{"id":915423,"date":"2026-06-25T18:18:03","date_gmt":"2026-06-25T23:18:03","guid":{"rendered":"https:\/\/newsycanuse.com\/index.php\/2026\/06\/25\/the-week-at-scotus-maps-mifepristone-and-more-divide-justices-on-the-shadow-docket\/"},"modified":"2026-06-25T18:18:03","modified_gmt":"2026-06-25T23:18:03","slug":"the-week-at-scotus-maps-mifepristone-and-more-divide-justices-on-the-shadow-docket","status":"publish","type":"post","link":"https:\/\/newsycanuse.com\/index.php\/2026\/06\/25\/the-week-at-scotus-maps-mifepristone-and-more-divide-justices-on-the-shadow-docket\/","title":{"rendered":"The week at SCOTUS: Maps, mifepristone and more divide justices on the shadow docket"},"content":{"rendered":"
\n

Welcome back, Deadline: Legal Newsletter readers. <\/strong>Waiting is a big part of Supreme Court reporting. The court is notoriously opaque about what it\u2019s doing, when it\u2019s doing it and, sometimes, due to its lack of explanations for significant rulings, why it\u2019s doing it. But let\u2019s put a pin in that last \u201cshadow docket\u201d<\/a> point for now. It\u2019ll make a surprise cameo later.<\/p>\n

We were in familiar waiting territory<\/strong> on Thursday afternoon, as the clock ticked toward 5 p.m. ET. That was the latest arbitrary deadline that Justice Samuel Alito had set<\/a> 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<\/a> from the 5th Circuit halting such access would take effect. A company that makes the abortion pill warned that<\/a> the order would unleash \u201cchaos for patients, providers, pharmacies, and the drug-regulatory system.\u201d<\/p>\n

Five o\u2019clock came and went.<\/strong> No word from the court. It wasn\u2019t until closer to 5:30 that the justices decided \u2014 over dissents from Alito and Justice Clarence Thomas \u2014 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.<\/p>\n

It\u2019s unclear what real effect<\/strong> 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\u2019s outsize influence on American life writ large, it\u2019s no way to run a country.<\/p>\n

Instead of imposing an arbitrary deadline<\/strong> 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\u2019s review would have done no harm. The arbitrary deadline, on the other hand, risked serious confusion at the very least.<\/p>\n

Turning to the dissents,<\/strong> Alito said<\/a> all this stemmed from \u201cthe perpetration of a scheme to undermine our decision in Dobbs<\/em>,\u201d the 2022 opinion he authored that overturned federal abortion rights. Thomas wrote his own dissent, explaining why<\/a>, 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 \u201ccriminal enterprise.\u201d<\/p>\n

What did Alito and Thomas\u2019 colleagues in the majority think?<\/strong> Besides the obvious fact that none of the other seven justices joined either dissent, we don\u2019t 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\u2019s unsigned order gave no reasoning. It only said that the 5th Circuit\u2019s 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.<\/p>\n

Alito took a swipe at that lack of explanation <\/strong>in the very first sentence of his dissent. \u201cThe Court\u2019s unreasoned order granting stays in this case is remarkable,\u201d he wrote. Putting aside the merits of the argument that followed, it\u2019s \u201cremarkable,\u201d to use his word, that he would think to call out the \u201cunreasoned\u201d nature of the order \u2014 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.<\/p>\n

It\u2019s remarkable not only because of the hypocrisy<\/strong> it required, given Alito\u2019s past joining of such majority orders and his public defense<\/a> of the shadow docket (or \u201cemergency docket\u201d or \u201cinterim docket\u201d<\/a> or whatever term one prefers for these fast-track orders). It\u2019s 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\u2019s stay, allowing Texas to execute Edward Busby that night<\/a> for the 2004 murder of Laura Crane, despite unresolved questions about whether Busby was too intellectually disabled to be executed.<\/p>\n

Justice Ketanji Brown Jackson\u2019s dissent<\/strong> recounted the extraordinary backstory: The state\u2019s own expert had agreed with Busby\u2019s 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.<\/p>\n

Yet a 5th Circuit panel (a different one from the mifepristone case) <\/strong>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<\/a> that could be relevant to Busby\u2019s appeal. That judge, Obama appointee Stephen Higginson, wrote that<\/a> in \u201ca 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.\u201d<\/p>\n

The Supreme Court majority wasn\u2019t bothered by that. <\/strong>\u201cToday, the Court finds itself unable to tolerate even a brief delay,\u201d Jackson wrote in her dissent<\/a>, joined by Justice Sonia Sotomayor. (The third Democratic appointee, Elena Kagan, noted her dissent but didn\u2019t join Jackson or explain her disagreement.) Jackson wrote that the majority insisted on immediately backing the state\u2019s \u201ccurrent inclination (that it must execute Busby tonight)\u201d over the state\u2019s \u201cformer one (that it could not execute Busby at all).\u201d The Biden appointee concluded by observing that, in death penalty cases, the justices \u201crarely intervene to preserve life. I cannot understand the Court\u2019s rush to extinguish it, much less in the circumstances of this case.\u201d<\/p>\n

And that was just an unexplained shadow docket example from that same night.<\/strong> Earlier this week, on Monday, the GOP-appointed majority issued yet another \u201cunreasoned\u201d 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<\/a> to let it use a congressional map that was previously deemed discriminatory.<\/p>\n

As we head into the weekend, we\u2019re awaiting court action <\/strong>on Virginia\u2019s emergency bid to save its Democratic-friendly redistricting effort. I explained in this piece<\/a> why it\u2019s a long shot, the bottom line being that it\u2019s mainly a state issue and the justices deal with federal issues, though, to be sure, state officials make a federal pitch<\/a> 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\u2019s Alabama order<\/a> and the recent voting rights ruling in Louisiana v. Callais that sparked the latest<\/a> 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\u2019s denied.<\/p>\n

But, once again, <\/strong>we wait.<\/p>\n

Have any questions or comments for me? Please\u00a0<\/strong>submit them through this form<\/strong><\/a>\u00a0for a chance to be featured in the Deadline: Legal Blog and newsletter.<\/strong>\u00a0\u00a0<\/p>\n<\/div>\n

Read More<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Welcome back, Deadline: Legal Newsletter readers. Waiting is a big part of Supreme Court reporting. The court is notoriously opaque about what it\u2019s doing, when it\u2019s doing it and, sometimes, due to its lack of explanations for significant rulings, why it\u2019s doing it. But let\u2019s put a pin in that last \u201cshadow docket\u201d point for<\/p>\n","protected":false},"author":1,"featured_media":915424,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[99233,40309],"tags":[150556,42592],"class_list":["post-915423","post","type-post","status-publish","format-standard","has-post-thumbnail","category-mifepristone","category-scotus","tag-mifepristone","tag-scotus"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/posts\/915423","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/comments?post=915423"}],"version-history":[{"count":0,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/posts\/915423\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/media\/915424"}],"wp:attachment":[{"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/media?parent=915423"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/categories?post=915423"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/newsycanuse.com\/index.php\/wp-json\/wp\/v2\/tags?post=915423"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}