House Judiciary Committee Chair Jerry Nadler announced Thursday that his committee would hold hearings "to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket" following the court's stunning and indefensible decision to overturn abortion rights in Texas. Senate Judiciary Committee Chair Dick Durbin followed suit Friday, though neither released dates for those hearings.
"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," Durbin said. "Allowing a flagrantly unconstitutional law to take effect, functionally denying women in the state of Texas their constitutional right to abortion, is bad policy," Nadler said in his announcement. "Doing so in the middle of the night, without the benefit of a single argument, in an unsigned opinion, is shameful. This action does more than undermine fundamental rights and basic health care—it places lives in grave danger."
The U.S. Supreme Court, now dominated by justices who rose through the dark money-fueled Federalist Society conveyor belt, is out of control. As Adam Serwer tweets, "There are three reasons the Supreme Court issued a disingenuous midnight decision all but nullifying a constitutional right by shadow docket: Because they wanted to, because they could, and because fuck you." Justices Elena Kagan and Sonia Sotomayor wrote stunning dissents essentially saying the same thing.
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Sotomayor called it "a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas." Kagan wrote that it "is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend."
While ending abortion rights protections for Texans in the middle of the night in an unsigned order that was just one paragraph long is indeed breathtaking and audacious, it's just the topper on a shit sundae the Court has been serving in both its regular and shadow decisions. Through the shadow docket, the conservatives have issued 19 anonymous rulings so far this year and 29 since mid-2020, including 10 emergency requests on "religious freedom" striking down COVID-19 restrictions. Those rulings almost certainly led to infections and deaths.
That's only one way there's blood on the hands of the justices. They've allowed the execution of 13 death row inmates. They intervened in the pubic health crisis decision-making powers of the Centers for Disease Control and Prevention and ended the federal eviction moratorium, also contributing to COVID-19 infections and, inevitably, deaths. That's after they intervened in New York State, blocking a state eviction moratorium. Now they're going to harming, potentially killing, women in Texas who will find one way or another to have an abortion, and for many those ways will be dangerous.
The two congressional committees, Senate and House, should at least explore the idea of expanding the court. They should go further, they should endorse it and the legislation that's been introduced in both chambers should get floor votes. In some circles, even among progressives, it's controversial. Perry Bacon Jr. calls it "a terrible solution to the problem," but also "the only actual solution."
To those who say it's a radical change that will only delegitimize the court further as a partisan tool, look at the current court and try to argue that it isn't already delegitimized by its partisanship. For example, from law professor Steve Vladeck, "Since Justice Amy Coney Barrett joined the court in October, the justices have issued seven emergency injunctions to block state coronavirus restrictions, compared with a total of four injunctions directly blocking state laws issued by the court during the first 15 years of Chief Justice John G. Roberts Jr.’s tenure."
To those who say it will only result in further, future hyper-partisanship when a Republican president and Congress add even more judges, a tit-for-tat: We're already there and Republicans have already gone to extraordinary measure to pack not just the Supreme Court, but the appeals courts as well. From refusing to work with President Barack Obama to name federal judicial candidates, to refusing to even give his final Supreme Court nominee a vote, under Mitch McConnell the Republicans have already packed the courts and the Supreme Court with three illegitimate justices.
Neil Gorsuch is sitting in a seat pilfered by McConnell and Senate Republicans when they shrugged off their constitutional obligation to advise and consent on judicial nominations and blockaded Merrick Garland. Then there's Brett Kavanaugh, whose experience, temperament, and willingness to play fast and loose with the truth should have disqualified him from even being nominated, let alone the numerous and credible sexual assault allegations, his very hinky finances, and the multiple perjury issues. Amy Coney Barrett, who had had very short and very controversial previous judicial experience was rushed onto the court in record time—literally days before the presidential election and while ballots were already being cast.
If that's not partisanship out of control on the highest court of the land, what is? All nine seats? The norms of the Supreme Court, of the Senate, of the basic functioning of the three branches of government, have already been blown to smithereens. It's just that other institutions, like the traditional media, and certain elected Democrats have just been too polite to acknowledge that. Surely, they've been reasoning, the weight of responsibility of a seat on the Supreme Court will temper these zealots and their baser, partisan instincts will be tamped down. Surely, they argue, the thoughtful measured Chief Justice John Roberts will influence them, bring them to a more balanced judicial philosophy. Hah.
Democrats have been "keeping their powder dry" for so long they've forgotten what they even have powder for. Actually, they've kept it so long it's become obsolete. Because while they've been counseling caution and "we'll get them at the ballot box" the Republicans have gone nuclear. With the help of their packed Supreme Court, they've even taken the ballot box away.
