September 28, 2022 3:35 am
A ‘dangerous cabal’? Alito says high court is no such thing

A ‘dangerous cabal’? Alito says high court is no such thing

Justice Samuel Alito responded to criticisms, including those from colleagues, that recent Supreme Court decisions in major cases were made hastily and undercover. He called it “a dangerous cabal” that improperly decided important matters.

Alito made remarks at the University of Notre Dame and criticized three recent court decisions that saw conservatives win over liberals.

In a series of quick decisions, the court reinstated a Trump-era immigration program , which allowed evictions that were halted by the coronavirus panademic to resume . a Texas law severely restricting abortion was also restored.

All three cases were brought to the court by emergency motions. They were quickly decided without any oral argument or full briefing. That process has been called the court’s ” shadow docket.”

“Our decisions in these three emergency matters have been criticized by those who think we should have decided them the other way, and I have no trouble with fair criticism of the substance of those decisions,” Alito said. He added that his complaint was about the media’s and political discussion surrounding our shadow docket. The truth of the matter is that there was nothing new or shadowy about the procedures we followed in those cases — it’s hard to see how we could handle most emergency matters any differently.”

Alito noted that it’s not up to the court but to the parties in cases when they bring emergency motions. He said the recent criticism has suggested that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view, without waiting for the lower courts to consider the issues.”

Alito said that “picture is very sinister and threatening, but it is also very misleading.”

The string of recent emergency decisions began with a 6-3 vote to reinstate a Trump administration program that forces people to wait in Mexico while seeking asylum in the United States. The court ruled that the Biden administration had likely violated federal law by trying to end the program.

Days later, again on a vote of 6-3, the justices stopped the Biden administration’s enforcement of a temporary ban against evictions. This ban was placed in response to the coronavirus pandemic.

Most recently, the high court voted 5-4 to reject a Texas law which has led to a nearly total ban on abortion in Texas. In that case , the unsigned major opinion was published around midnight. It was only two pages long. Chief Justice John Roberts was joined by his liberal colleagues, unlike the two previous emergency cases.

Alito stated that critics were wrong to claim that Texas’ conservatives had nullified Roe v. Wade’s landmark decision granting women the right to abortion. Critics claim that the court allowed the law to take effect and has allowed the state of Texas to severely curtail abortions in this second-largest country.

It was also in that decision that Alito’s colleague, Justice Elena Kagan, said the majority’s ruling “illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process.”

The majority made a significant ruling without any guidance from an appeals court and then after reviewing “only the most cursory party submissions, and then only hastily,” Kagan wrote. Kagan accused her colleagues of not even bothering to explain why they reached their conclusions.

“In all of these ways, the majority’s decision is emblematic for too much of this Court’s shadow docket decisionsmaking — which each day becomes more unreasonable, inconsistent, and difficult to defend,” she stated.

Roberts also criticised the case’s route to court. They were asked to “resolve the novel questions — at minimum preliminarily — within the first instance, over the course of two day” without oral argument or additional briefs.

Alito went through and rejected 10 different criticisms of the court’s emergency practices, from the argument that emergency orders are “secretive” to the fact that they aren’t typically signed by the justice who wrote them. Alito admitted that there have been more emergency orders in recent years, but he also attributed this to President Donald Trump’s initiatives and issues sparked from the coronavirus.

Alito said he wasn’t suggesting “that our current practice is perfect and that possible changes should not be considered.” But he said that the recent portrayal of the court “feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Alito’s speech came just days before the justices’ planned return to their courtroom for oral arguments, more than a year and a half after the in-person sessions were halted because of the coronavirus pandemic. The justices were hearing cases via phone during the pandemic, but they are currently on summer break.

Justice Clarence Thomas Recently, Justice Amy Coney Barrett went to Notre Dame , to speak. She was a former law student and has taught for many years.


Gresko reported from Washington. Casey Smith is a member of the Associated Press/Report for America Statehouse News Initiative. Report For America , a national service program for journalists that places them in local newsrooms to cover under-covered issues.