Texas, abortion and the tyranny of the shadow docket

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https://thehill.com/opinion/judiciary/570965-texas-abortion-and-the-tyranny-of-the-shadow-docket

Texas, abortion and the tyranny of the shadow docket
By Elliot Mincberg
09/06/21 04:01 PM EDT

If there was any doubt about the growing menace of the federal courts’ “shadow docket,” the Supreme Court’s disastrous and opaque ruling allowing an unconstitutional abortion ban to go forward in Texas has erased it. This shadow docket system has become the modern equivalent of the smoke-filled room, where decisions with far-reaching consequences are made in secret and without accountability. This is not how the court system, or democracy, is supposed to work.

What’s more, the rise of this trend correlates directly to the influx of Trump-appointed judges to the federal courts.

In the Texas abortion ban case, the process was shrouded in secrecy from the start. When the law was passed effectively banning abortions after six weeks, a Texas district court judge agreed to hold a hearing on a request by doctors and clinics for a preliminary injunction against it. That was scheduled for Aug. 30, the Monday before the ban was set to take effect.

But Aug. 27, two Trump-appointed Fifth Circuit judges, Kyle Duncan and Kurt Engelhardt, joined by a very conservative Bush appointee, issued a three-sentence order that cancelled the hearing and stayed all other proceedings in the case. And that was it: The judges included no explanation for their edict. The challengers immediately asked the court to allow the hearing or to decide the issue itself. In another dictatorial order with no explanation on Aug. 29, the same three judges refused the request. Score one for the shadow docket — the ban was moving ahead.

So on Aug. 30, Texas health care providers went to the Supreme Court, asking it to rule. But the Court did nothing while the law took effect on Tuesday night. Then, late on Wednesday, it issued a 5-4 one-paragraph order denying relief to the health care providers and authorizing the law to continue in effect. The majority, dominated by Trump-appointed justices, did not even explain why they rejected Chief Justice John Roberts’s call to temporarily suspend the law, so that lower courts and the Supreme Court could fully consider it with “full briefing and oral argument,” rather than through the hasty “shadow docket” edict.