Judicial Shadowland

Perhaps the most important part of the Texas SB 8 law that bans abortion after a fetal heart beat is detected (at approximately 6 weeks) isn’t the fact that at least 85 percent of abortions in Texas take place after the sixth week of pregnancy, nor the fact that the sixth week of gestation is so early in a pregnancy that many people aren’t even aware they are pregnant. Nor even the fact that this arbitrary time frame clearly violates the precedent established in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”

No, maybe the most significant legal part of the law is its enforcement mechanism. No Texas state officer is permitted to enforce the statute. Instead, the law permits “any person, other than an officer or employee of a state or local governmental entity in this state” to file a lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of an abortion.” A plaintiff who prevails in such a lawsuit is entitled to bounty of at least $10,000, paid by the person they sued.

The Texas Legislature fashioned this convoluted scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. This is necessary because the 11th Amendment that prohibits federal courts from hearing suits against the state itself, so individuals representing the states through employment or appointment are used.  By prohibiting state officers from enforcing the law directly and relying instead on citizen bounty hunters, the Texas hopes to make it difficult for federal courts to stop the law, or at least slow them down.

The Texas law, which took effect Wednesday at the stroke of midnight means anyone who is even suspected of performing an abortion after the sixth week of pregnancy can be hauled into court at any time by a private citizen. The abortion provider will then have to hire a lawyer and defend itself against any and every lawsuit. And if the provider loses just one case, it will have to pay a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.”

Note that there is no cap in the law for the bounty, it merely states “not less” than $10,000.  So, as Ian Millhiser has noted, “a judge with particularly strong anti-abortion views might award a bounty of $20,000, or $50,000, or $18 million.”

The language is also particularly loose with regard to who might be held responsible. Anyone who “aids or abets” the abortion can be hauled before a Texas court. As NYU School of Law professor Melissa Murray recently pointed out in the New York Times, “If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there.”

And the problem here goes beyond Texas. For if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits. Some states, including Florida, are already considering legislation similar to SB 8.

If that is the most significant legal part of the law, the close runner up is the vehicle through which this all came to pass—the so called ‘shadow docket.’

Basically, the shadow docket is “a mix of emergency motions and other decisions that receive only cursory briefing and no oral argument.” In the instance of SB 8, the justices took away the right to an abortion in one-paragraph, after considering the case for less than three days.

Since Aug. 24, that truncated process known as the “shadow docket” has moved at astronomical speed, producing decisions related to immigration, COVID-19 and evictions and, most recently, abortion.

Cumulatively, the effect is like watching the Titanic of deliberative case law the Supreme Court usually takes months to decide rapidly sinking into the deep, while the shadow court’s emergency orders and injunctions with little legal reasoning become the norm.

Three major cases—effecting millions of citizens– have been decided by the so called shadow docket in just the last few weeks. The first decision dealt with the Biden administration’s attempt to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the U.S. With three liberal justices in dissent, the high court refused to block a lower court ruling ordering the administration to reinstate the program informally known as “Remain in Mexico.”

Days later the court’s conservative majority said the Centers for Disease Control and Prevention lacked the authority to re-impose a moratorium on evictions, a temporary ban that was put in place because of the corona virus pandemic.

And this past week, the court allowed Texas law SB 8 to go forward banning most abortions in the state and instantly becoming the biggest curb to the constitutional right to an abortion in decades, despite the fact that the justices said there were serious questions about the constitutionality of the law.

In none of these cases were oral arguments offered, and fully reasoned majority opinions were entirely absent. In fact, the dissents offered by justices who disagreed with the majority were by far the most thoroughly articulated legal arguments. The single paragraph ‘reason’ given by the majority for allowing SB 8 to proceed in Texas was that it declined to grant relief because of “complex and novel antecedent procedural questions,” that, in fact, the Texas legislature had consciously designed. As Sotomayor noted in her dissent, “Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked.”

Those decisions, with the conservative wing of the court in the majority, have the potential to affect millions of people in a fraction of the time and outside the normal scrutiny signed opinions can bring. And the legal rationale for the decisions can be as obtuse as that given in the Texas SB 8 case, or be absent altogether.

If this is problematic, a kind of judicial fiat without explanation, then the partisan nature of the shadow docket makes it even more so. In the past five years, the shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.

“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck said, “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.” The ban on evictions, a two-month order, was issued by the Center for Disease Control and Prevention. The pause was meant to cover parts of the United States that are experiencing what the CDC calls “substantial” and “high” spread of the corona virus. The court denied the extension so that millions of Americans are now subject to eviction in the middle of a continuing pandemic.

The rationale for this judicial fiat?

Congress should have passed a law requiring the eviction moratorium, the majority declared, even though the CDC clearly has the power written into the constitution to effect such a moratorium (https://www.law.cornell.edu/uscode/text/42/264) and did so effectively for nearly a year.

 “What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.”

As Adam Sewer has noted in The Atlantic, “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.”

For a freedom loving state, Texas has sent us one of the most draconian laws in U.S. history, designed in such a way that every citizen becomes a cop, complete with wiretap and a surveillance camera. All of this is occurring with the full knowledge and effective support of the majority of our Supreme Court. One wry commentator noted, “This is not Texas, this is East Germany. This is the Stasi.”

Meanwhile, through the shadow docket, our five conservative justices disingenuously plead judicial impotence: plugging their ears, binding their mouths and blinding their eyes.

In her scathing dissent, Sotomayor notes with frightening prescience that this goes far beyond a legalistic debate on the merits of abortion:

“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 of the rule of law.”

Ultimately, the partisan bias that underlies the shadow docket, the promiscuous use of unsigned and un-argued decisions, and the flagrant disregard for precedent is the greatest threat– and why everyone– even those who are opposed to abortion– should be concerned.

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