SCOTUS’s ‘Shadow Docket’: Much Ado About Nothing by Those Who Should Know Better

Or, ‘What has immigration activism wrought?’

By Andrew R. Arthur on September 7, 2021

The New York Times ran a piece recently captioned “Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket’”. The “shadow docket” in question is a compendium of the Supreme Court’s orders. The article is full of hand-wringing by those who should know better about how the Supreme Court operates (and probably do), which they’d express except for the fact that they have their own activist agendas. And it was activism, specifically on immigration, that brought this all to a head.

As the Court’s website explains, most cases filed there “are disposed of summarily by unsigned orders. Such an order will, for example, deny a petition for certiorari without comment.” Plenty of people seek recourse there as a last resort, and the Court passes on most of those requests in orders it issues every Monday.

There are also "miscellaneous" orders that the Court can issue at any time. They are generally issued when one party or another seeks a stay of a lower court injunction, as occurred on August 24, when the Court denied a stay filed by the Biden administration of a blocking its termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

I discussed that one on August 26, and specifically what the Court held and didn’t hold.

Immigration is a hot-enough button topic, but it was the ever-contentious issue of abortion that has revved up the “shadow docket” crowd.

On September 1, the Court in Whole Women’s Health v. Jackson denied an application for injunctive relief or stay of a Texas law. That law allows private plaintiffs to file civil actions against physicians who perform abortions after fetal heartbeats have been detected (generally accepted as six weeks after conception, but even then there are disagreements).

Notably, that law does not permit the state, political subdivisions, district or county attorneys, or any government employee acting in an official capacity to file such a suit. Only private parties may do so.

Why was the Texas law written in this manner? Chief Justice Roberts, writing an opinion in dissent, explains: “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime”, or in other words, from being sued to block enforcement of that law.

There has been a lot of litigation over abortion restrictions ever since the Supreme Court issued its 1973 landmark abortion decision, Roe v. Wade. I could take you through the various decisions since, but basically, state legislatures issue laws restricting abortions, the Court limits those laws and clarifies its precedents, and the process begins anew.

In fact, the Court is scheduled to consider a Mississippi statute restricting abortions this term in Dobbs v. Jackson Women’s Health Organization.

I have not been to Austin in four years, and really had not even heard about the law before last week, but if I had to guess, the legislators there likely want to dissuade as many doctors from performing abortions after six weeks as possible before the courts start that review process.

Whether that is good or not depends on your position about abortion, but as the justices who denied that request explained, the challenge against it “presents complex and novel antecedent procedural questions”.

That’s because until somebody tries to actually file a civil action against a doctor in Texas, there is no defendant whom opponents of the law can name and sue, at least putatively. The courts can only decide “cases and controversies”, which means that you must sue somebody.

Here, none of the defendants are really defendants, because of the novel way the enforcement provision in that law is structured. Whether that structure works or is a good idea is an open question.

For example, the Wall Street Journal, which believes the Court issued the legally correct decision, describes the Texas legislature’s structuring of that law as “a slippery way to duck federal judicial review”, and fears that now, California could allow private citizens to sue over “hate speech” or New York could give them power to sue gun owners.

The Supreme Court's order is unsigned, as many are, so we don’t know who wrote it. We do know that Justices Roberts, Breyer, Sotomayor, and Kagan disagreed with the majority, because each issued dissents — the latter three complaining about “shadow dockets”. They should know better, and not just because such depictions cast doubt upon the Court as an institution.

The Supreme Court is simply responding to the decisions that they have been asked to make, which as relates to quick orders in cases, has especially been true lately. As one “expert” the Times quotes puts it:

Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

Respectfully, neither “side” has been “forced” to do anything. Plaintiffs file cases as an initial matter, and they can “leap from one preliminary injunction hearing to the next” if they want; nobody is forcing them to do it. They do it because judges recently have been granting their requests for so-called universal injunctions “with nationwide stakes”.

Or in the words of the Times, lower courts “appear increasingly willing to issue nationwide injunctions blocking government policies in politically contentious cases, often brought by plaintiffs who have deliberately filed suit in particularly liberal or conservative areas, depending on who is president.”

All of which brings me back to immigration. That’s because universal injunctions were all too often the tools that opponents of Donald Trump used to derail his immigration agenda, aided and abetted by an activist judiciary.

Curiously, I don’t remember the Times gnashing its teeth and rending its garments over this issue when Trump was president and the laws being enjoined involved one or another of his immigration policies.

