Republicans are Destroying Democracy and Democrats Don't Seem to Give a Shit

By abusing the "shadow docket" to push a far-right agenda, the high court's conservative justices just showed Democrats their hand

Photo by Ian Hutchinson on Unsplash

I have a habit of starting my posts off with an analogy to help drive home my point. But frankly, if events of the last few weeks aren’t enough to scare the bejeezus out of you, no amount of cute storytelling on my part will do the trick. So let’s jump right into the abyss. 

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This week in a one-paragraph, unsigned statement via the “shadow docket,” the high court’s process for addressing emergency petitions, the Supreme Court denied relief to plaintiffs challenging Texas’s new abortion law. The new law bans abortions after six weeks.

Adding insult to injury, Texas Senate Bill 8 effectively creates a class of paid vigilantes; private citizens who are allowed to hunt down, file suit against, and collect a $10,000 bounty from women suspected of exercising this constitutional right. 

It is notable that while Chief Justice John Roberts joined with justices Kagan, Breyer, and Sotomayor in dissent, he could not persuade Kavanaugh or Gorsuch to vote with him, which would’ve at least put a hold on the law.

In her dissent, Justice Sotomayor struck at the heart of the court’s misguided decision stating, “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”

Remember the good ole days when Susan Collins assured us that Brett Kavanagh would never overturn Roe v. Wade?

Less than a week ago, the Supreme Court’s conservative majority, also via the shadow docket, relegated as many as 11 million Americans to eviction and possible homelessness. Although New York legislators passed a bill extending their state’s eviction moratorium through January of next year, most states have not. 

Conservative Supreme Court Justices Keep Showing Us Who They Are

Recently, I wrote about the SCOTUS shadow docket. But given the second controversial decision by the court’s conservative majority in less than a week using this venue, more needs to be said.

As Adam Serwer, a staff writer at The Atlantic, notes, emergency appeals through the SCOTUS shadow docket are the new stealth vehicle for conservatives, i.e., the Republican Party, to sidestep standard legal procedure:

Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.

Steve Vladeck, a law professor at the University of Texas at Austin, points out in a piece for The Washington Post, that recent SCOTUS decisions signal that the Biden administration will not receive the same deference afforded its predecessor. Vladeck notes that on forty-one occasions, the Trump Justice Department requested emergency relief for the duration of the government’s appeal of a lower court ruling:

A quiet but undeniable trend during the Trump administration was the dramatic rise in the federal government’s applications to the Supreme Court for what lawyers call “emergency relief.” On 41 occasions, the Trump Justice Department asked the court to put on hold an adverse lower-court ruling for the duration of the government’s appeal. 

In 28 of those cases, the Supreme Court granted the relief, at least in part. But…the court refused the Biden administration’s very first request for such relief — declining to freeze a district court injunction that requires the administration to restart the shuttered “Remain in Mexico” program. The Trump-era program, which lower courts struck down, allows U.S. officials to return non-Mexican asylum seekers to Mexico, from which they entered the United States, while their claims are adjudicated in U.S. immigration courts. 

Even though the Biden Justice Department had explained in detail how the lower court’s ruling interfered not only with the president’s broad discretion over immigration policy but also with foreign relations with Mexico — just as the department had in Trump administration immigration cases — the Supreme Court denied the relief.

The high court’s decisions on “Remain in Mexico”, the eviction moratorium, and now Texas’s SB8 leave little doubt regarding the conservative majority’s willingness to abuse the system for political ends. So with control over the White House and Congress, what have Democrats done about any of this?

So far, not much. 

Democrat-led Senate Judiciary Committee announced “a hearing to examine the Texas abortion ban and the Supreme Court’s abuse of its “shadow-docket.” This is all well and good, but when will the Democrats start playing offense? Better yet, how about putting a stop to this nonsense by expanding the Supreme Court? 

I know we need sixty votes to get past the Senate, but turn the tables and ask yourself, how long it would take for Mitch McConnell to toss the filibuster out the proverbial window? 

Here’s a thought experiment — what would happen if every blue State responded to the new SCOTUS precedent by enacting laws empowering their citizens to sue anyone with an AR-15? Is there any doubt that the conservative justices would stop those laws dead in their tracks?

Of course, you and I both know Democrats will never do this — but shouldn’t they? I’m beginning to wonder if Democrats are secretly on board with what’s happening. Don’t think so?

Democrats Keep Dropping the Ball on the Eviction Crisis

Then let’s take our little experiment a step further: what if Democrats lost a presidential election, then were iffy on whether it was legit, then Black Lives Matter protesters stormed the Capitol looking for someone to hang? Does anyone really think Republicans would be on the Sunday shows afterward talking about bipartisanship?

I’ll say one thing about Republicans. They let nothing stand in the way of their agenda. They’d have no patience for a Joe Manchin or Kysten Senima screwing up their party’s agenda.

And yet time after time, they’ve caught Democrats flat-footed or just plain asleep at the wheel. Whatever you might think about them, Republicans have the Democratic Party’s number. 

Think about it — Mitch McConnell took former President Obama’s Supreme Court appointment away like a schoolyard bully snatching a third grader’s lunch money. Then, when an opening came just weeks before the 2020 presidential election, he pushed Amy Coney Barrett through without blinking an eye.

Now ask yourself, what price did Republicans pay for doing this?

I’m not suggesting Democrats should break the rules, but dammit, how about bringing the heat for a change?

When the Supreme Court ignores its own precedents, and Republicans ignore the Constitution, it’s time for Democrats to stop playing defense.