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Charlie Savage @charlie_savage : The shadow docket, explained (Original Post)
BeckyDem
Sep 2021
OP
crickets
(25,952 posts)1. Tweet has a share link to NYT. It loaded fine for me from there.
Here's hoping it works for you, because this is an important article.
The latest and perhaps most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a novel Texas law that bars most abortions in the state a momentous development in the decades-long judicial battle over abortion rights.
The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated just how far the courts shadow-docket decisions may depart from the usual judicial process and said use of the shadow docket every day becomes more unreasoned, inconsistent and impossible to defend. [snip]
Criticism of the use of the shadow docket has been building for years but rose to a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he portrayed as a flagrantly unconstitutional law to take force and calling it shameful that the courts majority did so without hearing arguments or issuing any signed opinion. He announced hearings.
Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Courts dangerous and cowardly use of the shadow docket, he said in a statement. Decisions like this one chip away at our democracy.
The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated just how far the courts shadow-docket decisions may depart from the usual judicial process and said use of the shadow docket every day becomes more unreasoned, inconsistent and impossible to defend. [snip]
Criticism of the use of the shadow docket has been building for years but rose to a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he portrayed as a flagrantly unconstitutional law to take force and calling it shameful that the courts majority did so without hearing arguments or issuing any signed opinion. He announced hearings.
Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Courts dangerous and cowardly use of the shadow docket, he said in a statement. Decisions like this one chip away at our democracy.
Linked in the article is written testimony of Samuel Bray, a University of Notre Dame law professor who testified about the shadow docket this summer before President Bidens commission studying possible Supreme Court changes:
https://www.whitehouse.gov/wp-content/uploads/2021/06/Bray-Statement-for-Presidential-Commission-on-the-Supreme-Court-2021.pdf
More for those who can't get past the paywall:
https://dworkenlaw.com/what-is-the-shadow-docket-and-why-is-it-important/
https://www.theguardian.com/commentisfree/2021/aug/31/supreme-court-us-cases-shadow-docket
https://news.bloomberglaw.com/business-and-practice/shadow-docket-use-in-supreme-court-abortion-ruling-fuels-angst
eta - great find, BeckyDem! Thanks for posting it.
BeckyDem
(8,361 posts)2. Thank you so much for doing that!
Johnny2X2X
(18,973 posts)3. The Republicans stole the Supreme Court
We didn't stop them and I don't know if it was possible to stop them, but the Supreme Court is now part of the GOP and the 5 extremists on it are just getting started.
Feels hopeless right now, look for them to end the right to vote before year's end.
BeckyDem
(8,361 posts)4. It makes me anxious too.
It may also cause Biden to go more bold than any president before him regarding SCOTUS..we'll see.