The hearing, to be conducted by the Senate Judiciary Committee in the coming weeks, will probe the so-called “shadow docket” of emergency appeals the Supreme Court has relied on with increasing frequency to issue rulings, often of massive consequence, with little public deliberation or notice. An analysis conducted by Reuters found that the court’s emergency appeals rulings over the past year often favored religious groups and Donald Trump’s administration.
The unsigned 5-4 ruling permitting Texas’ new abortion restrictions to go into effect was handed down shortly after midnight on Wednesday. It offered no extended reasoning for the decision; its length was only a few paragraphs. The court also held no public arguments on the matter, as it typically does for most cases.
Although the law could still be blocked at some other stage, it remains on the books right now, effectively gutting Roe v. Wade for women in Texas and likely in other Republican-controlled states that are looking to pass similar restrictions.
“This anti-choice law is a devastating blow to Americans’ constitutional rights — and the Court allowed it to see the light of day without public deliberation or transparency,” Senate Judiciary Committee Chairman Dick Durbin (Ill.) said in a statement. “At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative Court’s abuse of the shadow docket.”
In her dissenting opinion to the Texas ruling, Supreme Court Justice Elena Kagan similarly called out the majority for using the shadow docket to effectively change the legal landscape for millions of Americans. The decision, Kagan wrote, “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.”
Although there may be good reasons to probe the Supreme Court’s “shadow docket,” Democrats have few options right now when it comes to actually protecting abortion rights in the wake of this week’s ruling. Their party is divided when it comes to making broader reforms to both Senate rules and the structure of the Supreme Court. Meanwhile, a conservative 6-3 high court majority seems hellbent on gutting ― if not entirely overturning ― Roe v. Wade in the very near future.
House Speaker Nancy Pelosi (D-Calif.) announced Thursday that Democrats will vote on the Women’s Health Protection Act, a bill that would codify abortion rights into federal law. But that legislation is almost certain to die in the Senate given its 50-50 split and the 60-vote margin needed to bypass a filibuster. Democrats couldn’t pass it even if they nuked the filibuster: two of their members, Bob Casey of Pennsylvania and Joe Manchin of West Virginia, do not support the bill.
President Joe Biden also pledged to launch “a whole-of-government effort to respond to the decision,” including possibly some administrative action from the Department of Justice or the Department of Health and Human Services. But those moves would also likely face legal challenges from conservatives, who have a friendly audience in the Supreme Court.
Democrats’ only recourse may be trying to win more seats in the upcoming midterm elections. Their hope is that extreme abortion restrictions will backfire on Republicans at the ballot box. GOP members of Congress, including those in Texas, have been oddly quiet about the Supreme Court ruling this week.
“The only thing that I know to do is go out there and organize, organize, organize and win elections,” Sen. Tina Smith (D-Minn.) told HuffPost.
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