Welcome back, Deadline: Legal Newsletter readers. Waiting is a big part of Supreme Court reporting. The court is notoriously opaque about what it’s doing, when it’s doing it and, sometimes, due to its lack of explanations for significant rulings, why it’s doing it. But let’s put a pin in that last “shadow docket” point for now. It’ll make a surprise cameo later.
We were in familiar waiting territory on Thursday afternoon, as the clock ticked toward 5 p.m. ET. That was the latest arbitrary deadline that Justice Samuel Alito had set in the emergency litigation over nationwide mail access to mifepristone. If that deadline were to pass without word from the high court, then an unprecedented lower court order from the 5th Circuit halting such access would take effect. A company that makes the abortion pill warned that the order would unleash “chaos for patients, providers, pharmacies, and the drug-regulatory system.”
Five o’clock came and went. No word from the court. It wasn’t until closer to 5:30 that the justices decided — over dissents from Alito and Justice Clarence Thomas — to maintain mifepristone access while the litigation continues in the lower court. It could come back to the justices again, but the status quo access stands for now.
It’s unclear what real effect the time gap had, if any, when the 5th Circuit order was technically live for about a half hour. But what was clear, in those moments approaching the deadline and increasingly as the postdeadline minutes mounted before the court finally ruled, is that this is no way to run a modern legal system. Due to the court’s outsize influence on American life writ large, it’s no way to run a country.
Instead of imposing an arbitrary deadline that caused needless confusion and effectively handed an unearned win to the losing party (Louisiana), albeit a very brief and possibly meaningless one in retrospect, Alito could have simply halted the circuit order indefinitely until the full high court was ready to act. He had to have a sense that his dissenting view would be in the minority even on this court, so an indefinite stay pending the full court’s review would have done no harm. The arbitrary deadline, on the other hand, risked serious confusion at the very least.
Turning to the dissents, Alito said all this stemmed from “the perpetration of a scheme to undermine our decision in Dobbs,” the 2022 opinion he authored that overturned federal abortion rights. Thomas wrote his own dissent, explaining why, in his view, mifepristone manufacturers not only failed to make a case for the emergency relief that the majority granted but also were, in fact, profiting from a “criminal enterprise.”
What did Alito and Thomas’ colleagues in the majority think? Besides the obvious fact that none of the other seven justices joined either dissent, we don’t have much to go on. In the typical fashion of the shadow docket orders that Alito and Thomas have joined over dissents from Democratic-appointed justices, the majority’s unsigned order gave no reasoning. It only said that the 5th Circuit’s order would be halted pending a full ruling in that appeals court and whatever the Supreme Court decides on any further appeal back to the justices.
Alito took a swipe at that lack of explanation in the very first sentence of his dissent. “The Court’s unreasoned order granting stays in this case is remarkable,” he wrote. Putting aside the merits of the argument that followed, it’s “remarkable,” to use his word, that he would think to call out the “unreasoned” nature of the order — an order that, it bears emphasizing, maintained the status quo rather than upend it and unleash the chaos that the dissenters would have risked had their view prevailed.
It’s remarkable not only because of the hypocrisy it required, given Alito’s past joining of such majority orders and his public defense of the shadow docket (or “emergency docket” or “interim docket” or whatever term one prefers for these fast-track orders). It’s even more remarkable because, moments after the mifepristone order came down on Thursday, the GOP-appointed majority issued its latest unexplained order lifting a lower court’s stay, allowing Texas to execute Edward Busby that night for the 2004 murder of Laura Crane, despite unresolved questions about whether Busby was too intellectually disabled to be executed.
Justice Ketanji Brown Jackson’s dissent recounted the extraordinary backstory: The state’s own expert had agreed with Busby’s expert that he was intellectually disabled, and so Texas had joined him in asking the state courts to deem him ineligible for execution. But the Texas courts refused, and then the state changed its mind.
Yet a 5th Circuit panel (a different one from the mifepristone case) granted Busby a temporary stay, with one of the circuit judges noting that the Supreme Court is about to issue a ruling this term in a case called Hamm v. Smith that could be relevant to Busby’s appeal. That judge, Obama appointee Stephen Higginson, wrote that in “a matter of life and death, we must be certain that we apply the proper constitutional rule as to whether and how to determine intellectual disability before states may execute defendants for capital crimes, especially when it is a rule that the Supreme Court imminently will clarify.”
The Supreme Court majority wasn’t bothered by that. “Today, the Court finds itself unable to tolerate even a brief delay,” Jackson wrote in her dissent, joined by Justice Sonia Sotomayor. (The third Democratic appointee, Elena Kagan, noted her dissent but didn’t join Jackson or explain her disagreement.) Jackson wrote that the majority insisted on immediately backing the state’s “current inclination (that it must execute Busby tonight)” over the state’s “former one (that it could not execute Busby at all).” The Biden appointee concluded by observing that, in death penalty cases, the justices “rarely intervene to preserve life. I cannot understand the Court’s rush to extinguish it, much less in the circumstances of this case.”
And that was just an unexplained shadow docket example from that same night. Earlier this week, on Monday, the GOP-appointed majority issued yet another “unreasoned” order, as Alito would call the mifepristone order later in the week, in yet another redistricting win for Republicans, when the majority granted Alabama emergency relief to let it use a congressional map that was previously deemed discriminatory.
As we head into the weekend, we’re awaiting court action on Virginia’s emergency bid to save its Democratic-friendly redistricting effort. I explained in this piece why it’s a long shot, the bottom line being that it’s mainly a state issue and the justices deal with federal issues, though, to be sure, state officials make a federal pitch for relief. Still, the most likely outcome at the high court is a denial and therefore another win for Republicans this election season. But unlike this week’s Alabama order and the recent voting rights ruling in Louisiana v. Callais that sparked the latest GOP map maneuvers, this Virginia appeal might not prompt all three Democratic appointees to dissent. The question is more likely how many dissents, if any, accompany denial, than whether it’s denied.
But, once again, we wait.
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