WASHINGTON, D.C., October 5, 2021 – Today, Alliance for Justice announced the release of a new report on the Supreme Court’s “shadow docket.” The report, entitled “In the Dead of Night: The Supreme Court’s Use of the Shadow Docket to Enact a Radical and Hyper-Partisan Agenda,” details how the Court’s conservative majority has changed the previously obscure shadow docket to make decisions that are destroying the hard-won rights of everyday people.
Traditionally, the Supreme Court’s shadow docket handled noncontroversial procedural decisions and requests for emergency relief before a full hearing on the merits could take place. The docket was rarely used to adjudicate complex legal questions of any national significance. Increasingly, however, the Court’s conservative majority has used the shadow docket to make significant rulings without having properly heard the merits of a case. What used to be routine orders have increasingly been accompanied by vigorous dissents by the Court’s liberal justices, who have noted that the conservatives’ increasingly arbitrary and partisan shadow docket rulings are becoming impossible to defend.
AFJ’s report outlines eight key examples of how the Court’s conservatives have abused the shadow docket. This includes recent rulings that allowed Texas’s abortion ban to take effect, ended the COVID eviction moratorium, thwarted public health officials’ ability to institute policies stopping the spread of COVID, allowed President Trump’s “Muslim ban” to take effect, and greenlit President Trump’s ban on transgender military service.
The report comes less than one week after the Senate Judiciary Committee held a hearing on the Court’s use of the shadow docket to allow Texas’s unconstitutional abortion ban to take effect. The Court’s conservatives made that ruling in a one-paragraph, unsigned order disregarding nearly 50 years of established precedent.
Alliance for Justice President Rakim Brooks issued the following statement:
“Trust in this Supreme Court is at an all-time low, and it’s in no small part because the Court’s conservative justices are using the shadow docket to institute radical changes to American society. Our health and civil rights have already been compromised too many times with no accountability over how or why these decisions are being made.
“As our new report shows, the Supreme Court’s increasingly lawless conservative majority is abusing the shadow docket to enact sweeping and unpopular policies. Justice Alito and other members of the Court’s conservative bloc can downplay the implications of their actions as much as they want, but they aren’t fooling anyone. Millions of people of reproductive age are unable to get a legal abortion in Texas, as many as six million families are at risk of eviction, and an unknown number of refugees are being unlawfully forced to remain in Mexico due to the Court’s dangerous actions. Court reform is clearly imperative, or we can expect these abuses of power to continue undermining our basic constitutional protections.”