SCOTUS's Stay of Mifepristone Ruling a Win for Abortion Rights, but Shows Dangerous Power of "Shadow Docket"

On Friday night, the clock ticked toward the Supreme Court’s 11:59 p.m. self-imposed deadline to rule on access to medication abortion. Deeply conservative lower-court judges had thrown down the gauntlet, drastically curtailing what’s left of abortion access and daring the Court to let them do it via its so-called shadow docket — what’s meant to be a temporary, procedural stage rather than the exhaustively briefed and argued merits docket. In his forthcoming book, The Shadow Docket, University of Texas law professor Steve Vladeck describes its increasing use as the Court intervening “​​preemptively, if not prematurely, in some of our country’s most fraught political disputes through decisions that are unseen, unsigned, and almost always unexplained.” The shadow docket’s use spiked during the Trump administration, enabling some of its most egregious policies via a legal backdoor. Less than a year after overturning Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, would the Court use this power to yank a pill approved 23 years ago on the shakiest of legal grounds?

Just before 7 p.m., the answer came: no, at least not yet. Dobbs author Samuel Alito is pissed. Alito’s solo written dissent sourly took on not just the case at hand but critics of the use of the shadow docket in general — including some of his fellow justices. To break down this intriguing turn of events, I spoke to Vladeck about his critique of the shadow docket and why it has gotten under Alito’s skin.

What is the shadow docket? Why should nonlawyers care about it?
The shadow docket is an evocative shorthand that Will Baude, the Chicago law professor, coined to describe basically everything that the Supreme Court does other than the merits docket — so other than the 60 to 70 lengthy, signed decisions that we get each term in cases that were argued and that got the full nine yards of process.

Will’s insight, which I’ve somewhat shamelessly appropriated, is that there’s a lot of important stuff that actually happens in the shadows — that just because the Supreme Court doesn’t write as much, and just because it doesn’t explain itself as much, it doesn’t make a lot of these orders any less important or impactful. He wrote this in 2015, but the irony is that, if anything, the ensuing eight years have totally blown that up. We’ve been hit over the head with example after example of incredibly significant rulings that the Court has handed down through unsigned and usually unexplained orders — like the one we got Friday night.

Was there one moment for you when you thought, Something big is going on here that I need to devote my time to understanding?
Before 2017, it was exceedingly rare for the Supreme Court to use any kind of emergency order to adjust federal or even statewide policies. Almost all of the pre-2017 cases were death-penalty cases where emergency orders were simply about whether an execution would go forward. The real shift that got me working on this was starting with the second version of the travel ban, when the Court allowed the Trump administration to carry out a lot of it. Then over the ensuing summer of 2017, there was all this litigation over what the stay meant, where it’s just, and it seemed like Pandora’s box had been opened. The Supreme Court just all of a sudden seemed to be much more willing to resolve these kinds of questions through this extraordinary, abbreviated posture. The Trump administration was quite successful in court, but I think part of its success was grabbing procedural victories in cases in which it was unlikely to grab legal ones.

Obviously, in 2017, Trump comes into office and the Court starts to transform. Neil Gorsuch and Brett Kavanaugh join the Court — and, eventually, Amy Coney Barrett does too. Is it fair to say that this increase you’re talking about is a joint project between the Trump administration and its appointees? One that Alito and Thomas were excited to join?
It takes two to tango. It wasn’t just that the Trump administration was so much more aggressive compared to its predecessors in trying to use unsigned, unexplained orders to carry out policies. It’s that the Court largely acquiesced. The Trump administration went to the Court 41 times in four years for emergency relief. That’s in contrast to eight requests over the prior 16 years from the Bush and Obama administrations. A really important part of the story is that the Court granted 28 of those requests in whole or in part — this is important — and never suggested that any of the requests it denied were somehow overreaching or inappropriate.

I think it was a combination of the executive branch pushing the envelope, the justices letting it push the envelope, then while this is all going on, two really important changes took place in the Court’s membership.