The Supreme Court "Shadow Docket" and Abortion
I recently made a post elsewhere which referenced both the shadow docket and Texas's new [-]abomination[/-] abortion law, and received a response from a friend which seemed to me such a righteous rant that I wanted to share it. He suggested I tighten it up a bit (called it "rambling" , but I think it rambles to pretty good effect.
The term Shadow Docket was first coined by U of Chicago law professor William Baude in 2015 (although had been in use prior to that). From his seminal paper:
Supreme Court Term provides an occasion to look beyond the Courts merits cases to the Courts shadow docket a range of orders and summary decisions that defy its normal procedural regularity.
I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to personalize the Court.
Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Courts practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Courts selections are fair.
Sadly, we are now cursed with a majority of SCOTUS justices nominated by Republican presidents who didnt even win a majority of the votes (Bush [50,456,002] vs. Gore [50,999,897] yet Bush was able to nominate Roberts & Alito) and (Trump [62,984,828] vs. Clinton [65,853,514] yet Trump was able to nominate Gorsuch, Kavanaugh and Barrett)
Then confirmed by a majority of Senators representing a very SMALL MINORITY of Americans:
For example, L.A. County alone has a population of over 10 million. Thats more than the combined population of 10 entire states. Maine, New Hampshire, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota, Vermont, and Wyoming together have a total population of just over 9 million.
And the TWO Dakotas combined represent FEWER people than the island of Manhattan yet they get FOUR Senators .
And yet they overturn a procedure (abortion) that is supported by a significant majority of Americans.
WRT the Texas SB 8 abortion-prevention law ruling, it was deliberated on for LESS than three days, had NO oral arguments, and the majority opinion was UNSIGNED and LESS than ONE paragraph long!
If this tyranny by a minority of fascist right-wing republicans overturning rulings favored by a majority of Americans is allowed to continue, our nation will not be able to survive!
So if youre wondering how the Taliban will be governing in Afghanistan, take a look at Texas!
So, starting with the shadow docket, we have addressed abortion as it was adjudged on that docket, and gone from there to the hard fact that we are experiencing de fact minority rule to a shocking extent. And, yes, it is all connected.