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Justice Alito Calls Criticism Of The Shadow Docket 'Silly' And 'Misleading'

Supreme Court Justice Samuel Alito dismissed criticism of the so-called shadow docket.
Erin Schaff
Supreme Court Justice Samuel Alito dismissed criticism of the so-called shadow docket.

Supreme Court Justice Samuel Alito launched a litany of acerbic barbs at critics of the Supreme Court's so-called shadow docket on Thursday.

Noting that the term was coined in a 2015 law review article, Alito said that the term has been adopted by "journalists and some political figures" in order to convey the idea that "something sneaky and dangerous" is going on at the high court when it rules on emergency appeals seeking the court's intervention.

"This picture is very sinister and threatening, but it is also very misleading," he said in a lecture at the University of Notre Dame. "There is nothing, absolutely nothing new about emergency applications."

He added: "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 way. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution."

Addressing the court's most recent and controversial shadow docket decision, which allowed a Texas law banning abortions after about six weeks to go into effect, Alito said it is "false and inflammatory" to contend, as some critics have, that the decision "nullified Roe v. Wade."

"We did no such thing, and we said so expressly in our order," he said. Indeed, the court's 5-to-4 decision specifically left open the possibility that the court could re-examine the state law in a future case. But Alito did not address the fact that the court's decision to let the law go into effect meant that for the foreseeable future at least, almost all abortions in Texas are banned.

In dissent, Justice Elena Kagan wrote that the unsigned majority opinion "illustrates how far the court's 'shadow docket' decisions may depart from the usual principles of appellate process."

But Alito fiercely denied that, contending that the court's processes for dealing with emergency appeals has not, in reality, changed over the years.

"The truth of the matter," he said, "is that there is nothing shadowy" or really new about the process.

Indeed, the Supreme Court has long been willing to grant temporary relief in a limited number of cases to preserve the status quo, especially when there is a strong case that individuals will be harmed if the court does not act. Most often in the past these emergency orders have been used in death penalty cases to halt executions if there is a real likelihood that the death row inmate's sentence may have violated the constitution.

But there was an explosion of these emergency applications when the Donald Trump became president. From 2001 to 2017, during the presidencies of George W. Bush and Barack Obama, the solicitor general filed a total of eight applications with the Supreme Court seeking to halt lower court orders dealing most often with administration policies. That is one every other term, according to University of Texas law professor Stephen Vladeck. Of those eight applications, the court granted just four, one every other term.

In contrast the Trump administration filed 41 emergency relief requests, securing a win from the court 28 times.

"It's a silly criticism," Alito said of the notion that the court has issued more emergency rulings in recent years. Addressing some of these numbers, he said "the real complaint of the critics is that we should have granted relief when they think it should have been denied ... and denied relief when they think it should have been granted."

The justice maintained that he had no problem with legitimate criticism, but he contended that most of the criticism of the way the current court handles the shadow docket is politically motivated and that it erroneously "seeks to convey ... that a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.