The Times implicitly admits, however, that immigration cases drove much of the “rush from one preliminary injunction hearing to another”, because here are the examples that it offers for the phenomenon:

Judges in Texas issued injunctions blocking President Barack Obama’s policies, like shielding parents of American citizens from deportation. Judges in states like California did the same to block President Donald J. Trump’s policies, like banning travel by citizens of several Muslim countries. Last month, a judge in Texas required the Biden administration to reinstate a Trump-era program that forces asylum seekers at the southwestern border to remain in Mexico [MPP].

Did you notice the common denominator there? Each is an immigration case.

The first case was Texas v. United States, in which Judge Andrew Hanen in the U.S. District Court for the Southern District of Texas in 2015 blocked President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

In creating DAPA, the Obama administration failed to comply with the Administrative Procedure Act (APA), as both Judge Hanen and the Fifth Circuit held. That decision was affirmed by an evenly divided Supreme Court.

The Times makes it sound, however, like there were roving bands of anti-Obama plaintiffs chasing after numerous federal judges in the Lone Star State, who were themselves rushing to enjoin DAPA. But there was only one judge, and he was considering a very unique case.

The third case was the MPP case, which I have already discussed. The second one was Trump v. Hawaii, which involved travel restrictions that the Trump administration had imposed on nationals of certain countries (most with Muslim majorities).

I testified on those restrictions and courts’ responses to them at a House hearing tendentiously captioned “Oversight of the Trump Administration's Muslim Ban” in September 2019.

Iterations of those restrictions were subject to injunctions by federal courts in Washington state, Maryland, and Hawaii, the latter two upheld by the Fourth and Ninth Circuits, respectively (the Washington state case was not appealed, and the Trump administration issued new rules).

Those restrictions were based on criteria meticulously chosen after an exhaustive analysis by various federal agencies in response to concerns that the United States could not properly vet nationals of certain countries for criminal or terrorist ties. Several of those countries were known to be terrorist hot spots or had governments hostile to the United States.

You would not have known that by reading the lower court decisions (the Fourth Circuit’s was particularly dreadful), which focused a lot on comments that Trump had made on the campaign trail, or that he purportedly made in office. To its credit, the Ninth Circuit did not take that bait.

The Supreme Court issued an order staying the Ninth Circuit’s preliminary injunction of the latest iteration of those restrictions in December 2017. It eventually issued an opinion in that matter in June 2018, reversing the Ninth Circuit’s affirmation of the District of Hawaii’s injunction. It found that Trump was within his power in issuing those restrictions, and had provided a “legitimate national security interest” for them.

The Times, however, could have listed any number of other injunctions of Trump immigration policies (the third-country asylum rule, the public charge rule, the Flores regulations, etc.) up to and including the Supreme Court’s decision in DHS v. Regents. In that case, the Court affirmed a Ninth Circuit decision that had enjoined an attempt by the Trump administration to rescind the Deferred Action for Childhood Arrivals (DACA) program.

Regents technically rested on a D.C. District Court summary judgment grant, finding that recission violated the APA, but there were two outstanding injunctions at the time, and the Court’s decision concluded the matter of the legality of the Trump administration’s DACA rescission.

I am not going to question why the Times did not mention those other Trump-era injunctions, in many of which the Court had to issue orders on an expedited basis, but to read the article you would conclude that it was “one Obama case here, one Trump one there, and one Biden next”.

In reality, it was one Obama case, a whole slew of Trump ones, and an increasing number of suits against Biden. The Trump cases set the template for states adversely affected by illegal immigration to seek injunctions against Biden’s policies (many of which transgress the express language of the Immigration and Nationality Act). The decisions in most of the Biden cases rest, to one degree or another, on Regents.

In my opinion, the concerns expressed in that article, and by those who are openly wailing about the “shadow docket” (including Biden, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.), and House Judiciary Committee Chairman Jerry Nadler (D-N.Y.)), are firmly premised not in law or procedure, but politics.

Courts were great when they were blocking Trump, but not so much now that there is a 6-3 conservative majority on the Supreme Court that won’t block a law they don’t like, and that was specifically written to be next to impossible to enjoin.

Rather than limiting injunctive relief (which may be useful to block, say, President Ron DeSantis’s policies), Biden, Durbin, and Nadler will attempt to cow the Court into compliance with their will. Nadler in particular promises to “hold hearings to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket”. What could that mean?

In the Capitol, there is a plaque dedicated to the first telegraph message that inventor Samuel F.B. Morse sent from there to Baltimore, reading: “What hath God wrought?” When it comes to the so-called Supreme Court “shadow docket”, Biden, Durbin, and Nadler would be better served asking: “What has immigration activism wrought?”