Senate scrutinizes Supreme Court emergency docket in wake of Texas abortion law

Witnesses see problems with how justices handle emergency requests

Fatima Goss Graves, president and CEO of the National Women's Law Center, testifies during the Senate Judiciary Committee hearing about the way the Supreme Court handles emergency requests. (Tom Williams/CQ Roll Call)
Fatima Goss Graves, president and CEO of the National Women's Law Center, testifies during the Senate Judiciary Committee hearing about the way the Supreme Court handles emergency requests. (Tom Williams/CQ Roll Call)
Posted September 29, 2021 at 4:52pm

Senate Democrats and expert witnesses warned Wednesday that the way the Supreme Court has handled recent emergency requests threatens the constitutional rights of all Americans — while Republicans said those concerns only arose now because of a recent decision about a Texas abortion law.

The Senate Judiciary Committee called the hearing four weeks after the justices issued a sharply divided 5-4 emergency order, just before midnight, that allowed that Texas law to go into effect. The state law all but bans abortion after six weeks of pregnancy — about 85 percent to 95 percent of all abortions in that state.

The main legal quandary is both that the state law restricts abortion beyond what current Supreme Court precedents allow and that it has an unusual design that empowers private citizens to enforce the law instead of state officials.

That creates a procedural legal tangle for the abortion rights advocates who seek to challenge it on an emergency basis; the Supreme Court majority cited the “complex and novel” procedural questions in a decision not to step in and stop the law.

Chairman Richard J. Durbin of Illinois said that the Supreme Court “has now shown that it’s willing to allow even facially unconstitutional laws to take effect.” Durbin’s use of the term “facially” refers to the legal concept of facial challenges, which are policies or laws that are written as unconstitutional, or on face value.

“When the law is aligned with certain ideological preferences, constitutional rights for millions of Americans should not be stripped away in the dark of night, even at the Supreme Court,” Durbin said.

Republicans on the committee accused the Democrats of calling the hearing because the Supreme Court will decide a case this term on Mississippi’s ban on most abortions after 15 weeks of pregnancy, and they used the hearing to criticize a bill House Democrats passed last week that would block states from enacting certain types of abortion restrictions.

“It’s clear that this is part of a concerted effort to intimidate and bully the members of the Supreme Court,” Texas Republican Sen. John Cornyn said.

Witnesses invited by Republicans backed the Supreme Court’s action on the Texas law, telling the committee that the courts can’t just step in and stop a law. Instead, there must be defendants in a case that the court can take action against, and there wasn’t in the challenge to the Texas law, at least at this point.

But witnesses invited by the Democrats said the abortion decision pointed to larger problems with how the Supreme Court deals with emergency requests — particularly if other states use the Texas law as a model to frustrate legal challenges.

At least one member of the high court seemed to acknowledge the interest in the issue. Justice Samuel A. Alito Jr. is scheduled to deliver a public address on the emergency docket at Notre Dame Law School on Thursday. The court’s new term starts on Monday.

Fatima Goss Graves, the president and chief executive officer of the National Women’s Law Center, said at Wednesday's Judiciary hearing that the Supreme Court’s non-action in Texas meant that the justices effectively overturned 50 years of precedent for 1 in 10 women of reproductive age in the country.

“And if you can upend our constitutionally protected right to abortion in a one paragraph opinion, where does it end?” Graves said.

Steve Vladeck, a University of Texas law professor who has written about the emergency docket, said the justices barely explained why they didn’t intervene in the Texas abortion law, which was inconsistent with how the justices intervened in California and New York laws about pandemic restrictions.

“In the process the court rewarded Texas for its cynicism, where the state’s contrived procedural complexities became the justices’ stated justification for not blocking the patently unconstitutional statute,” Vladeck said.

“It’s the Supreme Court, not state legislatures, that gets the final word as to what the Constitution protects,” Vladeck said. “And it’s the court’s obligation to do so through principled decisions that adequately and consistently explain themselves.”