Justice Alito Takes Issue With the 'Sinister' Term 'Shadow Docket'

Justice blasts 'shadow docket' criticism in speech at Notre Dame
By Arden Dier,  Newser Staff
Posted Oct 1, 2021 10:05 AM CDT
Is SCOTUS Acting 'Sneaky'? Justice Alito Responds
Supreme Court Justice Samuel Alito addresses the audience during "The Emergency Docket" lecture Thursday at the University of Notre Dame Law School.   (Michael Caterina /South Bend Tribune via AP)

Justice Samuel Alito on Thursday lashed out at the suggestion that there's "something sneaky and dangerous" about the Supreme Court's emergency docket, through which it allowed Texas' restrictive abortion law to take effect. In a speech at the University of Notre Dame days before the start of the new Supreme Court term, Alito took issue with "the catchy and sinister term 'shadow docket,'" saying it had 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," per the Washington Post.

Alito blamed the media and political sphere for this portrayal that "feeds unprecedented efforts to intimidate the court or damage it as an independent institution" but made no note of the fact that Justice Elena Kagan also criticized the "shadow docket" in dissenting in the Texas case. The majority opinion to greenlight "Texas's patently unconstitutional law banning most abortions" is "emblematic of too much of this Court's shadow docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend," she wrote, per CNN.

Though almost all abortions are now banned in Texas, Alito said it was "false and inflammatory" to claim the court nullified Roe v. Wade. "We did no such thing. And we said that expressly in our order," he said. He added the court resorted to acting quickly on time-sensitive cases without extensive briefings more often recently due in part to the pandemic and the Trump administration's filing of 41 emergency relief requests, compared to eight under the two previous administrations, per NPR. This doesn't necessarily mean the court is "deciding important issues in a novel, secretive improper way," Alito said, claiming critics are simply unhappy with the decisions made. (More US Supreme Court stories.)

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