The Supreme Court's emergency docket has long drawn complaints from legal scholars and justices alike, who worry that cases resolved through the secretive process lack proper deliberation and transparency. But that criticism vanishes when the outcome satisfies ideological preferences, a dynamic now playing out around the Court's handling of mifepristone access.
The justices used the shadow docket to rule on the abortion drug in recent years, a procedure normally reserved for time-sensitive matters requiring swift action. The decision allowed mifepristone to remain available while legal challenges continued, a move that pleased abortion-rights advocates and their supporters in legal academia.
Yet those same voices who had spent years condemning the shadow docket's opacity and lack of deliberative process suddenly fell quiet when confronted with a ruling they favored. The silence is deafening. Critics who had written extensively about the dangers of emergency rulings issued without full briefing or oral argument made little public complaint about how this particular matter was handled.
The pattern underscores a troubling inconsistency in how observers evaluate the Court's work. Procedural concerns about the emergency docket appear contingent, voiced loudly when decisions displease but muted when they align with preferred outcomes. Some sitting justices have themselves raised alarms about overuse of the shadow docket, warning it threatens the Court's legitimacy and normal processes.
The mifepristone episode suggests those warnings matter only instrumentally, deployed as cudgels in partisan battles rather than principled objections to institutional practice. When the stakes involve abortion access, seemingly everyone has forgotten about the procedural qualms.
Author James Rodriguez: "The shadow docket deserves scrutiny regardless of which side wins, but selective outrage only corrodes the credibility of both the Court and its critics."
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