If throwing out five decades of jurisprudence protecting the lives and health AND RIGHTS of more than half of the population isn't an emergency worth breaking the glass of institutional norms for, then nothing is.
"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," Durbin said. "Allowing a flagrantly unconstitutional law to take effect, functionally denying women in the state of Texas their constitutional right to abortion, is bad policy," Nadler said in his announcement. "Doing so in the middle of the night, without the benefit of a single argument, in an unsigned opinion, is shameful. This action does more than undermine fundamental rights and basic health care—it places lives in grave danger."
The U.S. Supreme Court, now dominated by justices who rose through the dark money-fueled Federalist Society conveyor belt, is out of control. As Adam Serwer tweets, "There are three reasons the Supreme Court issued a disingenuous midnight decision all but nullifying a constitutional right by shadow docket: Because they wanted to, because they could, and because fuck you." Justices Elena Kagan and Sonia Sotomayor wrote stunning dissents essentially saying the same thing.
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Sotomayor called it "a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas." Kagan wrote that it "is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend."
While ending abortion rights protections for Texans in the middle of the night in an unsigned order that was just one paragraph long is indeed breathtaking and audacious, it's just the topper on a shit sundae the Court has been serving in both its regular and shadow decisions. Through the shadow docket, the conservatives have issued 19 anonymous rulings so far this year and 29 since mid-2020, including 10 emergency requests on "religious freedom" striking down COVID-19 restrictions. Those rulings almost certainly led to infections and deaths.
That's only one way there's blood on the hands of the justices. They've allowed the execution of 13 death row inmates. They intervened in the pubic health crisis decision-making powers of the Centers for Disease Control and Prevention and ended the federal eviction moratorium, also contributing to COVID-19 infections and, inevitably, deaths. That's after they intervened in New York State, blocking a state eviction moratorium. Now they're going to harming, potentially killing, women in Texas who will find one way or another to have an abortion, and for many those ways will be dangerous.
The two congressional committees, Senate and House, should at least explore the idea of expanding the court. They should go further, they should endorse it and the legislation that's been introduced in both chambers should get floor votes. In some circles, even among progressives, it's controversial. Perry Bacon Jr. calls it "a terrible solution to the problem," but also "the only actual solution."
To those who say it's a radical change that will only delegitimize the court further as a partisan tool, look at the current court and try to argue that it isn't already delegitimized by its partisanship. For example, from law professor Steve Vladeck, "Since Justice Amy Coney Barrett joined the court in October, the justices have issued seven emergency injunctions to block state coronavirus restrictions, compared with a total of four injunctions directly blocking state laws issued by the court during the first 15 years of Chief Justice John G. Roberts Jr.’s tenure."
To those who say it will only result in further, future hyper-partisanship when a Republican president and Congress add even more judges, a tit-for-tat: We're already there and Republicans have already gone to extraordinary measure to pack not just the Supreme Court, but the appeals courts as well. From refusing to work with President Barack Obama to name federal judicial candidates, to refusing to even give his final Supreme Court nominee a vote, under Mitch McConnell the Republicans have already packed the courts and the Supreme Court with three illegitimate justices.
Neil Gorsuch is sitting in a seat pilfered by McConnell and Senate Republicans when they shrugged off their constitutional obligation to advise and consent on judicial nominations and blockaded Merrick Garland. Then there's Brett Kavanaugh, whose experience, temperament, and willingness to play fast and loose with the truth should have disqualified him from even being nominated, let alone the numerous and credible sexual assault allegations, his very hinky finances, and the multiple perjury issues. Amy Coney Barrett, who had had very short and very controversial previous judicial experience was rushed onto the court in record time—literally days before the presidential election and while ballots were already being cast.
If that's not partisanship out of control on the highest court of the land, what is? All nine seats? The norms of the Supreme Court, of the Senate, of the basic functioning of the three branches of government, have already been blown to smithereens. It's just that other institutions, like the traditional media, and certain elected Democrats have just been too polite to acknowledge that. Surely, they've been reasoning, the weight of responsibility of a seat on the Supreme Court will temper these zealots and their baser, partisan instincts will be tamped down. Surely, they argue, the thoughtful measured Chief Justice John Roberts will influence them, bring them to a more balanced judicial philosophy. Hah.
Democrats have been "keeping their powder dry" for so long they've forgotten what they even have powder for. Actually, they've kept it so long it's become obsolete. Because while they've been counseling caution and "we'll get them at the ballot box" the Republicans have gone nuclear. With the help of their packed Supreme Court, they've even taken the ballot box away.
If throwing out five decades of jurisprudence protecting the lives and health AND RIGHTS of more than half of the population isn't an emergency worth breaking the glass of institutional norms for, then nothing is.