Senate Judiciary holds hearing because SCOTUS "did not do something extraordinary."

On Wednesday, the Senate Judiciary Committee held a hearing entitled, "Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket." As Senators Ted Cruz and John Cornyn pointed out during the hearing, the Senate Democrats are more focused on intimidating the federal judiciary than dealing with the myriad of crises the Biden Administration faces.

Democrats argue that a decision by the Supreme Court earlier this month to allow the Texas Heartbeat Act go into effect was unconstitutional and an endorsement of the law. However, Professor Jennifer Mascott explained

The Supreme Court’s September 1, 2021, decision not to issue an emergency order enjoining application of the Texas Heartbeat Act was consistent with longstanding federal jurisdictional doctrines related to threshold questions of standing, state sovereign immunity, and the scope of relief available in the challenge brought before the Court. In light of these numerous complex and thorny issues, and the lack of a present concrete dispute involving the defendants in the litigation, it would have been extraordinary for the Court to grant an order on the merits of the challenged state legislation. The Court’s decision not to intervene maintained the pre-litigation status quo and the stays of district court litigation pending appeal issued by both of the lower courts to rule in the case.

Ranking Member Chuck Grassley echoed Professor Mascott's remarks:

Today, we are having a hearing because the Supreme Court did something very ordinary. Let that sink in: we are having a hearing because the Supreme Court did not do something extraordinary. It declined to intervene on an exceedingly expedited basis while reserving judgment on complex legal issues.

Much of the talk about the case has referred to the Court’s so-called “shadow docket.” For a long time, the Court and practitioners have called this the “emergency docket” because it’s designed so the Court can provide relief in emergencies. A good amount of these orders have historically dealt with last minute death penalty appeals, but we didn’t hear complaints from the other side about the docket for those cases.

So rather than rely on a catchy name invented by a law professor, let’s look at what the Supreme Court actually said in its decision on September 1. In that case, the plaintiffs waited several months to sue after the law was passed, so the courts did not have much time to work through the legal issues in the case. Having not succeeded in the lower courts, the plaintiffs asked the Supreme Court to grant them emergency relief.

A majority of the justices on the Supreme Court said that the abortion providers had raised “serious” constitutional arguments. They didn’t pre-judge the issue, but they acknowledged that the plaintiffs had a serious case. But the Court also said that the case raised novel procedural issues. It noted that under current precedent, it was not clear that the plaintiffs could sue the defendants. The Texas Heartbeat Act specifically prohibits several of the defendants from enforcing the law. Instead, private parties can do so in court. The majority noted that this system raised novel legal issues—and everyone seems to agree on that point. The Supreme Court said that it wanted the lower courts to address these novel issues first.

Democrats should stop taking advantage of their position to intimidate the federal judiciary. And as Senator Tom Cotton pointed out, hearings like yesterday's distract from how radical the Democrat Party has become on issues like abortion.