Justices Unhappy With Unfavorable News Coverage

           Supreme Court justices have taken up a new pastime, media criticism, even though they have been working around the clock recently to issue momentous decisions late at night from the Court’s shadow docket. The so-called “shadow docket,” once an issue only for obsessive Court watchers, has emerged over the past few months into a concern for congressional committees and for newspaper editorialists and legal commentators generally.

            The concern peaked after the justices voted 5-4 in a shadow docket decision on September 1 to allow the state of Texas to put into effect a law banning abortions after the sixth week of pregnancy in direct contradiction to the landmark abortion rights decision in Roe v. Wade (1973). That ruling, reaffirmed as recently as 1992, allows a woman to terminate a pregnancy up to the 24^th week of presidency.

            Five of the justices – most recently, Samuel A. Alito Jr. in a speech on Thursday [Sept. 30] at Notre Dame Law School – have reacted defensively to the general tone of recent news coverage suggesting that the justices are voting along partisan lines rather than according to law. The justices have taken to the lecture circuit to air their views just as their poll numbers are under water at an all-time low and as a growing number of Americans – 37 percent in the most recent survey -- consider the Court to be “too conservative.”

            Alito, speaking for nearly an hour to a seemingly friendly audience at Notre Dame Law School, objected to the six-year-old coinage “shadow docket” to refer to what he called instead the Court’s “emergency docket.” Regarding the ruling in the Texas case, Whole Woman’s Health v. Jackson, Alito contended that news coverage had wrongly conveyed what he called “the false and inflammatory claim that we nullified Roe v. Wade.”

            Instead, he noted that the unsigned one-paragraph opinion for the majority acknowledged the “serious questions regarding the constitutionality of the Texas law  . . . .” and expressly allowed legal challenges to the law in Texas courts. Speaking at a campus dominated by anti-abortion faculty, Alito seemed to gloss over the undeniable fact that the law, if enforced as intended, will prohibit virtually all abortions in the state.

            Alito contended that the Court had followed well-established procedures in dealing with the Texas law and, separately, in blocking the Biden administration from instituting a pandemic-related moratorium on evictions. The Centers for Disease Control (CDC) had issued the moratorium to try to protect financially strapped renters from the risk of community spread after being thrown out into the streets or into crowded shelters. The vote in that decision, Alabama Association of Realtors v. Department of Health and Human Services, issued on Aug. 26, was 6-3 with the three liberal justices in dissent: Breyer, Sotomayor, and Kagan.

            The liberal justices had also dissented in the Texas case, joined in that instance by Chief Justice John G. Roberts Jr. Dissenting in that case, Kagan specifically complained about what she called “too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

            In the Notre Dame speech, Alito countered that what he called “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” “This portrayal,” he added, according to Adam Liptak’s account in The New York Times, “feeds unprecedented efforts to intimidate the Court and to damage it as an independent institution.”

            Earlier this month, Justice Amy Comey Barrett had somewhat similarly complained about news media coverage of the Court’s recent decisions in a Sept. 12 speech at the University of Louisville’s McConnell Center, according to the account by the Courier-Journal’s Mary Ramsey. “The media, along with hot takes on Twitter, report the results and decisions,” Barrett remarked, without citing any specific news account. “That makes the decision seem results-oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision.”        Justice Clarence Thomas aired a similar complaint a few days later in remarks at Notre Dame Law School on Sept. 16.

            Barrett opened her remarks at the ostensibly bipartisan McConnell Center – with the Senate’s Republican leader Mitch McConnell sitting on stage – by insisting that the justices are not “partisan hacks.” Even so, the shadow docket decisions with Donald Trump in the White House favored the Republican administration by granting more than a dozen applications to set aside lower court rulings unfavorable to Trump’s policies.

By contrast, the Court has dealt the Biden administration setback after setback, with three Trump appointees providing the votes needed to block policies sought by the Democratic administration. As one example, the Court on Aug. 24 effectively ordered the Biden administration to reinstitute the Trump-era policy that required asylum applicants to remain in Mexico rather than wait in the United States even after Biden’s Department of Homeland Security had rescinded the policy based on what the Court’s majority found to be inadequate process.

            The justices’ complaints about news coverage come straight out of the standard “shooting the messenger” playbook for politicians and are eerily reminiscent of the “fake news” mantra that Trump used to gain and maintain power even in the face of witheringly unfavorable news coverage. If the justices want to prove that they are not political hacks with black robes, they would do well to stop voting along partisan lines and to stop behaving like thin-skinned politicians.