• Show Notes

By Melissa Murray

Dear Listener,

The First Monday in October is always a heady time for Court-watchers as a new Supreme Court term begins afresh.  But the start of October Term 2021 is perhaps even more momentous than in years past.  On September 1, the Supreme Court, citing “procedural irregularities,” refused to issue an injunction that would block a Texas law that prohibits abortion after 6 weeks. Although the Court did not address the law’s underlying constitutionality, the decision allowed the law to go into effect in Texas, chilling abortion access in the state.   

In the wake of the SB 8 decision, national opinion polls reported a significant dip in the Court’s public approval ratings. I’m not suggesting that the Justices pore over polling data and Q scores, but the fact that polls registered the Court’s lowest approval ratings ever was likely a matter of concern at 1 First Street.  

After all, the Court is not like Congress and the President–it lacks either the power of the purse or the power of the sword.  The only means the Court has for ensuring that its decisions are respected and obeyed is its own legitimacy.  If that legitimacy appears compromised–if the Court appears to be in the thrall of particular ideological interests–then the Court’s place in a tripartite system of government is also compromised.  

Which is likely why the Justices have been out in full force, disclaiming charges of politicization and emphasizing that they are not, in the words of Justice Amy Coney Barrett, “partisan hacks.”  Of course, it’s hard to insist that the Court is above politics when you’re giving a speech at the University of Louisville’s McConnell Center, named for Senator Mitch McConnell, the person whose 2016 power grab denied President Obama the opportunity to replace Justice Scalia with Judge Merrick Garland.  It’s even harder when you are giving said speech with Senator McConnell on stage alongside you, nodding approvingly.  

Which is probably why the Court’s power hitter stepped up to the plate to bat cleanup. On Thursday, September 30, Justice Samuel Alito took to the stage at Notre Dame University to set the record straight about the Court.  In a nearly hour-long speech, titled “The Emergency Docket,” Justice Alito sought to dispel what he viewed as misperceptions and inaccuracies in media and academic coverage of the so-called “shadow docket.”  

As I have discussed in an earlier Note, the term shadow docket refers to the Court’s calendar for resolving emergency appeals and procedural case-management issues.  Unlike the merits docket, the calendar of regular cases for which the Court grants certiorari and requires full briefing, oral argument, and issues lengthy substantive opinions, issues on the shadow docket are typically resolved through spare, often unsigned, opinions without much explanation and reasoning.  

In his Notre Dame speech, Justice Alito went to great lengths to rebut the view that conservatives had weaponized the shadow docket to prosecute their political agenda.  In particular, he took issue with the use of the term “shadow docket,”  which in his view was a “catchy and sinister term” that “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.”  More troublingly, according to Justice Alito, references to “the shadow docket” “feed[] unprecedented efforts to intimidate the court or damage it as an independent institution.”  

If all of the talk of the shadow docket was a leftist plot to cow the Court into submission, Justice Alito made clear that he was having none of it.  Instead, in defense of the Court and its legitimacy, he gave a 10-point rebuttal of criticisms of what he pointedly called the “emergency docket.”

While Justice Alito conceded that shadow docket judgments are rendered “under time constraints,” he nonetheless maintained that the Justices, like EMTs rushing to deliver triage care in the field, “d[id] their best” under trying conditions.  And while shadow docket cases are often resolved without the benefit of oral arguments and full briefing, the Court’s processes for resolving these emergency appeals, Justice Alito insisted, are fully transparent.

So why don’t I feel reassured?  Perhaps it’s because Justice Alito doth protest too much, methinks. One of the principal critiques of the shadow docket is that the Court has weaponized this anodyne case management tool to advance a conservative agenda.  Such claims, according to Justice Alito, are “rank nonsense.”  But are they?  

Over the four years of the Trump presidency, the Solicitor General’s Office repeatedly used the shadow docket to appeal district court decisions that went against the Administration and its policies, leapfrogging federal appellate court review and going directly from the district court to the Supreme Court.  Far more often than not, in doing so, the Trump Administration was successful. The Court frequently upheld the challenged policies on the shadow docket–a move that not only blessed the policies, but also expedited their implementation by eliminating one level of federal court review.  By contrast, the Biden Administration has already had two high-profile shadow docket defeats–in cases involving the so-called “Remain in Mexico” policy and the COVID eviction moratorium, both of which were resolved on the shadow docket in August.

