Presidential Commission on the Supreme Court of the United States
- ↑ In Whole Woman’s Health, for example, abortion providers and other groups challenging the Texas law applied to the Court for emergency relief after a federal appeals court issued an administrative stay halting proceedings in the district court. Challengers asked the Court to issue injunctive relief or, in the alternative, to lift the appellate court’s stay. Given that the law was set to go into effect the following day, the Court faced great pressure to act quickly—and its decision could hardly have failed to be important and controversial.
- ↑ See Alito, “The Emergency Docket,” supra note 10. See also Mark Rienzi, The Supreme Court’s “Shadow” Docket—A Response to Professor Vladeck, Nat’l Rev. (Mar. 16, 2021, 1:30 PM), https://www.nationalreview.com/bench-memos/the-supreme-courts-shadow-docket-a-response-to-professor-vladeck.
- ↑ See, e.g., Vladeck Testimony, supra note 8, at 4–6 (focusing on evidence of an increase in “cases in which the Justices are using the shadow docket to change the status quo—where the Court’s summary action disrupts what was previously true under rulings by lower courts”); Id. at 14–15 (critiquing the Court’s apparent readiness to intervene on the ground that “when any government action is enjoined by a lower court, the government is irreparably harmed, and the equities weigh in favor of emergency relief no matter the consequences to those who might be injured by allowing the policy to remain in effect,” as well as the Court’s apparent willingness to grant emergency relief to protect “newly minted rights”).
- ↑ Id. at 6 (describing the rise of “cases in which the Justices are using the shadow docket to change the status quo” and arguing that “part of the significance of the shadow docket of late has been in how often the Justices are using it to disrupt the state of affairs until a case reaches the Court on the merits (which, increasingly, may be never)”).
- ↑ See, e.g., Rienzi, The Supreme Court’s “Shadow” Docket, supra note 30. For a response, see Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket, Hearing Before the Senate Committee on the Judiciary 20–21 (Sept. 29, 2021) (written testimony of Stephen I. Vladeck, University of Texas School of Law), https://www.judiciary.senate.gov/imo/media/doc/Vladeck%20testimony1.pdf [hereinafter Vladeck Senate Testimony]. See also Charlie Savage, Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket,’ N.Y. Times (Sept. 2, 2021) (“‘I think the real concern [of critics] is that the court has been reaching out aggressively in some of the immigration and Covid cases, and [in Whole Woman’s Health] it is not. … And why is it when it’s a Covid restriction in church service, the court rushes in, in the middle of the night, to stop the government, but when it’s an anti-abortion law, the court lets it go?’” (quoting Professor Will Baude)).
- ↑ Bray Testimony, supra note 7, at 9.
- ↑ Compare Presidential Commission on the Supreme Court of the United States 5:19:47 (June 30, 2021) (oral testimony of Samuel L. Bray) [hereinafter Bray Oral Testimony], https://www.whitehouse.gov/pcscotus/public-meetings/june-30-2021 (defining “status quo” as used in the testimony of Samuel L. Bray) with Id. at 50:20:12 (defining “status quo” as used in the testimony of Stephen I. Vladeck).
- ↑ Bray Testimony, supra note 7, at 9 (“I recognize that these judgments inevitably have a normative tinge. I know that it is a choice to see the national injunction as the disruptive force, not the executive policy or rule that prompted the national injunction. I know it is a choice to see the state public health measures as the disruptive force, not the worship services that ran up against the public health measures.”).
- ↑ See, e.g., Vladeck Testimony, supra note 8, at 4 (describing “orders that … change the status quo” as those that “stay[] a lower court decision and/or mandate pending appeal,” “vacat[e] a stay … imposed by a lower court,” “grant[] an emergency writ of injunction pending appeal,” or “vacat[e] a lower court’s grant of an emergency injunction”).
- ↑ See, e.g., Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam) (issuing a writ of injunction against enforcement of California’s pandemic-based limits on in-home gatherings); Merrill v. People First of Ala., 141 S. Ct. 190 (2020) (staying a lower court order lifting a ban on Alabama counties from offering curbside voting in light of the COVID-19 pandemic); Barnes v. Ahlman, 140 S. Ct. 2620 (2020) (mem.) (staying a lower court preliminary injunction requiring implementation of safety measures to protect inmates during the COVID-19 pandemic).
- ↑ See, e.g., Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., No. 21A23, slip op. at 8 (U.S. Aug. 26, 2021) (Breyer, J., dissenting) (“We should not set aside the CDC’s eviction moratorium in this summary
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