Senator Durbin Shadowboxes with Shadow Docket

By ED WHELAN

September 28, 2021 1:38 PM

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 op-ed 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.