Jurisprudence

Republicans Have No Idea How to Defend the Supreme Court’s Shadow Docket

Instead, at a Senate hearing on Wednesday, they just lied about it.

Cornyn stands near Cruz and Lee seated on a panel in the hearing room
Republican Sens. Ted Cruz, John Cornyn, and Mike Lee at Wednesday’s hearing on the shadow docket. Pool/Getty Images

Adam Serwer has a smart piece in the Atlantic this week, taking the Supreme Court justices to task for refusing to come clean about their ideological and political agendas. They want to press a radical, minoritarian conservative agenda while also, he writes, demanding “that the public acquiesce to their self-delusion that they are wise sages who hold themselves above the vulgarities of partisan politics, even as they deliver sweeping victories to a conservative movement and Republican Party that have worked for half a century to achieve those victories.” As Serwer notes, Republicans are entitled to use whatever legal means necessary to pack the court with foes of reproductive freedom. What they are not entitled to do is to both lie about that project and then rage incoherently at those who note that it happened. It’s why Mitch McConnell can’t both brag about stealing Justice Antonin Scalia’s seat and also deny that he did it.

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For more than two hours on Wednesday, however, that is exactly what Senate Republicans did during a Judiciary Committee hearing about the use and abuse of the Supreme Court’s shadow docket. Wednesday’s hearing focused on the conservative justices’ use of unsigned, late-night orders to overhaul the laws of the land, often with little or no justification, accompanied by minimal briefing and no oral argument. The rise of the shadow docket to strike down COVID restrictions, reinstate Donald Trump’s Remain in Mexico policy, and end the Biden administration’s eviction moratorium is proof positive that Republicans have won: They seized a sufficient number of Supreme Court seats to drive the law to the right at a faster pace than ever before.

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And yet GOP senators are not content to revel in their capture of the court; instead, they insist on gaslighting the country about the majestic neutrality of a court they spent billions of dollars and decades of political capital to shape. Like the self-righteous justices whom Serwer skewers, Republican lawmakers refuse to take their W. Instead, they want to pretend it never happened. And like the conservative justices, they are thus attempting to shore up SCOTUS’s legitimacy by denying the power grabs we can all see with our own eyes.

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Wednesday’s hearing was inspired by the Supreme Court’s decision, around midnight on Sept. 1, to let a Texas law called S.B. 8 take effect. S.B. 8 bans abortion after six weeks, but prohibits state officials from enforcing its terms. Instead, the measure allows private citizens to file $10,000 lawsuits against anyone who performs or “abets” an abortion. After spending a year breaking its own rules to freeze state COVID regulations, the Supreme Court decided it didn’t have the power to enjoin S.B. 8. By a 5–4 vote, the ultraconservative majority—five justices who ignore all procedural obstacles when eager to protect religious liberty—decided it was simply helpless, for neutral jurisdictional reasons, to safeguard Roe v. Wade.

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Senate Democrats called the hearing to examine that decision as well as SCOTUS’s broader abuse of the shadow docket. When the House of Representatives held a hearing on the same topic in February, Republicans hadn’t yet decided to pretend like this problem does not, in fact, exist. Instead, several GOP members of Congress condemned the court’s secretive practices. Over the last seven months, though, it seems the Republican Party has decided to feign outrage at Democrats’ willingness to question the court’s procedures and to pretend that justice has happened by way of emergency orders since the founding.

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Wednesday’s hearing opened with Sen. Chuck Grassley excoriating Democrats for politicizing what he sees as a benign, long-standing emergency docket in order to politicize what he portrays as an oracular independent judiciary. (In reality, the court’s use of the shadow docket to alter the law has exploded since Justices Brett Kavanaugh and Amy Coney Barrett joined.) One might be forgiven for forgetting that it was Grassley who claimed that anyone (and especially the chief justice) who objected to Republicans’ blockade of Merrick Garland in 2016 was opportunistically political.

