dominated court has been strategically rushing into hasty decisions to advance a secret political agenda, Alito objected to the media’s use of the term “shadow docket” as a misnomer, and claimed such an accusation erodes the legitimacy of the federal judiciary.
“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 remarked during an address at the University of Notre Dame. “This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
In the wake of the court’s emergency rulings in the cases of the Texas heartbeat law, CDC eviction moratorium, and the Trump-era “Remain in Mexico” policy, all of which favored conservatives, the Senate Judiciary Committee called a hearing Thursday to examine the “shadow docket” complaints.
“The media and political talk about the shadow docket is not serious criticism,” Alito commented, noting that emergency application is a standard procedure that is only invoked when the plaintiffs ask for it, which abortion providers did in the recent Texas heartbeat law situation. The legislation prohibits abortions after a fetal heartbeat is detected, long believed to be around six weeks of gestation.
“Journalists may think we can dash off an opinion the way they dash off articles,” he chided.
Since the Supreme Court rejected the opportunity to assess the Texas heartbeat measure, given the small time window afforded by the complainants, the pro-abortion lobby has reacted with apocalyptic protestations that Roe v. Wade, which legalized abortion at the national level, has been all but reversed.
Alito called these “false and inflammatory claims,” adding, “We did no such thing and we said that expressly.”
He clarified that the Supreme Court issued emergency application for the Texas case because abortion proponents objecting to the law sought relief just over a day before it was scheduled to be implemented. “They asked us to rule within hours on the papers,” he said.
However, the Supreme Court will hear a potential challenge to the 1973 landmark case in December with Dobbs v. Jackson Women’s Health Organization, a case on the docket concerning a Mississippi law that bans abortions after fifteen weeks. The law was escalated to the High Court after a panel of the 5th U.S. Circuit Court of Appeals barred its enforcement, arguing it violated the precedent of Roe v. Wade and subsequent rulings.
In addressing emergency appeals, the Supreme Court is not conniving with ulterior motives but is rather simply following protocol, Alito confirmed.
“This picture is very sinister and threatening, but it is also very misleading,” he said. “There’s nothing — absolutely nothing new about emergency applications… There is nothing new or shadowy about the procedure we followed in those cases.”
Alito said that while the court has received many more emergency requests that require fast decision turnaround this cycle, the justices are not to blame.
“It’s like complaining about the emergency room for treating too many accident victims who come in,” he said. “What are we supposed to do? Are we supposed to decline to adjudicate them? Are we supposed to impose a quota? … It’s a silly criticism.”