Justice Alito pushes back against media, lawmakers criticism of Supreme Court

Justice Samuel A. Alito Jr. criticized the media and politicians Thursday for propagating what he says is an inaccurate and damaging image of a Supreme Court that hands down controversial decisions in the dead of night.

Speaking at the University of Notre Dame about the court’s emergency orders — coined the “shadow docket” — the justice said there is nothing sinister about the court’s process, as has been suggested by the press and some lawmakers.

Senate Judiciary Committee Chairman Sen. Dick Durbin, Illinois Democrat, held a hearing on Capitol Hill Wednesday, saying it was necessary to study the court because the justices have issued controversial orders in a number of cases through the shadow docket — rulings on emergency motions handed down ahead of oral arguments in a case.

Justice Alito pushed back.

“My complaint concerns all the media and political talk about our sinister ‘shadow docket.’ The truth is there was nothing new or shadowy about the procedures we followed in those cases,” he told the audience at Notre Dame. “The term is memorable and suggestive. Journalists and some political figures have found it useful. It brings to mind something sneaky and dangerous.

Recently, the Supreme Court issued emergency orders blocking the Biden administration’s continued renewal of the evictions moratorium related to the coronavirus pandemic, ordered the prior administration’s remain in Mexico policy be reinstated, and also refused a request to block a Texas law banning abortions after a fetal heartbeat is detected.

The Texas law was weighed by the justices on an emergency basis earlier this month, without oral arguments, after abortion providers asked the justices to stop the law from taking effect on Sept. 1 while the 5th U.S. Circuit Court of Appeals weighed the matter on the merits. The high court declined to block the law while the litigation continues to play out in lower courts.

Justice Alito also said the portrayal by the press that the high court’s refusal to block the Texas abortion law earlier this month nullified Roe v. Wade, a 1973 ruling that granted abortion as a national right up until viability, was wrong.

“We did no such thing and we said that expressly in our order,” Justice Alito said.  

Mr. Durbin, during his hearing criticizing the high court, said the 6-3 conservative majority on the Supreme Court has more frequently used the shadow docket, noting that from 2001 to 2017, the high court issued eight shadow docket decisions but out of 36 requests from the Trump Justice Department, the high court granted 28 of those orders.

Justice Alito acknowledged it’s true the court has had to issue more rulings on emergency applications, but he said that is because the justices have been presented with more requests in recent years, citing the COVID-19 pandemic as part of the increase.

“There is absolutely nothing new about emergency applications,” he said.