Alito Helped Normalize Unreasoned Shadow Docket Orders. Now He’s Mad About One.

from the oh-so-now-you’re-concerned? dept

A couple weeks back, Supreme Court watcher Steve Vladeck pointed out a fascinating “tell” by Justice Samuel Alito in dealing with stays that he will issue on shadow docket requests. If he is prone to agree with the underlying claim, he’ll issue an unbounded stay on a lower court’s ruling. If he is inclined to disagree with the underlying ruling, he issues a temporary stay with a short deadline before the stay is lifted. He noticed this in particular with the stay that Alito issued in response to the Fifth Circuit’s ruling blocking prescriptions of the abortion drug mifepristone without an in-person visit (an attempt to block the pills from being sent to the various Southern states covered by the Fifth Circuit). In that case, Alito had a short deadline before the stay would be lifted, in contrast to how he tends to treat such stays when he agrees with the result:

First, Justice Alito waited almost 48 hours to act—a period during which there was quite a lot of chaos across the country among doctors, pharmacists, and patients over whether and to what extent they were bound by Friday’s Fifth Circuit decision. 48 hours may not seem like a long time, but for comparison, in November, Alito issued an administrative stay in the Texas redistricting case just 68 minutes after Texas’s application for emergency relief was docketed by the Supreme Court (both of which happened after hours on a Friday night).

Second, and speaking of the Texas case, Alito’s administrative stays in the mifepristone case had something that his administrative stay in the Texas case didn’t—a deadline (next Monday at 5 p.m. ET). This follows a much broader pattern—in which Alito issues indefinite administrative stays in cases in which he appears to be sympathetic to the applicants, but imposes deadlines on the stays in cases in which he doesn’t. Before Monday, the last nine administrative stays in which Alito imposed deadlines were all cases in which at least one of the applicants had been the Biden administration. In contrast, Alito imposed no deadline in the Texas redistricting case; a potentially significant non-delegation case from 2024; and several other cases with … less … of an ideological valence.

To be sure, Alito isn’t the only justice to ever put a deadline on an administrative stay; Justices Gorsuch and Jackson have also each done it exactly once. And although the deadlines tend to create unnecessary tension and stress for both the parties and the Supreme Court’s press corps (who worry about what will happen if the deadline comes and goes with no action—which appeared to happen in the Texas SB4 immigration case in March 2024), they’re not especially significant beyond that. But it certainly seems like a petty way to treat parties differently based upon what you think of their claims.

Then, despite that short deadline (which, to be fair, was extended three days), the Supreme Court waited until 26 minutes past the deadline to issue its unexplained shadow docket ruling keeping the stay in place until after the rest of the proceedings play out (like a cert petition to the Supreme Court, and then a more complete ruling on the merits).

As a site that regularly calls out and complains about shadow docket rulings, and in particular unexplained shadow docket rulings, it’s unfortunate that the majority didn’t explain their reasoning — and equally unfortunate that Alito forced a rushed decision in the first place.

I know that the justices hate the term “shadow docket,” preferring either the “emergency” docket or the “interim” docket, but if they’re going to call it that they should really only use it for issues that are emergencies or for interim relief — the very limited number of scenarios where real unmitigated damage could be done in the interim until a thorough review has been conducted. But that’s just not the case most of the time. Relatedly, those rulings should have extremely narrow and limited precedential power. In theory that was the case until last year when some of the Justices (most notably, Justice Gorsuch) started whining about judges following actual full merits rulings as precedent, rather than magically applying unreasoned shadow docket decisions.

And while there is plenty of analysis elsewhere of the impact of last week’s late night ruling, I wanted to highlight the sheer hypocrisy* of Alito whining about the Justices not giving a reason for their stay. In his own dissent (which is likely why the ruling came out late, coming after Alito’s own needlessly imposed deadline), he starts off by complaining about the lack of any reasoning:

The Court’s unreasoned order granting stays in this case is remarkable.

Given how often Alito has signed onto other “unreasoned” shadow docket rulings when he agreed with them, it’s worth calling out the brazenness of complaining about the very practice he’s helped normalize.

* I use the word “hypocrisy” here deliberately for two reasons. First, because it is incredibly hypocritical. Second, because Alito’s ruling had an embarrassing typo, in which he referred to the litigation involving the Alliance for Hippocratic Medicine as the Alliance for Hypocritic Medicine. This typo was one of many that the Supreme Court had to issue corrections on the filing not once, but twice, before finally fixing this particular typo.

And while the Wall Street Journal can pretend that shadow docket critics don’t care about unexplained shadow docket rulings when they go in their favor, that’s bullshit. Unexplained SCOTUS rulings are bad no matter what. In an ideal world, Alito wouldn’t have imposed an artificially short deadline on the administrative stay, and the court would have given some explanation for its decision — rather than leaving us to read tea leaves from Alito and Thomas’s odd dissents.

For what it’s worth, Vladeck also does an excellent job pointing out the fundamental inanity and contradictions of both Alito and Thomas’s dissents in this case.

First, Justice Thomas went full Comstock Act, arguing that all dispensation of mifepristone through the mail is illegal—never mind that the Department of Justice took a different position as recently as 2022. Putting aside the (well-documented) weaknesses of the Comstock Act arguments, Justice Thomas is simply wrong to argue that parties “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.” As the Trump cases have regularly illustrated, a party can be irreparably harmed (at least in view of a majority of the current Court—including Justice Thomas) by a court order that makes it more difficult for them to break the law. Justice Thomas also apparently saw no problem with the Fifth Circuit issuing nationwide relief under the APA—even though he joined a 2023 concurrence by Justice Gorsuch arguing that such universal vacaturs were likely not authorized by the APA. Needless to say, that inconsistency was … not addressed.

And then there’s Justice Alito’s dissent. Alito opened by claiming that “[w]hat is at stake is the perpetration of a scheme to undermine our decision in Dobbs.” Of course, Dobbs insisted that it was returning the question of abortion to the states, whereas the Fifth Circuit ruling would’ve required in-person doctor visits on a nationwide basis. In any event, though, the FDA first got rid of the in-person doctor-visit requirement in 2021—before Dobbs was decided. So the “scheme to undermine Dobbs” began … before Dobbs.

Advertisement

There’s more at the link.

But at a time when the Supreme Court keeps telling us we shouldn’t believe that they make decisions on partisan grounds, it sure would help if they actually stopped doing things differently depending on the partisan valence of each case — something Alito seems to do quite regularly.

It really seems like we need serious reform of the Supreme Court. I’ve already argued that we should increase the number of Justices to 100 or more (to the point where no single Justice matters so much anymore), but any serious reform needs to contend with the abuses of the shadow docket, and making sure that it really is only used for emergency situations where an interim ruling is necessary for maintaining the status quo until a full briefing on the merits can occur.

Justice Alito appears to want to have two different sets of rules, depending on his feelings towards the parties. That’s the opposite of supposedly blind justice. If the court fears that its rulings are seen as illegitimate, then it should start by making sure Alito stops treating parties very differently depending on how aligned they are with his personal ideological beliefs.

Filed Under: 5th circuit, abortion, clarence thomas, louisiana, mifepristone, samuel alito, shadow docket, supreme court