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There’s no better case to be made that the GOP believes the court belongs to them alone than the strange insistence that only the GOP can manipulate the size, composition, and agenda of the courts, and the horror they evince when anyone but a Republican levels a critique Republicans have been fundraising and campaigning on against John Roberts for over a decade, by the way, and against the Supreme Court since at least the 1960s. So the real debate isn’t over the politicization of the judicial branch, but who’s allowed to do it. When Josh Hawley declares war on the court (to fundraise), it’s heroic. When Senate Democrats do it, they are craven and shameless.

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While Serwer is fundamentally correct that the justices are gaslighting America when they demand blind fealty to their myth of judicial neutrality, the gaslighting on display this morning thus goes one further: Republican senators who routinely feigned ignorance and misled their constituents about the anti-choice preferences of their judicial nominees—that’s Susan Collins on Brett Kavanaugh, Joni Ernst on Amy Coney Barrettalso baldly asserted for years that the justices they support have never considered the issue. The pretense that, as a senator, you can be radically anti-choice as a personal and professional matter, yet wholly neutral on whether the Supreme Court is wholly neutral, means that it’s not just the justices demanding that Americans accede to a fairy tale, but also Senate Republicans. This double-decker bad faith is painful to behold.

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The best evidence of the cynical doublespeak at the hearing this morning was, as Sen. Dick Durbin pointed out, when Republican senators endlessly offered up soliloquies about the sin of abortion. Sen. Mike Lee almost wept talking about the blood spilled since Roe and Sen. Marsha Blackburn pressed a witness on how she could be unmoved by 3D ultrasounds.* But the two Republican witnesses, Jennifer Mascott and Edmund G. LaCour Jr., said not one word about the merits of S.B. 8, other than to commend its ingenuity. They spoke exclusively—as did the unsigned shadow docket order at issue—about the jurisdictional questions that allegedly made it impossible for the court to block the law. They said nothing about the merits of a law empowering bounty hunters to bankrupt abortion providers and “abettors.” They said nothing about the material harms to pregnant Texans. They were simply on hand to talk about federal jurisdiction.

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Their silence promoted the fiction that no serious lawyer believes the court had any choice but to let S.B. 8 take effect. Too bad about Texas’ maternal and infant mortality rate and the lack of exceptions for rape victims. This is not about your feelings. This divide and conquer was a perfect representation of the sleight of hand: witnesses and justices claiming they have no problems whatsoever with abortion—it’s just that the court must follow its rules. Mascott and LaCour left it to Josh Hawley and Ted Cruz and Mike Lee to defend S.B. 8 on the merits: Abortion kills babies and pro-choice advocates are radical monsters who delight in these murders.

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This cynical division of labor on Wednesday was perfectly clear. The only question is whether the public is willing to swallow the fiction. Steve Vladeck—a law professor at the University of Texas at Austin, Slate contributor, and expert on the shadow docket—put the matter starkly at the end of the hearing. “The conversation about S.B. 8 is about so much more than abortion,” Vladeck testified. “For all of the complaints by members on the other side about abortion … this precedent, a universe in which Sen. Cruz is comfortable with state legislatures cutting off the enforcement of constitutional rights that are still on the books, won’t end with abortion. And a world in which our constitutional rights are nothing more than the whims of 50 state legislatures is not a federal system. It’s not a system with the rule of law. And frankly it’s not a system that is going to be sustainable in the long term.”

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It is an encouraging sign that an esteemed law professor and Supreme Court practitioner like Vladeck is willing to lay this truth before the Senate. And it’s heartening that at least some senators are ready, at long last, to hear it.

Despite Vladeck’s warning that the shadow docket is about so much more than S.B. 8, some of the GOP senators went to great lengths to insist that abortion is not protected anywhere in the Constitution. The notion that reproductive freedom and bodily autonomy are protected by the Constitution has long been a laugh line for the conservative legal movement for decades. As Scalia put it, the idea of finding constitutional rights in the “penumbras and emanations” of enumerated liberties is “blah blah blah, garbage.”

A penumbra, by the way, is the partially shaded outer region of the shadow cast by an opaque object. It takes a certain amount of chutzpah to venerate a shadow docket while deriding the idea of shadow constitutional freedoms. But no more than it takes to spend 50 years capturing the court, then insisting that anyone who believes that happened is a partisan hack.

Correction, Sept. 29, 2021: This piece originally misspelled Marsha Blackburn’s first name.

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