Justice Samuel Alito leapt into a political fray over the Supreme Court on Thursday, lashing back at critics who have accused the justices of increasingly issuing momentous decisions on its emergency docket without the benefit of a full briefing or oral arguments.
Alito said complaints about the court’s “shadow docket” are misplaced and intended to conjure up images of justices conspiring to advance their ideological agendas under the cover of darkness.
“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,” Alito said during a speech at the University of Notre Dame. “This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution."
One measure of how directly Alito was stepping into the political battle: As he acknowledged during his speech, just yesterday, the Senate Judiciary Committee held a hearing to air criticism of the high court for its use of the so-called “shadow docket” in high-profile cases.
In his address, Alito repeatedly railed against the media for propagating what he called “unfair and damaging attacks” on the court, but also accused “political figures” of doing the same.
“The media and political talk about the shadow docket is not serious criticism,” Alito insisted. At another point, he snarked at the press: “Journalists may think we can dash off an opinion the way they dash off articles.”
In defending the high court against its critics, the George W. Bush appointee discussed in some detail three recent, high-profile emergency rulings. They include a decision earlier this month allowing a controversial Texas abortion ban to go into effect, a ruling last month requiring the Biden administration to reinstate the Trump-era Remain-in-Mexico policy for many who are present at the border seeking asylum, and another decision from August blocking enforcement of a coronavirus-related, federal ban on evictions.
Alito denounced what he called “false and inflammatory claims” that the court had overruled Roe v. Wade in its emergency order refusing to block the Texas abortion ban. “We did no such thing and we said that expressly,” the conservative justice declared.
Alito noted that the urgency in the Texas case came not from the justices, but from abortion providers who sought relief from the justices about 36 hours before the law was to kick in. He said that while some critics fault the court for not holding oral arguments on emergency matters, abortion-rights advocates did not seek them in that instance. “They asked us to rule within hours on the papers,” he said.
The substance of Alito’s defense of the three decisions was not extraordinary, but his commentary on decisions so recently issued by the court was rather unusual. In addition, at least two of the disputes seem likely to come before the court in some form again in the coming months.
Alito insisted that the court’s practices around emergency decisions haven’t actually changed much and that there is no effort on the justices’ part to hide what they are doing. He dismissed as “rank nonsense” some of the attacks.
“This picture is very sinister and threatening, but it is also very misleading,” he said. “There’s nothing — absolutely nothing new about emergency applications… There is nothing new or shadowy about the procedure we followed in those cases.”
Alito acknowledged that the court is seeing more emergency applications and therefore issuing more decisions on that basis, but said that isn’t the justices’ fault.
“It’s like complaining about the emergency room for treating too many accident victims who come in,” he said. “What are we supposed to do? Are we supposed to decline to adjudicate them? Are we supposed to impose a quota? … It’s a silly criticism.”
Alito didn’t single out any media figures or politicians by name and he seemed to intentionally avoid identifying the academic who coined the term shadow docket in 2015: William Baude of the University of Chicago.
However, Alito did mention one of the most strident critics of the court’s emergency actions: Stephen Vladeck of the University of Texas. The jurist said a proposal Vladeck has made to speed up lower court action could have unwelcome effects.
For his part, Vladeck said Alito distorted many of the criticisms he and others have offered. “It's easy for a speaker to appear convincing when he responds to how *he* chooses to describe the criticisms, versus what the criticisms actually are,” Vladeck wrote on Twitter.
Alito insisted that the court never makes precedent through its emergency rulings. However, lower courts routinely use the decisions that way, especially when deciding whether they should grant emergency relief.
Alito also claimed that the court’s handling of emergency applications “could not be more transparent,” although — despite the short timelines — it can often take as much as a day for applications to appear on the court’s website.
In addition, for many years, the court almost never issued a majority opinion or order in emergency cases, although dissenting justices were free to publish their dissents. This led to confusion as journalists and others seeking to interpret the court’s action were left with no definitive account of the majority’s reasoning and only the potentially biased assessment of the dissenting justices.
In recent years, the court has moved toward issuing some explanation of its reason for acting or not acting on high-profile emergency applications.
In his remarks Thursday, Alito conceded some of the court’s public justification for its handling of emergency matters in the past may have fallen short. “Maybe we could have said more. Maybe we could have provided a better explanation,” he said.
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