Alito Says Outrage Over Supreme Court’s Use Of ‘Shadow Docket’ Is ‘Not Serious Criticism’

Supreme Court Justice Samuel Alito exposed more of his political partisanship on Thursday, using a public appearance to lash out at people who have criticized conservative justices and the high court’s increased use of the so-called “shadow docket.”

Alito, who as Supreme Court justice should appear nonpartisan, gave a public address on the court’s emergency docket at the University of Notre Dame’s Kellogg Institute for International Studies. During the speech, he launched into a 10-point rebuttal, directed at times at the media and political actors who have criticized the court’s inconsistent use of emergency applications.

“The media and political talk about the ‘shadow docket’ is not serious criticism. It is related to a deep problem that some of my colleagues have addressed recently,” Alito said.

“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. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

The Supreme Court normally receives cases with extensive records, briefs and oral arguments after they’ve made their way through lower courts ― allowing justices to ensure that their important decisions are properly informed and careful. 

The “shadow docket” of emergency appeals is reserved for rarer circumstances in which the court must act quickly to prevent imminent or irreversible harm, such as in death penalty cases. While the docket’s existence is not inherently dangerous, the Supreme Court has increasingly relied on it to issue quick rulings in favor of the conservative legal movement without much public deliberation or notice.

The court received intense backlash ― including from President Joe Biden ― particularly over its recent use of the shadow docket for Texas’ new anti-abortion law. On Sept. 1, the Supreme Court issued an unsigned 5-4 ruling overnight that allowed the extremely restrictive law to go into effect. It offered no extended reasoning for the decision and held no public oral arguments on the issue.

Alito ruled in favor of allowing the Texas law to go into effect despite it effectively gutting Roe v. Wade, the landmark 1973 court decision recognizing a constitutionally protected right to an abortion.

Justice Sonia Sotomayor delivered a blistering dissent of the Supreme Court’s decision over the Texas law, saying it “flouts nearly 50 years of federal precedents” and that the court “should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and the rule of law.” 

Justice Elena Kagan also delivered a dissent denouncing the conservative majority for using the shadow docket to effectively change the country’s laws.

The court’s decision “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.”

Alito was former President George H.W. Bush’s chosen replacement for ex-Justice Sandra Day O’Connor. He had previously worked in former President Ronald Reagan’s Justice Department, where he wrote a memo about a 1985 abortion rights case advising that “we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.”

In his speech on Thursday, Alito specifically referred to a Sept. 2 article by Adam Serwer in The Atlantic that criticized the Supreme Court’s Texas abortion decision and conservative justices’ use of the shadow docket to further right-wing agendas. 

“The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny,” Serwer wrote.

“And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.”

Alito lashed out at Serwer and his article, calling it “false” and “inflammatory” while defending the court’s decision not to implement an administrative stay so that justices could hold oral arguments.

In response to Alito’s call-out, Serwer first tweeted a phrase in Italian that loosely translates to “Hit dogs holler.” In a following tweet, Serwer said Alito’s speech proved his point, attaching an excerpt of a separate essay he wrote on Tuesday.

“With absolute control of the Court, the conservative legal movement’s main obstacle is the fact that its extreme views are unpopular,” Serwer wrote. “When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn’t make the proposition that the justices are free of partisanship any less ridiculous.”

Alito has made previously made partisan or political remarks in public as a justice. Last year, he criticized many states’ science-backed COVID-19 restrictions during a convention for the conservative legal organization the Federalist Society. He also condemned the Supreme Court’s landmark decision to legalize same-sex marriage, claiming without evidence that it has led to censorship of people who believe marriage is “a union of one man and one woman.”



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