WASHINGTON—Senators on the Judiciary Committee could not reach consensus during Wednesday’s hearing on whether the Supreme Court’s use of the shadow docket in a Texas abortion rights case was either vastly unprecedented or just an ordinary procedure.“Constitutional rights for millions of Americans should not be stripped away in the dark of night even in the Supreme Court. That is exactly what happened,” said Chairman Dick Durbin, D-Ill.

The term “shadow docket” was coined in 2015 by professor William Baude to describe the cases the high court decides outside the traditional term, which customarily runs from the first Monday in October through late June. When accepting a case during the regular term, the court hears oral arguments and then releases a signed opinion. 

In contrast, the shadow docket has typically applied to cases, including last-minute death penalty appeals, that arise outside the normal term and require emergency relief. Oral arguments are not held and decisions, which do require explanation, are typically unsigned and can be handed down at any time.  

In the past three months, the shadow docket has also been used to weigh in on disputes that have significant public impact, including overturning President Biden’s eviction moratorium and reinstating a Trump era immigration policy. The court also relied on the shadow docket, to the surprise of long-time observers and legal experts, when it upheld a controversial Texas law enforcing the ban on abortions after six weeks.

“The Supreme Court has now shown that it’s willing to allow even facially unconstitutional laws to take effect when the laws align with certain ideological preferences,” Durbin said. 

The hearing focused primarily on the Texas law with Durbin attacking a provision which stipulates that individual citizens are empowered to enforce the measure. 

Durbin said that Texas lawmakers’ “private vigilante enforcement scheme is unprecedented” and that they “paired it with a clearly unconstitutional abortion ban in the hopes it would shield the law from judicial review on the basis of jurisdictional questions.” The Supreme Court’s ruling was reliant on the argument that the jurisdiction was unclear. 

Republican committee members repeatedly argued that the court’s decision and the use of the shadow docket was not unusual. 

Sen. Chuck Grassley, R-Iowa, said the shadow docket should be used so “the court can provide relief in emergencies.” In this case, the Supreme Court simply “declined to intervene on an exceedingly expedited basis, while reserving judgment on complex legal issues,” said Grassley.  

Legal experts had mixed opinions on the use of the shadow docket in this case. 

“The question was really whether the court had jurisdiction and [this case] gave serious questions that it didn’t, so it declined to step in,” said law professor Jennifer Mascott, who contended it was a “typical” decision that did not break precedent. 

But law professor Stephen Vladeck disagreed, arguing that the court has overstepped, weighing in on matters of consequence without allowing for hearings or providing a detailed rationale for its decisions.  

“More and more of these rulings are directly and permanently shaping state and federal policies and not just narrowly and temporarily adjusting the status quo.”