On Friday night, the Supreme Court ordered the abortion pill mifepristone to continue to be made available to women by mail as challenges continue to be litigated in lower courts. As I mentioned on Fox yesterday before the ruling, the Court usually restores the status quo while challenges are being heard. That is what it did again in this case. However, there are dissents from two of the most vocal critics of abortion rights: Justices Clarence Thomas and Samuel Alito.
In the only decision in the case, Justice Alito strongly suggests that some of his colleagues (cited by name) are engaging in rank hypocrisy in using what is known as the “shadow docket” for these purposes.
As a result of last night’s decision, the drug will continue to be available by mail and can be used for up to 10 weeks into a pregnancy
On April 7, U.S. District Judge Matthew Kacsmaryk in Texas invalidated the Food and Drug Administration’s approval of mifepristone despite its availability for many years. The challenge to how the drug was approved came decades after the drug was approved and long after the time for such challenges had run. However, there were a series of changes, including recent changes in 2020, that challengers cited in support of the lower court’s review. Judge Kacsmaryk found that the agency had failed to meet critical federal standards for promulgating these rule changes.
After the Texas ruling, a federal judge in Washington state added a complication by issuing an opposing preliminary injunction that barred the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.” Many of us stated that the dueling injunctions made an expedited review by the Court extremely likely.
Notably, the Court did not uphold the compromise struck by the United States Court of Appeals for the Fifth Circuit in enjoining some recent changes while continuing to allow the drug to be distributed nationally.
The Fifth Circuit considered some of these early changes to be beyond review due to the timing of the challenge. However, while lifting Judge Kacsmaryk’s injunction on the drug nationally, it preserved some of the injunction of recent FDA changes. Those changes would have limited the ability to get the drug without a doctor’s involvement as well as limiting the time when the drug could be taken in the early stages of a pregnancy.
The Justice Department and Danco Laboratories, which makes the name brand version of mifepristone, Mifeprex, brought the matter to the Court for expedited review in seeking to lift all of the injunctions.
The Court used the “shadow docket” (used for procedural decisions) to dispense with the case. It did not include a majority decision or list the justices voting to restore the availability of the drug. However, Thomas and Alito did publish a dissenting opinion by Alito that lashed out at their colleagues not only for their decision but also the use of the shadow docket for this purpose.
Justice Alito noted that the decision of the Court was unnecessary because the FDA could have still made the drug available pending appeal. Thus, the FDA could have used its enforcement discretion to allow Danco to continue distributing mifepristone pending final resolution in the case. As such, Alito argued that “the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”
The discussion of the use of the shadow docket was interesting for a number of reasons. First, Alito called out three colleagues by referring to past objections from Justices Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett in the use of the shadow docket.
The referral to the justices was a peevish moment for the Court since Justice Alito was previously criticized for the use of the shadow docket to make major rulings.
He used this occasion to level the same objection and suggest a degree of hypocrisy in the majority.
The term “shadow docket” is often credited to University of Chicago law professor William Baude who used it to describe the summary decisions in a law review article in 2015. He noted that the Court was issuing “a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious.”
The shadow docket often handles emergency requests, but the docket is meant to resolve largely procedural, not substantive questions.
Alito noted that he has defended the use of the docket in the past only now to find critics on the Court using the docket for the same purpose.
Indeed, he leads off the opinion with that shot across the bow of his three colleagues. He cited Justice Kagan for a dissenting opinion in 2022 (Merrill v. Milligan) in which she criticized as a stay “based on the scanty review this Court gives matters on its shadow docket.” He noted Kagan also criticized another stay in 2021 (Whole Woman’s Health v. Jackson) in a dissent objecting that the order was “emblematic of too much of this Court’s shadow-docket decisionmaking— which every day becomes more unreasoned.” Likewise, he noted that Justice Sotomayor objected in 2019 (Barr v. East Bay Sanctuary Covenant) to the use of the docket to “shortcut” the process of review. Finally, he noted that Justice Barrett in 2021 (Barr v. East Bay Sanctuary Covenant) objected that the Court should not act “on a short fuse without benefit of full briefing and oral argument” in a case that is “first to address the questions presented.”
While he did not mention commentary, the objections of these three justices were supported by liberal pundits and press who railed against the use of the shadow docket in such cases.
Critics slammed the conservatives for using the shadow docket as more evidence of “a wildly undemocratic institution” and making decisions “in the middle of the night” with “zero transparency or explanation, takes it to a whole other level.”
Some of those critics are now applauding this use of the docket.
Alito could not resist the irony of the moment and noted “I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here.”
I expect the justices would respond that this order preserves the status quo rather than renders a major change in the existing precedent or practices. Chief Justice John Roberts also criticized the use of the shadow docket in 2022 when the Court voted 5-4 to restore a Trump-era rule limiting states’ and Native American tribes’ power over large energy projects. However, that decision effectively overturned nearly 50-year-old interpretations of the Clean Water Act. He joined a dissent by Kagan in Louisiana v. American Rivers that objected that the decision “renders the Court’s emergency docket not for emergencies at all” but “another place for merits determinations — except made without full briefing and argument.”
I think that this use of the shadow docket was distinguishable and more defensible since it restored the status quo ante in the area.
This matter is far from over. The Court does not explain its decision to restore the availability of the drug and could well ultimately agree with a lower court in finding that the agency failed to properly promulgate these rule changes, particularly more recent changes. Justice Alito stressed, “[c]ontrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone.”
The case will be heard in the Fifth Circuit in oral arguments on Wed., May 17 at 1 p.m. CT.
Here is the opinion: Danco Laboratories v. Alliance Hippocratic Medicine