Texas Abortion Case Highlights Concerns Over Supreme Court ‘Shadow Case’

WASHINGTON – Most of the time, the Supreme Court appears to the public as a prudently deliberative body. Before rendering important decisions, judges review numerous written briefs, grill lawyers in their pleadings, and then take months to write opinions explaining their reasoning, which they publish at precisely calibrated times.

Then there is the “ghost file”.

Increasingly, the tribunal deals with important cases in a rush, taking into account emergency requests that often result in late decisions rendered with little or no written notice. These orders have reshaped the legal landscape in recent years on high-profile issues such as changes to immigration enforcement, disputes over electoral rules, and public health orders banning religious gatherings and deportations during the pandemic.

The most recent and perhaps the most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a new Texas law that bans most abortions in the state – a capital development in the decades-long legal battle over abortion rights.

The court spent less than three days dealing with the case. There were no oral arguments before the judges. The majority opinion was unsigned and included a paragraph. In a dissent, Judge Elena Kagan said the case illustrated “how much the court rulings in the context of a record can deviate” from the usual court process and said the use of the phantom case “becomes more unreasonable, inconsistent and impossible to defend every day.” . “

There is nothing new in the fact that the court has a record of orders where it quickly resolves certain matters. But with the notable exception of emergency last-minute stay requests, this category of court activity has traditionally received little attention. This is because for the most part, the orders file focuses on routine case management requests by lawyers, such as asking permission to submit an unusually long brief.

The court also uses it to rule on emergency appeals. Each court deals with claims from a different region and can reject them or take them to the full court. And increasingly, the court is using its orders record – which was considered the “shadow record” in 2015, in an influential legal journal article by William Baude, a law professor at the University of Chicago – to decide quickly whether to block government actions, turning into a powerful tool to influence public order without fully hearing the parties or explaining their actions in writing.

Criticism of the use of the shadow record has been mounting for years, but has reached a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he described as “patently unconstitutional law” to take force and calling it ” shameful “that the majority of the court did so without hearing arguments or issuing a signed opinion. He announced hearings.

“Because the court has now shown repressive state legislatures how to play with the system, the House Judiciary Committee will hold hearings to shed light on the Supreme Court’s dangerous and cowardly use of the shadow role,” he said. he said in a statement. “Decisions like this undermine our democracy. “

The Liberals are not alone in seeing problems with the growing importance of the courts exercising power through emergency orders. When the court issued a shadow order last year allowing a Trump administration’s immigration rule to go into effect – quashing a trial judge’s domestic injunction blocking the rule – Judge Neil Mr. Gorsuch, a conservative, supported this result but lamented the process that led to it.

“Rather than spending their time methodically developing arguments and evidence in cases limited to the parties involved, both parties were forced to rush from one preliminary injunction hearing to another, jumping from one claim to another. from emergency suspension to another, each with potentially national issues. , and all based on an expedited briefing and few opportunities for adversarial testing of the evidence, ”he wrote.

But while there is a broad consensus that the Supreme Court is increasingly using the shadow record for high-profile decisions – a trend that is playing out within a growing justice system and nation. additionally polarized – defining the precise nature of the problem is complicated and controversial.

“I don’t think anyone thinks it’s good to have a lot of last-minute emergency relief requests that the court has to focus on and decide,” said Samuel Bray, professor of law at the University. of Notre Dame who testified about the shadow. dossier this summer before President Biden’s commission, which is studying possible changes to the Supreme Court. “But there are difficult questions about what caused the high profile use of the Shadow File – and what to do about it.”

Over the past decade, such decisions have clearly become more common. Typically, they involve emergency appeals of lower court decisions on whether to block a change – such as a new law or a new government policy – so that it cannot be blocked. applied while the slow litigation process unfolds.

One way to measure the Supreme Court’s use of its shadow role to render important decisions is how often it has used that power to summarily disrupt the status quo, for example by granting or quashing an injunction when a court lower had ruled differently.

According to data compiled by Stephen I. Vladeck, a law professor at the University of Texas at Austin, who has written critically on the rise of the shadow docket, the cases in which the Supreme Court disrupted the status quo numbered one figure each year from 2005 to 2013, but have since increased, reaching 19 in his last term and 19 again so far this term.

“If they have to make decisions that profoundly change the law, I think they have an obligation to write down and explain why they are doing it,” said Vladeck, who also testified on the matter before the Supreme Court commission. “They have an obligation to lower courts, to other parties to the case, and to other public officials who need advice.”

But as the fury over the Texas abortion rights case shows, this measure is flawed. In that case, rather than summarily disrupting the status quo established by a lower court, the majority of the Supreme Court decided not to overturn what an appeals court had done.

Indeed, in another dissenting opinion – joined by Judge Kagan – Judge Sonia Sotomayor suggested that the problem in the Texas case was an insufficiently aggressive use of the shadow role to change the legal landscape. She said the court should have quickly banned what she called “a patently unconstitutional law”.

Mr Bray argued that what is happening is partly explained by a change in the lower courts: they seem increasingly willing to issue nationwide injunctions blocking government policies in politically contentious cases, often brought by plaintiffs who have deliberately brought action in particularly liberal or conservative areas, depending on who is president.

Texas judges have issued injunctions blocking President Barack Obama’s policies such as protecting parents of US citizens from deportation. Judges in states like California have done the same to block President Donald J. Trump’s policies, such as banning travel for citizens of several Muslim countries. Last month, a Texas judge called on the Biden administration to reinstate a Trump-era program that requires asylum seekers on the southwest border to stay in Mexico.

Such nationwide injunctions by a single judge prompt the government to file emergency appeals, which reach the Supreme Court through its shadow case. And as the court has grown accustomed to handling emergency appeals more frequently in high-profile cases, it has also become more receptive to similar requests from plaintiffs in other types of cases.

Indeed, Mr Vladeck argued that the issue of the shadow case today cannot simply be reduced to the issue of nationwide injunctions. He noted that the lawsuit challenging the Texas abortion law and many rulings in recent years challenging local and state actions responding to the coronavirus pandemic did not involve them.

In an interview, Mr Baude – the professor who coined the term ‘shadow docket’ and is a member of Mr Biden’s Supreme Court commission – said another reason the debate was so complicated was that there were different types of concerns about the increasing use by the court of its emergency orders to resolve cases quickly, and they overlapped only partially.

One concern, he said, is fundamental: the tribunal may come to a bad result because it is rushing. Another is procedural: whatever the outcome, it is not fair to the parties who do not have the chance to be fully heard before the decision. A third concerns transparency: the court must fully explain itself and disclose how each judge voted.

But the outcry over the majority’s handling of Texas’ anti-abortion law, he said, appears to center primarily on another concern: that the court’s conservative majority is not impartial or consistent about when she chooses to intervene with an emergency order.

“I think the real concern is that the court has aggressively reached out in some immigration and Covid cases, and here it hasn’t,” he said. “And why is it when it comes to a Covid restriction in religious service, the court rushes, in the middle of the night, to shut down the government, but when it is an anti-abortion law, the court let go ?”