In the shadows: Supreme Court’s offstage moves may matter more

In a matter of hours last Thursday, the U.S. Supreme Court blocked a citizenship question from next year’s census and blocked federal courts from hearing challenges to extreme partisan gerrymandering.

Twenty-four hours later, as the reactions continued to pour in, the court made the quiet, but equally seismic, decision to hear a case about President Donald Trump’s decision to end an Obama-era program protecting hundreds of thousands of immigrants who were brought illegally to the United States as children.

That case concerning the termination of the Deferred Action for Childhood Arrivals (DACA) program, likely one of the biggest cases the court decides next year, was also one of the headline features of the court’s “shadow docket.”

Definitions of the shadow docket vary, but it essentially encompasses every decision the justices make that doesn’t receive a merits-based oral argument. These decisions can range from declining to hear a case to staying (or declining to stay) the execution of a death row inmate. Due in part to the fact the justices often debate and decide them behind closed doors, they rarely receive the widespread attention that major decisions do.

That hasn’t been quite the case this past term. While the partisan gerrymandering decision will have major long-term ramifications, as could the court’s unanimous decision to rein in civil asset forfeiture by law enforcement agencies, the past term has been relatively quiet on merits cases. Arguably the biggest story of the term was Justice Brett Kavanaugh’s contentious confirmation to replace the retired Justice Anthony Kennedy last fall.

A number of actions on the shadow docket, meanwhile, could have major implications for the next term – during a presidential election campaign – and beyond.

“This term has been slow on merit actions, but it has been an interesting term on the shadow docket,” says Josh Blackman, an associate professor at the South Texas College of Law. “We’ve had these small orders that have been quiet but fairly significant.”

Sidestepping abortion

Also last Friday, the Supreme Court declined to hear an abortion case, leaving in place a lower court ruling that struck down a 2016 Alabama law criminalizing a common type of abortion after 15 weeks of pregnancy.

Sidestepping abortion issues has been a feature of the court’s shadow docket this past term. The future of Roe v. Wade, the 1973 decision legalizing abortion nationwide, was front of mind after Justice Kennedy, an unpredictable vote on abortion, retired. The immediate repeal of the decision that some feared did not arrive, however.

First, the court in December declined to hear cases from Louisiana and Kansas over their attempts to block public funding for Planned Parenthood.

Two months later, Chief Justice John Roberts joined his four liberal colleagues in voting to stop a restrictive abortion law from going into effect in Louisiana while it moves through the courts. The law, which requires doctors who perform abortions to have admitting privileges at nearby hospitals, is almost identical to a Texas law the court struck down in 2016.

Since January, the court had also been considering whether to review a challenge to parts of a 2016 Indiana law. The case didn’t directly challenge abortion’s constitutionality, but in May the justices gave some insight into their thinking on the issue in a compromise decision.

The unsigned three-page opinion upheld one part of the law (new restrictions on the disposal of fetal remains) and struck down another (prohibiting women from getting abortions based on gender, race, or disability of the fetus). “The case, as litigated,” the opinion said, “does not implicate our cases applying the undue burden test to abortion regulations,” referring to the series of cases stemming from Roe.

In a 20-page solo concurrence, Justice Clarence Thomas implicated those cases anyway. With that concurrence, which linked abortion to late 19th century and early 20th century eugenics policies, Justice Thomas takes decades of legal debate over abortion in a “different direction,” says Steven Schwinn, a professor at John Marshall Law School in Chicago.

“So much of the abortion debate is about fetal personhood. Should a fetus be recognized as a person? If so, when does it become a person?” he adds. “What Justice Thomas is saying here is basically it doesn’t matter.”

“If it takes root with more than one justice,” he continues, “it’s going to allow the court to have a new conversation about abortion that may make it easier to find a five-justice majority to overturn Roe.”

There are no abortion cases on the court’s docket for next term yet, though the Louisiana law requiring admitting privileges could return. Conservative states are also passing new restrictive abortion laws, which could lead to legal challenges and circuit-court splits the justices need to resolve.

Some court watchers believe the justices have been avoiding the issue, with emotions still raw from the Kavanaugh confirmation. Some believe the conservative justices won’t take significant action on abortion while it could be turned into a campaign issue for Democrats in the 2020 elections. Either way, the erosion of abortion access since the Supreme Court first upheld the core of Roe in 1992 is expected to continue. In that decision, the court ruled that women had a constitutional right to an abortion but that states could impose limitations, so long as they did not constitute an “undue burden.”

“Planned Parenthood v. Casey [in 1992] gutted Roe. That was decades ago. That gutting is now being displayed in case after case,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

Life, death, and next term

The most important decisions made every year on the court’s shadow docket involve the death penalty, and the past term saw the justices spar in unusually personal terms on a series of capital cases.

The controversy began in early February, when the high court ruled in a 5-4 vote along ideological lines that Alabama could execute Domineque Hakim Ray, a Muslim man, without his imam at his side. The conservative majority said he waited too long to make the request, a decision Justice Elena Kagan described in her dissent as “profoundly wrong.”

In April the court rejected an appeal from another Alabama death row inmate, Christopher Lee Price, who said the state’s method of execution would cause him excruciating pain. In a brief, unsigned middle-of-the-night opinion – again 5-4 – the conservative majority said Mr. Price had missed the deadline to request a different method of execution. Justice Stephen Breyer, a longtime critic of the death penalty who had seen his request for the justices to discuss the decision the next morning denied, issued a blistering dissent joined by his liberal colleagues.

“To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate,” he wrote. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.” 

A month later Justice Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a rare after-the-fact opinion to “set the record straight.” Claims like Mr. Price’s threaten “to make last-minute stay applications the norm instead of the exception,” he wrote. “The proper response to this maneuvering is to deny meritless requests expeditiously.”

Those death penalty cases “saw a lot of the internal tensions spill out into the open,” says Professor Blackman.

Given the stakes, it’s more common to see this outpouring of emotion in death penalty cases, court watchers say. But some of the abortion cases saw similar jabs between justices. Justice Ruth Bader Ginsburg’s objection to Indiana mandating that fetal remains be buried “makes little sense,” Justice Thomas wrote in his concurrence. Justice Ginsburg shot back at Justice Thomas’ regular use of the word “mother” in his concurrence. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’” she wrote.

The five conservatives formed the most common five-vote majority this term, in eight of the court’s 20 decisions that were 5-4 or 5-3. (Justice Gorsuch joined the four liberals in four decisions, the most of any conservative justice.) Next term, in addition to the DACA case, the justices have chosen to hear potentially divisive cases on the Affordable Care Act and school choice.

“Some would expect, and hope, [the left-leaning justices] would be more vocal and more biting, and more declarative and clear, in why it is they disagree with the majority,” says Professor West-Faulcon.

“If they are on a court where few people are persuadable, which is what I believe, we’re probably going to be seeing it in the future.”