Thinking about a nondecision that never came down via the so-called shadow docket in the middle of the night that allowed the second-largest state in the country to overturn a 50-year-old precedent without the Supreme Court writing a word is a bit like dancing between the raindrops. By doing nothing at all on Wednesday night, the Supreme Court largely evaded top-of-the-fold coverage or glaring headlines even as—for all intents and purposes—abortions after six weeks simply stopped in Texas at midnight (and not coincidentally on the day Texas Republicans passed their effort to further minority rule at the ballot box).
It’s easy to be angry at Journalism for failing to prioritize the story. Or at Democrats who control the House, the Senate and the White House for failing to do anything to protect women’s right to choose in Texas. But the problem with covering a thing that didn’t ever exactly happen is that Journalism is largely terrible at it, and the problem with being mad at Democrats is that quite literally the only thing that can be done about a stolen federal judiciary is to reform it. So far, Democrats are a combination of unable or unwilling when it comes to actually reforming the courts. (But don’t worry—there’s a Commission!) Supreme Court conservatives who know this have thus become terrifyingly adept at judging between the raindrops—at deciding life-and-death matters by way of unreasoned orders in the dead of night, based almost entirely on their feelings. They have fully mastered the game of denial and deflection, dressed up as humility and institutionalism.
If you want to be pissed off at someone today, kindly be pissed off at Texas Republicans, who passed a law that evades judicial review by design, and at the judges and activists who delight in its unbearable cleverness. (These are the people who used to say they were just helping women make better decisions but now say women can make no decisions). Be pissed off at the stealing of the federal courts that took place in plain sight, which pissed off plenty of people, but not, apparently, enough people to stop it. Be pissed off at abortion opponents who insisted in public that their justices would never disturb Roe while smirking in private because they knew it would happen within months. And if you want to see someone do something about it, do the only thing that might make a difference and engage in an effort to rebalance the federal courts to be reflective of what voters prefer and the law demands.
One of the problems we are currently facing as a nation is that after four years of the loudest shouting imaginable, everything seems to be happening in quiet. Donald Trump was a master at doing lawlessness out in the open, brazening out his legal feelings and daring the courts to stop him. But his judges—the ones with lifetime appointments—have become masters of doing lawlessness in the shadows, codifying their legal preferences into law without much regard for the role of precedent, or the need for standing, or concern for imminent harms suffered. And so we end up with nondecisions like the choice to allow Texas’ unconstitutional law to go into effect, decisions that seem to take a vast majority of people by surprise even though they were set in motion decades ago and were always very plainly the goal.
To President Joe Biden, and the Democrats who are madly tweeting that they are fighting to defend abortion rights in Texas, one does want to know what that looks like, beyond tweeting that you are fighting to defend abortion rights in Texas. What exactly is the plan here? The Presidential Commission on the Supreme Court of the United States is not about to reinstate the rule of law in Texas.
Texas has now made 85 percent of abortions in the state impossible for women—these are real people—and we all are on tenterhooks waiting to see whether and how the Roberts court allows it and justifies it.* That isn’t the way the legal system was designed to work at all. The problem with watching jurisprudence unfold as though it’s reality television is that the court does all its work during the commercials. There was nothing that could have been done to stop this particular case if a bunch of Trump judges saw no emergency. There’s no point in spending the day berating one another for failing to pay attention to the thing we didn’t see because it was designed to occur unseen. The game is bigger than this, has always been bigger, because the game is about power, as it has always been. Which means that the only things to do now are work to protect the vote and fix the courts—the boring tedious work that also happens outside the spotlight and beneath the fold. If the systemic machinery of justice isn’t immediately repaired, what happens in the shadows is going to keep catching us off guard, late at night, while we struggle to decide if Roe was overruled this week, or nullified, or merely paused for a few million people. Until the courts do their work in the open, according to the agreed-upon rules of the road, this slow erosion of the rule of law is always going to occur between the raindrops, and we’re going to feel surprised and powerless every single time.
Correction, Sept. 7, 2021: This article originally misstated that the Texas law made abortions impossible for 85 percent of women in the state. The law makes 85 percent of abortions performed in the state illegal.