Justice Alito Defends Court’s ‘Shadow Docket’ Decisions


Justice Samuel Alito on Thursday defended the Supreme Court’s decisions with emergency motions and blamed the mainstream media for “political talk about our sinister ‘shadow docket.'”

Alito, while speaking at the University of Notre Dame Law School, said recent court actions in major cases were not done hastily or given less attention than cases involving a full briefing and oral argument, CBS News reported.

In late August, the court reinstated the Trump-era “Remain in Mexico” immigration policy, allowed evictions paused by the coronavirus pandemic to resume, and refused to stop a Texas law severely limiting abortion from going into effect, CBS News said.

All three cases came to the court as emergency motions and were decided via the court’s “shadow docket” – a term used for cases decided quickly and without the court’s more typical process.

“Our decisions in these three emergency matters have been criticized by those who think we should have decided them the other way, and I have no trouble with fair criticism of the substance of those decisions,” Alito said.

“My complaint concerns all the media and political talk about our sinister ‘shadow docket.’ The truth of the matter is that there was nothing new or shadowy about the procedures we followed in those cases — it’s hard to see how we could handle most emergency matters any differently.”

Alito said the court has been wrongly cast as “a dangerous cabal … deciding important issues in a novel, secretive, improper way, in the middle of the night,” CNN reported.

The most recent emergency motion, regarding the Texas abortion law, was decided 5-4. The unsigned majority opinion in that case was issued around midnight and wasn’t even two full pages, CBS News said.

Alito said it was “false and inflammatory” for critics to claim that the conservatives in the Texas case effectively nullified the landmark Roe v. Wade decision that guaranteed a woman’s right to an abortion, CBS News reported.

The judge, who was nominated to the Supreme Court in 2005 by then-President George W. Bush, said there have been more emergency motions in recent years.

He attributed that to a flood of civil cases brought about by former President Donald Trump’s initiatives, and issues created by the coronavirus pandemic.

Alito said he wasn’t suggesting “that our current practice is perfect and that possible changes should not be considered,” but added recent criticism of the court “feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

The court currently consists of six judges nominated by Republican presidents and three justices nominated by Democrat presidents.