Steve Vladeck's written testimony for Senate hearing on SB8 & SCOTUS's "shadow docket"

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Steve Vladeck
@steve_vladeck
Here's a copy of my formal, written testimony for tomorrow's Senate Judiciary Committee hearing on #SB8 and the rise of #SCOTUS's "shadow docket":

https://justsecurity.org/wp-content/uploads/2021/09/Vladeck-SJC-Testimony-09-29-2021.pdf…

Testimony from each of the witnesses will eventually be posted here:

Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket
United States Senate Committee on the Judiciary
judiciary.senate.gov
8:38 AM · Sep 28, 2021

https://www.justsecurity.org/wp-content/uploads/2021/09/Vladeck-SJC-Testimony-09-29-2021.pdf

Chairman Durbin, Ranking Member Grassley, and distinguished members of the Committee:

Thank you for the invitation to testify today. As you know, I hold the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, where my research and writing focus on the intersection of constitutional law, national security law, and the federal courts. In addition to writing and teaching about the Supreme Court, I also practice before it (I’ve argued three cases over the last four Terms), and help CNN cover it (as its Supreme Court analyst). It’s therefore not only my distinct honor, but also a real treat, to have the opportunity to participate in today’s hearing.

The Supreme Court’s 5-4 ruling in the SB8 case just before midnight on Wednesday, September 1 helped to bring an enormous amount of public attention not only to Texas’s controversial (and, in my view, clearly unconstitutional) anti-abortion law, but to the rise of what has come to be known as the Supreme Court’s “shadow docket.” In many respects, the one- paragraph decision in Whole Woman’s Health v. Jackson1 reflected the inevitable collision of a series of subtle but significant shifts in how the Justices have handled emergency applications with a deliberate attempt by the Texas legislature to frustrate meaningful judicial review of its ban on virtually all abortions after the sixth week of pregnancy.

My goal in my testimony today is to help put both of these developments into context — and to explain in detail why I believe that Justice Kagan was exactly right in her dissent in Jackson, in which she concluded that “the majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”2

To that end, my testimony has six distinct objectives: (1) to introduce the shadow docket and describe what it comprises; (2) to document the rise in several specific types of significant shadow docket rulings in the last few years; (3) to identify some of the possible explanations for this uptick; (4) to outline at least some of the serious concerns that these developments raise; (5) to situate SB8 — and the litigation challenging it — within the broader conversation about the shadow docket; and (6) to sketch out some potential reforms that both the Court and Congress ought to consider in response both to SB8 specifically and to the rise of the shadow docket, more generally.

*snip*

[lagomorph777]

1. I'm glad Durbin is looking into this.

Thanks for sharing.

[ZonkerHarris]

2. k&r