Alito, Texas Abortion and the Shadow Docket: Déjà vu All Over Again? | Austin... - 0 views
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On October 8, the Fifth Circuit summarily reinstated Texas’s “heartbeat” anti-abortion law, overturning district court Judge Robert Pitman’s careful, 113-page October 6 decision enjoining the onerous law. And so, the Supreme Court may soon have an opportunity to weigh in again, via its “emergency docket,” on the most restrictive abortion law in the nation. It authorizes “bounty-hunters” to inform on anyone helping a woman protect her right to control her body.
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. The Court’s legitimacy is bound up with its ability to convince litigants and citizens alike that its rulings are the result of a careful, deliberative, and fair process. Its increasing resort to the emergency docket, dubbed the “shadow docket” in 2015 by law school professor William Baude, calls those virtues into question.
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Critics rightly say that the Court’s use of emergency orders, issued without oral argument and full legal briefing, to decide issues with enormous substantive effect on the nation, may help its conservative members advance their agenda. But reconciling this development and the requirements of judicial legitimacy is no easy task.
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“Journalists may think we can dash off an opinion the way they dash off articles,” Alito snarked. “You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when . . . time is not of the essence.”
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That begs the question of why the Court is now deciding more frequently that their EMT services are needed.
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In any event, Alito’s “blame the messenger” ignores what behavior psychologists have known for decades: When a message receives a favorable response, the messenger returns for more.
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Alito rejected critics’ claims that emergency orders suffer from opaqueness that full court opinions help avoid: “[F]air-minded readers can easily understand the grounds for our rulings.”
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What he didn’t address was the fact that the three orders he discussed all favored conservative litigants, a consistency that could lead “fair minded observers” to question whether the Court was impartially “calling balls and strikes.” In July, a Reuters analysis concluded that the Court’s emergency orders consistently favored religious groups and Trump’s administration.
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Findings like that may have contributed to Justice Amy Coney Barrett publicly declaring in September that “we’re not a bunch of partisan hacks.” (Reminiscent of Richard Nixon’s Watergate-era speech in which he said, “I am not a crook.”)
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That bromide does not mean, however, that judges should seek the limelight to offer their perspectives on Court business or doctrine. That practice carries enormous risk of destroying the public’s trust in their impartiality and nonpartisanship.