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Courts without law


Justice Kagan’s dissent in Whole Woman’s Health II focused on the Trump Court’s abuse of the shadow docket:

Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.

In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-
docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.

I could write a book, but the form of judicial review currently entrenched in the United States — a life-tenured majority represented a minority faction routinely overruling decades-old precedents and important laws based on unreasoned whim — is not in any way consistent with democratic principles.

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