Alito: Criticizing Anti-Abortion ‘Shadow Docket’ Ruling an Attempt to ‘Intimidate’ Supreme Court

© REUTERS / Erin SchaffAssociate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, U.S., April 23, 2021.
Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, U.S., April 23, 2021. - Sputnik International, 1920, 01.10.2021
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US Associate Supreme Court Justice Samuel Alito has fired back at the wave of criticism of the nation’s top court, saying its use of the “shadow docket” to rule on important cases was legitimate, and rejecting claims the conservative-dominated court has become more political in recent years.
The conservative justice unleashed his fusillade during a speech at the University of Notre Dame in Indiana on Thursday.
“The catchy and sinister term ‘shadow docket’ 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,” Alito said. “And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
"The truth of the matter is there was nothing new or shadowy about the procedures we followed in those cases," he added.
The George W. Bush-appointed justice rejected claims that the court “is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view, without waiting for the lower courts to consider the issues, without proper briefing or oral argument and without issuing full opinions.”
As Sputnik has reported, the Supreme Court has dramatically increased its use of the shadow docket in recent years, transforming it from a tool for delivering quick rulings on smaller cases that couldn’t wait into one allowing them to make major decisions with little deliberation beforehand or jurisprudential explanation after.
Over the summer, some of its more controversial uses of the shadow docket have included striking down the US Center for Disease Control and Prevention (CDC) eviction moratorium; forcing the Department of Homeland Security to reinstate the Migrant Protection Protocols; and allowing a Texas law to take effect that banned abortions after six weeks. All were defeats for the Biden administration and all were made by majorities composed solely of conservative justices, who outnumber the liberal justices six to three.
After the rulings, liberal justices criticized their conservative colleagues’ decision to issue the abbreviated rulings, with Justice Stephen Breyer saying the court should “be careful” about how often it does so.
“These questions call for considered decision-making, informed by full briefing and argument,” Breyer wrote in his dissenting opinion on overturning the eviction ban on August 26. “Their answers impact the health of millions.”
In her September 1 dissenting opinion on allowing the Texas “heartbeat” law to stand, Justice Elena Kagan said it “illustrates just how far the Court's 'shadow-docket' decisions may depart from the usual principles of appellate process … In all these ways, the majority's decision is emblematic of too much of this Court's shadow-docket decision-making - which every day becomes more un-reasoned, inconsistent, and impossible to defend.”
As a consequence, the Senate Judiciary Committee has opened an inquiry into the court’s use of the shadow docket - its second such probe this year. An analysis of shadow docket rulings over the previous 12 months conducted by Reuters in July found that the court’s use of them heavily “favored religion and [then-US President Donald] Trump.”
Alito fired back at these critics on Thursday.
“The real complaint of these critics is that we have granted relief when they think it should have been denied, and we have denied relief when they think it should have been granted,” Alito said.
“If they want to criticize us on those grounds, fine, let them make their case. But attempting to disguise their real complaint with a lot of talk about the sinister, secretive shadow docket is unworthy.”
“Put aside the false and inflammatory claim that we nullified Roe v Wade,” he said, referring to the 1973 ruling that legalized abortion and created a legal framework for its regulation, which many liberal critics have said the Supreme Court violated last month. “We did no such thing. And we said that expressly in our order. The application was filed about 36 hours before the law was scheduled to take effect. It was impossible to have oral arguments during that period of time.”
Two of Alito’s conservative colleagues, Justices Amy Coney Barrett and Clarence Thomas, have also spoken out recently to rebut rising criticism that the court has become more political.
However, polls conducted in the last month show public confidence in the Supreme Court has sharply declined. Gallup found that between July and late September, public approval of the court declined by 9% from 49% to 40% of those surveyed - its lowest rating ever recorded for the high court - and confidence in the US judicial system overall was approaching its lowest-ever number at 54%. Marquette University Law School reported similar numbers during the same time frame.
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