The Supreme Court overturned a constitutional right to healthcare, and effectively overturned Roe v Wade, by doing nothing. Using the shadow docket, Justice Alito allowed a draconian, dystopian misogynistic law to rob Texans of a basic constitutional right: bodily autonomy. The Texas law bans abortion when a heartbeat is detected, after about six weeks, long before most people know they’re pregnant, and establishes a truly dangerous bounty system that allows private citizens to sue anybody involved in procuring an abortion and rewards them with $10,000 and attorneys fees. There are no exceptions for rape or incest and the law will have little impact on the wealthy, who can simply fly to freer places. As always, this law will not stop abortions, it will only stop safe abortions.
This bounty system will choke the courts and drown abortion providers in lawsuits, which is the real point. If you thought evangelical churches were good at getting out the vote, wait until you see what havoc they wreak with this (preview). The bounties are nothing short of dystopian, more reminiscent of the morality police in Iran or the Taliban’s Ministry for the Propagation of Virtue and the Prevention of Vice. When paired with our politically divided country and Texas’s new unlicensed open carry law that also took effect today, it’s a recipe for violence, which has already plagued abortion providers. Now their supporters feel like they have a license to hunt (which is not what the law says) and also happen to believe God is on their side. What could possibly go wrong? It’s tempting to say that they learned nothing from the violence on January 6th, but that assumes that the lesson would be peaceful. They learned a different lesson.
The Constitution was subverted with judicial inaction. That’s how broken our courts are. This was only possible because the Fifth Circuit is overrun with Trump judges. Captured, infested, overwhelmed—packed. The Supreme Court was only able to gut Roe by sitting on its hands because the Fifth Circuit allowed a clearly unconstitutional law—a law that was deliberately unconstitutional—to go into effect. It overruled a lower court judge and cancelled judicial hearings on the law so that it could go into effect and rob Americans of their rights. This is what judicial activism looks like. It was a wanton disregard for the law and their sworn oath.
The Supreme Court can still rule on the Texas abortion law—or more properly, Justice Alito can. He runs the Fifth Circuit docket. That this law was ever in effect at all is a shameful abrogation of duty. This is a court that, in April, rushed to decide cases against public health measures meant to combat a lethal pandemic. There, the measures were set to expire in less than a week, but it hustled out a 9-paragraph opinion to strike down the public health measure in the name of a weaponized right to religious freedom. This is a court that wanted to decide these cases in this way.
The only solution—and I write this as a constitutional lawyer—is court-expansion and reform. Immediately. And that discussion must include the entire federal judiciary, not just the Supreme Court. Actually, the time for discussion is long past; we need to rebalance the courts yesterday. The shadow docket is the court’s abbreviated, emergency pipeline meant to stop that which can’t be undone, but not to decide substantive legal questions because there’s little briefing, no argument, and even less transparency than normal. In just the last year the Supreme Court has used the shadow docket to overturn Roe v. Wade, reinstitute the cruel “Remain in Mexico” policy, kill the eviction moratorium, and gut public health orders under the guise of “religious freedom.” It did all of that without full briefing, oral argument, or transparency.
This is not just about Roe. They’re coming for contraception, too, as we pointed out here months ago. But it’s even more than that, as the tumultuous shadow docket shows. The planet is on fire, the American West is burning, the Gulf Coast is drowning, Christian Nationalism and authoritarianism are rising at every level from local school boards to nation-states, a pandemic is torching the unvaccinated, the consummation of minority rule is around the corner, and we have the most regressive courts in this country in half a century. The progressive policies, plans, and solutions to these crises mean nothing because they cannot survive a challenge in a hostile federal judiciary. That’s where we are. This is bigger than a five-alarm fire. This is existential.
Congress needs to take action to fix our broken courts before it’s too late.
