Senator Durbin Shadowboxes with Shadow Docket

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Senate Judiciary Committee chairman Dick Durbin will be holding a hearing tomorrow titled “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket.” In a National Law Journal essay on the topic, Durbin complains that the Supreme Court denied the abortion providers’ request for emergency relief against the Texas Heartbeat Act. Further, he faults the Court for “selectively using the shadow docket, only granting emergency relief when it suits their ideological agenda,” and objects specifically to the Court’s granting relief in the last year of the Trump administration that “allow[ed] federal executions to resume for the first time in nearly two decades.”

Durbin’s complaint about the Court’s denial of emergency relief against the Texas Heartbeat Act is feeble. Durbin states that “the Supreme Court’s conservative majority claimed that there was no one for the court to enjoin,” but he himself, like the four dissenters, is unable to explain what relief against which named defendants would somehow prevent the millions of nonparty individuals from enforcing the Act in hundreds of Texas courts. (See here for why the denial of relief should have been unanimous.) It’s thus very strange that a critic of the “shadow docket” would think that the abortion providers’ emergency request was an apt occasion for the Court to intervene.

On Durbin’s further complaint that the Court has been ideologically “selective” in granting relief, his prime example appears to be much weaker than he realizes. As Hashim Mooppan, a senior DOJ official involved in the federal death-penalty litigation, has explained in testimony recently submitted to President Biden’s Supreme Court commission:

The critical narrative that some have constructed about the Supreme Court’s federal death-penalty orders is belied by the record. The Court did, of course, summarily vacate several last-minute injunctions and stays of executions, based on expedited briefing and generally without providing a written explanation. But the critics err in accusing the Court of having rushed to judgment in derogation of established standards. In particular, they are wrong that the Court vacated lower-court reprieves that were justified by the existence of likely meritorious claims and the need to prevent the irreparable harm of death. That narrative mischaracterizes the strength and nature of the claims asserted, and it also misconstrues the standards governing relief from execution pending further litigation….

[T]here was only one, inmate-specific injunction entered by the lower courts where some Justices dissented from the Court’s vacatur order on the (later-disproved) ground that the inmate was likely to succeed on the claim at issue. Put differently, in the Court’s seven other emergency orders that vacated the lower-court rulings postponing the executions of 12 of the 13 inmates, the record reveals that no Justice ever actually claimed that any of those inmates had a significant possibility of ultimate success on the claims therein. Indeed, for three of those vacatur orders, no Justice dissented at all (as was also the case for twelve orders that merely denied an inmate’s application for relief after the court of appeals had already denied relief)….

At the end of the day, none of [the inmates’] claims satisfied the legal and equitable standards necessary to obtain a stay or injunction further delaying these already long-delayed sentences of death for murders that were unusually depraved even by capital standards, including the killings of eight children and a pregnant woman. The granting of relief was especially improper when, as repeatedly occurred during this litigation, it was entered just days (if not hours) before the scheduled execution. The Supreme Court has repeatedly admonished that such last-minute reprieves are inappropriate absent exceptional circumstances, given the risks of abuse and delay that they pose as well as the toll they take on all involved in litigating, administering, and witnessing the executions, including the victim’s family members who have traveled to the execution facility. The Court therefore acted appropriately in applying the established standards to reverse lower courts in the eight instances where they erroneously granted relief to the inmates.

(Italics in original; underlining added.)

Ed Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is a regular contributor to NRO’s Bench Memos. He is co-editor of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

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