Alito Rejects Criticism of Texas Case as Overturning Roe v. Wade

(Bloomberg) -- Justice Samuel Alito defended the U.S. Supreme Court’s handling of a bid to stop a Texas law that bars most abortions after six weeks of pregnancy, accusing critics of distorting what the court did when it let the controversial ban take effect.

In a sharply worded speech at the University of Notre Dame, Alito rejected contentions that the court effectively overturned Roe v. Wade, the landmark decision that legalized abortion nationwide, when it rejected an emergency request by providers to block the law.

“Put aside the false and inflammatory claim that we nullified Roe v. Wade,” Alito said. “We did no such thing. And we said that expressly in our order.”

Alito was part of the majority that silently let the law take effect Sept. 1 and then explicitly rejected the request to block it on a 5-4 vote 24 hours later. The court said the challengers had “raised serious questions regarding the constitutionality of the Texas law” but hadn’t shown they could overcome a thicket of procedural obstacles stemming from the law’s unusual delegation of enforcement powers to private parties. 

Alito said any suggestion that the court should have heard arguments in the case was “ridiculous” given the short time frame. 

“The application was filed about 36 hours before the law was scheduled to take effect,” Alito said. “It was impossible to have oral argument during that period of time.”

The justices will hear arguments Dec. 1 on a Mississippi appeal that explicitly asks the court to overturn Roe. Mississippi is defending a law that bans abortions after 15 weeks of pregnancy.

‘Catchy and Sinister’

Alito used the hour-long speech to blast the news media and politicians for their portrayal of the so-called shadow docket, the stream of emergency requests that have become a major part of the high court’s work. 

The justice said critics were using the “shadow docket” label to try to make the court’s emergency work seem underhanded.

“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,” Alito said. “And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

The abortion decision came on the heels of emergency orders that blocked President Joe Biden’s eviction moratorium and reinstated former President Donald Trump’s “remain in Mexico” policy for asylum seekers.

“There was nothing new or shadowy about the procedures we followed in those cases,” Alito said. “It’s hard to see how we can handle most emergency matters any differently.”

Alito said it is “rank nonsense” to suggest the court is trying to hide what it is doing by issuing late-night orders, as it often does.

“When we issue an order late at night, it is almost always because we are facing a deadline,” he said, without addressing the timing of the abortion decision, which the court released a few minutes before midnight after the law had been in effect for a day. 

One of the leading critics of the shadow docket, University of Texas law professor Stephen Vladeck, said Alito’s speech “missed the point of perhaps the most significant objection to the rise of the court’s emergency rulings -- their unexplained inconsistency.”

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