Congressman Johnson Statement on SCOTUS Shadow Docket Ruling on Texas Law SB8

September 3, 2021
Press Release

ATLANTA, GA — Congressman Hank Johnson (GA-04), chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet, released the following statement after the Supreme Court ruled to leave Texas Law SB8 in place:

“The Supreme Court’s decision to allow Texas’s draconian anti-abortion law to go into effect is a profound assault on a woman’s fundamental right to choose. Functionally speaking, this decision overrules Roe v. Wade for the state of Texas for the time being — a clear threat to women’s health and right to control their own bodies. It’s striking that four of the five justices in support of this decision are male. Shockingly, neither the law nor the decision makes any exception for incest or rape. 
“Moreover, this decision issued in the dead of night on the Supreme Court’s “shadow docket”—meaning that the usual rigorous briefing, oral arguments, and public attention to the Court’s cases were short circuited in favor of bare-bones legal arguments made on a rushed schedule. The resulting one-paragraph, unsigned opinion is not appropriate for a wholesale change in the constitutional rights enjoyed by Texans, which might be followed by similar attempts in other states.  
“As with the Supreme Court’s other recent notable shadow docket decisions over the past weeks —forcing the Biden Administration to continue a likely illegal Trump-era immigration policy and reversing the Biden Administration’s continuation of the eviction moratorium — the majority are able to avoid explaining, for example, why the Court routinely overturned nationwide injunctions for the Trump Administration but are doing the opposite now.  By abandoning its normal decision-making process and foregoing detailed, well-reasoned opinions, the Supreme Court makes itself look less like a court and more like a rubber stamp, a dangerous development that threatens the Court's very legitimacy.
“In this case, abuse of the emergency-order docket goes beyond the Supreme Court. The Fifth Circuit Court of Appeals engaged in highly irregular motions practice of its own to fast-track this case to the Supreme Court while denying the trial court its usual ability to hold a hearing and build a record on whether to preserve the status quo while courts sort out legal arguments. It’s as if this midnight shadow docket decision was the end result of a carefully orchestrated scheme to overturn Roe v. Wade.
“These recent shadow docket practices are a clear threat to the rule of law and our democracy.  As Chair of the House Courts Subcommittee, this only leads me to double-down on my oversight work by examining the use of the shadow docket and formulating a Congressional response.”

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