As we were all focused on Trump’s attempted coup or, more accurately, autogolpe, the newly constructed conservative Supreme Court continued to abuse the shadow docket, usually unsigned summary orders, to further enact what look more like partisan political decisions than actual interpretations of law. As Steve Vladeck notes, the Court has used the shadow docket to clear “the way for the president to proceed with many of his most controversial policies without a final determination of their legality”.
Mifepristone is a drug used in medication abortions and it is the only one of the 20,000 FDA-approved drugs that requires that the patient not only pick up the drug in-person at a medical facility but also sign a disclosure form. Because of the pandemic, the FDA had waived the requirement for in-person pick-up of other drugs including certain controlled substances, allowing delivery instead, but did not include mifepristone on that list. A number of groups sued the FDA, challenging its unique treatment not only in comparison to other FDA-approved drugs but also with regard to its exclusion in the relaxation the in-person requirement due to the pandemic. A district court agreed with the plaintiffs, deciding the FDA was unconstitutionally limiting the rights of women to receive abortions even without the existence of a pandemic, while also citing not only the dangers of COVID but also the extensive evidence that mifepristone had a similar health risk as taking aspirin or ibuprofen.
The Trump administration asked the Supreme Court to stay the district court’s decision and the Supreme Court granted that stay in yet another unsigned opinion, adding to unprecedented numbers of stay requests from the Trump administration that the Court has granted. This time, at least, Justice Roberts attached his opinion to the decision, claiming the case was about giving deference to authorities in how they handle the pandemic. That deference seems rather remarkable considering that the Court had invalidated COVID restrictions on certain gatherings and forced Wisconsin primary voters to risk their lives by voting in person rather than extend mail-in voting during the state’s primary. Roberts’ deference to authority regarding public health stands in remarkable contrast to the district court’s decision that focused on the undue burden the in-person requirement creates.
In her usual withering dissent, Justice Sotomayor eviscerated not only Roberts’ opinion but the unnamed majority who granted the stay as well. She writes, “A stay of a district court’s injunction is ‘extraordinary’” and cited earlier precedent which states, “An applicant for a stay must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal”. It is hard to see what kind of irreparable harm the government would suffer from allowing a patient to have the equivalent of aspirin delivered as opposing to having the patient pick it up in-person.
As Sotomayor points out, the actual irreparable harm is endured by the patient who wants the medical abortion. The pandemic has meant that some of the medical facilities where patients could pick up mifepristone have closed while other facilities have had to reduce the number of patients they can see on a daily basis by significant percentages. Considering that mifepristone can only be used in the first ten weeks of pregnancy and most women don’t even realize they are pregnant until over 5 weeks into pregnancy, “A woman seeking a medication abortion may therefore be left with fewer than three weeks to find an accessible clinic that will provide mifepristone, schedule and receive the required counseling, and make an appointment to collect the medication in person, all while trying to determine the safest way to travel to the clinic and perhaps wondering whether she will bring COVID-19 back home with her. What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID-19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response”.
Finally, Sotomayor dispenses with Roberts’ deference to authorities in charge of public health. She writes, “The Government has not submitted a single declaration from an FDA or HHS official explaining why the Government believes women must continue to pick up mifepristone in person, even though it has exempted many other drugs from such a requirement given the health risks of COVID-19. There simply is no reasoned decision here to which this Court can defer”.
What is really going on in this case is that the conservatives on the Court have already decided that extreme limitations, perhaps even a ban, on abortion access are now constitutional and the undue burden test for abortion is no longer valid. While that specific decision will probably be handed down later in this term, the conservative justices are using that new standard when dispensing with cases on the shadow docket. As Leah Litman writes, “The court’s conservatives may have instead arrived at their own independent conclusion that the in-person requirement is constitutional, which would signal that the court has significantly watered down of the legal test governing abortion restrictions behind the scenes. If requiring women to go to medical facilities during a pandemic in order to obtain a drug that has comparable risks to aspirin does not constitute an undue burden, then many other laws that restrict abortion would be constitutional too”.
While the abuse of the shadow docket and the unprecedented willingness to grant stays to the Trump administration is a clear erosion of precedent, the Court created a new and even more extreme use of the shadow docket when it came to ensuring Dustin Higgs would be executed before Biden became President and could once again institute a moratorium on federal executions. Probably for the first time in modern American judicial history, the Court used the shadow docket to not just grant or lift a stay but instead to issue a summary ruling on the merits of a case even though the court of appeals hadn’t yet done so. And the majority provided no rationale for doing so.
Federal law requires the federal death sentence be administered in accordance with the death penalty protocols established by the state in which the sentence was imposed. In Higgs’ case, this was Maryland. But Maryland has abolished the death penalty therefore there was no “manner prescribed” for Higgs’ execution. Because of that a district court delayed the execution. The Trump administration appealed that decision to the appeals court which upheld the district court’s decision. The administration then went to the Supreme Court for relief. As Mark Joseph Stern writes, “In a stunning move, the court…issued a summary decision on the merits of the case, short-circuiting the traditional appeals process. The court directed the government to kill Higgs using the execution protocol in Indiana, where he was imprisoned. It did not explain its reasoning. What the conservative justices did in this case is beyond extraordinary. Under almost all circumstances, the Supreme Court waits for an appeals court to issue a judgment before taking action. On those rare occasions when SCOTUS lets a litigant leapfrog over the appeals court, it typically issues a ‘stay pending appeal,’ setting aside a stay while the appeals court mulls the case. Here, however, the Supreme Court simply issued a summary decision, without oral arguments or proper briefing”.
Once again, Sotomayor wrote a withering dissent, this time joined by Kagan and Breyer, focusing on the lack of scrutiny the Court has given to the revived and expedited implementation of federal executions which has now killed “more than three times as many people in the last six months than it had in the previous six decades”. Sotomayor writes, “Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale. This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not”.
As Stern notes, with this decision, “The Supreme Court’s conservative justices have weaponized the shadow docket”. They are usurping the powers of the lower courts and to what end. Stern again, “It’s easy to see why the conservatives didn’t explain their ruling: The only justification for such an extraordinary maneuver is the fact that Joe Biden will soon restore the moratorium on federal executions. If Higgs’ execution were delayed much longer, it would not occur at all. This fundamentally political consideration is the only reason for the Supreme Court to short-circuit the appeals process. The executive branch embarked upon a mad dash to kill death row inmates before Biden’s inauguration. And the Supreme Court played along, changing the rules to help the Trump administration squeeze in more executions before Biden takes office”. It is remarkable to see the speed at which the Court moved in these death penalty cases when compared to the months’ long wait for a decision on the House of Representatives’ subpoenas for Trump financial documents and witnesses for impeachment.
If the Court is worried about its legitimacy, which it should be, cases like these and the continued abuse of the shadow docket will only fuel increased belief that the conservative Justices are acting politically. The current Court is clearly out of step with the mainstream of American opinion on many of the culture war issues and it has not just been missing in action in defending our democracy from an authoritarian attack but its decisions on electoral matters and its deference to the Trump administration has essentially weaponized that attack. The conservative Justices have shown that they believe in precedent only when it supports the decision they want to reach and now their usurpation of the power of the lower courts through the use of the shadow docket illustrates their disdain for the very judicial system they supposedly represent. Their solemn blather about “balls and strikes”, “originalism”, and “textualism” belies the fact that they are extremist radicals, much like the party that is responsible for them being on the Court.
Originally published at https://thesoundings.com on January 20, 2021.