And while Justice Alito insisted that shadow docket rulings do not create precedents, in April 2021, the Supreme Court chastised a federal appellate court for failing to follow its earlier shadow docket rulings concerning restrictions on religious gatherings during the pandemic. It later imported a shadow docket ruling’s expansive view of free exercise principles into the reasoning of an opinion resolving an important merits docket case involving the collision of LGBTQ civil rights and religious liberty. So much for not using the shadow docket to establish precedent.

But it’s not just that Justice Alito seems to be blithely ignoring the real truths that underlie these critiques; it is that he seems to want to silence his critics–and indeed anyone who dares to question the motives and doings of the high court.  In his speech, Justice Alito explicitly name-checked two law professors who have lodged pointed– and pointedly persistent–criticisms of the Court’s use of the shadow docket.  He dismissed Harvard Law Professor Mark Tushnet as an “advocate[] for socialism.”  University of Texas Law Professor Steve Vladeck’s critique, which was published in the Harvard Law Review in 2019, was cast aside as mere partisan raving.  

In his zeal to paint these law professors as part of some leftist plot to force the Court into submission, Justice Alito may have glossed over some other important details–chief among them the origins of the term “shadow docket.”  Anyone listening to Justice Alito’s speech would be forgiven for believing that the term “shadow docket” sprang fully formed from Noam Chomsky’s head. After all, Justice Alito repeatedly decried the term and associated critiques as the work of manipulative liberals. In reality, the term was coined by Will Baude, a law professor at the University of Chicago and a former law clerk to Chief Justice John Roberts, in a 2015 article in the NYU Journal of Law and Liberty.  In that article, Baude noted that:

“[o]utside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious. The Court has not explained their legal basis and it is not even clear to what extent individual Justices agree with those decisions.” 

Baude’s point is clear.  Anxieties about the shadow docket, and the Court’s use of the shadow docket, cannot be reduced to political disputes between the left and the right. They are about the basic transparency and predictability that citizens should be able to expect from a coordinate branch of government.  

Speaking of transparency, it is worth highlighting Justice Alito’s swipes at the media.  “Journalists,” he scoffed, “may think that we can just dash off an opinion the way they dash off articles.”  But the Supreme Court’s work, he noted, requires deep consideration and deliberation.  “[W]hen we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences, so we have to be careful about every single thing that we say.”  

Fair enough.  But in the next breath, Justice Alito denounced journalist Adam Serwer’s sharp critique of the Court and the shadow docket as “false,” “inflammatory,” and “ridiculous.”  This may not seem like a bridge too far, but I want to suggest that perhaps it is.  On the one hand, it is, at bottom, somewhat unseemly for a member of the Court to publicly disparage those who have made legitimate–and defensible–critiques of the Court and its work.  The Court is, after all, a public institution operating as part of a democratic government. Critique–even dissent–is to be expected as the terms of engagement. A sitting Justice punching down at a reporter for simply writing about the Court in terms with which the Justice disagrees seems well out of bounds.

But even more troublingly, it is alarming for a sitting Justice to use the authority of his office to denounce and deride a member of the press–particularly at an event where, ostensibly at the Justice’s request, press access was quite limited.  More importantly, the Court is charged with divining the scope and substance of the First Amendment and its protections for a free press. Given his clear disdain for those members of the press who dare to criticize the Court and its members, it is hard to imagine Justice Alito endorsing a robust defense of a free press.

This is all to say that a new term is dawning at the high court–one replete with cases concerning some of the most fraught issues in our society.  The question before us isn’t whether the Court swings left or right–that has already been asked and answered.  The real question is whether the Court and its members are willing to be a democratic institution–one that prioritizes transparency and tolerates dissent.  Because we the people deserve nothing less.

Stay Informed,

Melissa