Durbin: Supreme Court's Shadow Docket Is Having Profound Consequences For Millions Of Americans

WASHINGTON – In a speech on the Senate floor, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today highlighted the Supreme Court’s growing use of its “shadow docket” to make dramatic changes to legal and constitutional rights without full briefing, deliberation, or transparency. Durbin pointed out that the Supreme Court’s conservative majority has increasingly used the shadow docket in recent years to issue substantive and controversial orders on cases with outcomes that appear ideologically driven.

“The Court’s conservative majority used the shadow docket to block the Biden Administration’s COVID eviction moratorium and to reinstate the Trump Administration’s cruel ‘remain in Mexico’ policy that unfortunately blocked families and children fleeing persecution. The Court’s majority also used the shadow docket last month to allow a Texas law, S.B. 8, to take effect – a law that effectively bans abortions after six weeks, directly violating the constitutional protections articulated by the Court half-a-century ago in Roe v. Wade. These and other shadow docket [orders] from the Court’s conservative justices are having profound consequences for millions of Americans,” Durbin said.

Durbin then responded to comments from Supreme Court Justice Samuel Alito, who criticized lawmakers, journalists, and scholars who have raised legitimate concerns about the Court’s use of the shadow docket.

“What he failed to mention, however, is that some of the strongest warnings about the Court’s changing use of the shadow docket have come not from politicians – like ourselves –  or journalists, but from Justice Alito’s own colleagues on the Supreme Court,” Durbin said. “Justice Sotomayor said of the Court’s shadow docket decision on the Texas law, ‘The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.’ [Justice Kagan] expressed alarm that the Court’s shadow docket decision making ‘every day becomes more unreasoned, inconsistent, and impossible to defend.’… Chief Justice Roberts noted that the Texas [law] has now created, ‘a model for action,’ in his words, showing how states can undermine constitutional rights by using that bounty hunter enforcement scheme that avoids judicial scrutiny thanks to the shadow docket.”

Durbin went on to highlight Congress’s role in overseeing the operations of the Supreme Court, including such responsibilities as providing advice and consent on nominations, setting the start date for the Court’s fall term, and passing legislation to govern the operations of the federal judiciary. Durbin said that the Senate Judiciary Committee will continue its work examining the use of the shadow docket. 

“Justice Alito may bristle at perceived criticism of the Court’s practices, but that does not mean the Court should be immune from scrutiny from the American people, a free press, or the legislative branch of government,” Durbin said. “We're going to continue this debate in [the] Judiciary Committee over the shadow docket. It's not politicizing the Court to do so. And Republicans have no standing to accuse Democrats of politicizing the Court, especially after their unprecedented, politically-motivated blockade of President Obama's Supreme Court nominee in 2016 and their haste to confirm a third Trump justice mere weeks before the 2020 election, both acts of raw political power.”

Video of Durbin’s floor speech is available here.

Audio of Durbin’s floor speech is available here.

Footage of Durbin’s floor speech is available here for TV Stations.