Shadow dockets: how the U.S. high court pulls our strings from the darkness

Decisions are being made without public transparency, and that is an issue that needs to be addressed.

The Supreme Court recently approved a law that prohibits abortion in Texas six weeks after cardiac activity is detected in pregnant women, and it is one of the numerous emergency orders granted during the pandemic. The law passed with a 5-4 vote, and only three days were spent on the matter.

First of all, shadow dockets are emergency orders issued by the Supreme Court that are not on their main “docket of arguments,” meaning that oral arguments are not able to be made by participating parties before the Court reaches a consensus. Typically, cases are heard based on the “merits docket” and involve long, complex processes of navigating through full briefings, oral arguments and signed opinions.

However, the newly-instituted abortion order is in direct violation of the constitutional rights granted to women and deals a heavy blow to the foundations that Roe v. Wade previously established. If the contents of the Constitution were dutifully enforced, such an egregious mandate would not have been made.

Yet, the judicial branch should not be the one to blame: shadow dockets— the ”so-called” emergency proceedings where key rulings are made to slip under the nose of the public—are the true oppressors of this democracy’s foundational rubric.

A term that has only recently reappeared into public consciousness, “shadow dockets” were not something frequently discussed until their overuse by the Trump administration during the pandemic. Though their establishment in the system of law sparked controversy from the very beginning, the new mandate encroaches upon a woman’s freedom to choose and serves as a rude awakening to the citizens of this country: how could something be passed in disjunction to the high court’s typical “procedural regularity” through the exercise of practice as vague and as obscure as shadow dockets?

The unmerited underpinning of the U.S. court work against the systemic norm — shadow dockets essentially serve as the deceivers of the public as nothing is disclosed when decisions are made. Without the litigation process, orders are passed with little to no reasoning as everything is simply slid under the table. The lack of public transparency is exceptionally problematic—it is in each citizens’ right to understand why things are how they are, and shadow dockets are just excuses that the Supreme Court can use to impose questionable laws without any explanation.

Throughout the course of the pandemic, shadow dockets issued by the Supreme Court favored Trump and religious organizations, as they were primarily used to grant relief to Christian and Jewish groups in addition to pushing the previous president’s own controversial agenda.

Many applications for shadow dockets were rejected, and the lucky few that were accepted corresponded with the majority conservative Supreme Court’s ideals. This undoubtedly topples the belief that shadow dockets are used for imperative issues that require immediate intervention, as it clearly underlines just where the government’s priorities stand.

In Aug. 2020, a Californian mandate requiring hand sanitizer stations in prisons and for inmates to socially distance to reduce the spread of COVID-19 was overturned by the Supreme Court. With the COVID-19 pandemic raging steadily in the background, it’s understandable to expect that the governing body would do everything in its power to save the country from the turmoil. Yet, the very officials that were tasked with doing so did the opposite, ruling against the lower courts’ efforts to maintain clean prison environments and turning a blind eye to the millions of inmates suffering without protection from the deadly virus. The court’s previous failure to ease tensions caused by the pandemic perfectly aligns with their current failure to address the needs of the people— their mistakes do not cease to pile over one another and instead continue to add crushing weight to the foundational rubric of our democracy.

Nevertheless, America’s recovery from the pandemic is not the only thing currently impacted by the existence of shadow dockets. For years, public unrest has been brewing around the abortion crisis in Texas due to the state’s abnormally large religious population.

Christian institutions littering the state have always advocated against abortion. In the recent abortion law, the Establishment Clause of the First Amendment bars the government from promoting religious ideals in any way so as to preserve the balance of religious presence in the country. Yet, if there were no bias in the high court, there would be no substantial reason for the stripping of women’s rights. Though many questionable decisions were made by the judicial branch in the past, the new anti-abortion laws in Texas mark the last straw; this time, the breach in our constitutional rights is too prominent for the predicament to be ignored.

By banning abortion, lives are left unsaved and justice is left unserved. In fact, it violates the Due Process Clause of the Fourteenth Amendment that reinforces a pregnant woman’s freedom to choose whether or not to have an abortion. For the contents of the U.S. Constitution to be simply breached and dismissed by a mere shadow docket demonstrates just how weak the chains holding this country together are.

Unsurprisingly, the people in power still refuse to see the issue in all its glory: in an outrageous effort, Texas governor Greg Abbott vowed to “eliminate all rapists” in order to uphold the ban on abortion. Instead of recognizing their ignorance and owning up to the errors of their ways, uninformed individuals are continuously attempting to dictate what women do with their bodies.

No matter what, giving up the battle when it has already been fought halfway is never the option. Through these unparalleled times, the last thing America needs is another political spectacle to take place. The introduction of shadow dockets in 2015 led to a split in our society like no other and they need to be eradicated to prevent further abuse of power. If we can see past the deception, past the detritus and focus on what is truly in the values of our constitutional democracy, the likelihood of an America with a righteous judiciary would not be so unfathomable.

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