By Jon Allsop
In the spring of 2020, the Supreme Court did something unprecedented, by allowing the audio of oral arguments—which justices heard by phone, because of the pandemic—to be broadcast live. Many hailed that as a breakthrough for judicial transparency and a first step, perhaps, toward cameras in the courtroom, which justices have long opposed. Rather than become increasingly visible, however, much of the court’s decision making has remained hidden from public view, and the court has lately expanded its “shadow docket”—a collective term for rulings handed down without oral arguments. The shadow docket is neither new nor inherently controversial—it’s long been used to tidy up mundane case administration and weigh in on emergencies—but in recent years, the court has used it to change the status quo, allowing controversial laws to take effect while lower courts hash them out. Often, decisions have been handed down in the dead of night, with little-to-no explanation. “It’s hard for the public to know what is going on,” William Baude, a law professor who coined the term “shadow docket,” told Reuters in March, “and it’s hard for the public to trust that the court is doing its best work.”
This week, five of the court’s six conservative justices used the shadow docket to gut Roe v. Wade in the state of Texas. As a new law was about to take effect, the court was silent; its inaction permitted a ban on abortion, including in cases of rape and incest, after six weeks, and an absurd, dystopian loophole through which state officials have established a ten-thousand-dollar “bounty” for private citizens who successfully sue those who perform or “abet” an illegal abortion. As the country reacted, five justices confirmed their decision in a brief, unsigned note, stating that their unwillingness to block the law did not amount to an endorsement of its constitutionality. (The court’s three liberal justices and John Roberts, the chief justice, each wrote a dissent; Elena Kagan’s referred to the court’s use of the shadow docket as increasingly “unreasoned, inconsistent and impossible to defend.”) The court is set to hear a case concerning Roe in its next term, a dispute over a Mississippi abortion law. The “sneaky” Texas decision, as Michelle Goldberg, a columnist at the New York Times, described it to MSNBC’s Chris Hayes, enabled an abortion ban “without the headline ‘Roe v. Wade is overturned,’ without the shockwaves and convulsions it would cause if that happened.”
If that had been the five justices’ intent, then their ploy worked, to an extent. Headlines in major outlets skirted Roe and spoke of the justices’ decision in passive terms. And the outcome appeared to take the national press by surprise, to the frustration of media critics. “I literally watch the news for a living, and I had little to no knowledge of this abortion ban in Texas until late last night,” Lis Power, of Media Matters for America, a liberal watchdog group, wrote. “It’s a huge indictment of cable news that something this impactful can occur with practically no cable news coverage until after it’s too late.” (Power later calculated that cable networks did not mention the bill once in the six days leading up to its enactment as law.) In his newsletter, Press Run, Eric Boehlert accused the press of “gorging itself on Afghanistan ‘optics’ coverage” while maintaining a “virtual Texas abortion blackout.”
Media-watchers didn’t only take aim at sins of omission—many of them also criticized the framing of recent public discourse surrounding the court, resurrecting the ghosts of old op-eds in which commentators insisted that liberals had “nothing to fear” from President Trump’s court nominees, and that Roe was safe. Numerous journalists accused their colleagues of dismissing dire predictions as hysterical alarmism; others took aim at those who have declared the rulings of the post-Trump court unexpectedly balanced and minimalist. “We love a redemption story,” Dahlia Lithwick, a legal correspondent for Slate, told Hayes on MSNBC. “Think of how many gazillion stories you heard at the end of the term about how surprisingly moderate the court was, and how it doesn’t matter that they did away with what’s left of the Voting Rights Act and ended unions; what really matters is that a cheerleader gets to curse.”
Their criticism has not gone without pushback. “There seems to be this received wisdom that somehow the ‘news media’ has downplayed the prospect of abortion rights being curbed by the Supreme Court. Where is the evidence of that?” Lawrence Hurley, who covers the court for Reuters, asked. “Pretty much everyone involved in abortion litigation has been openly discussing how Roe v. Wade is on the line ever since Justice Kennedy retired and pretty sure every SCOTUS reporter has reported on it as such.” Court coverage over time has certainly not been a monolith; plenty of beat reporters have covered it with a careful eye. The same is true of abortion-rights journalism, including on the local level.
Still, the criticisms have merit, especially when it comes to how the court and reproductive rights rank as matters of urgent concern worthy of top billing in the news cycle. Both stories can often feel siloed—the court, for instance, has immense power, but isn’t subject to the same ongoing, top-level focus we afford the White House or Congress. It appears in the news cycle mainly after something big happens—a major decision, or the death or retirement of a justice (Ruth Bader Ginsburg dies is a banner headline; Stephen Breyer remains at work, less so). Reactive coverage fails to explain how we arrive at rulings that devastate people’s lives. Reporting on the legal battle over abortion requires sustained attention—of the court, and the judicial activists who seek to manipulate it, often from the shadows.
Below, more on the court and Roe:
- Retire Breyer: Breyer, who is eighty-three and one of the court’s three remaining liberal justices, has attracted media speculation over the possibility of his retirement.. Progressive pundits, including MSNBC’s Mehdi Hasan, have made the case that Breyer should step aside now, when Democrats control who will replace him; in recent interviews, Joan Biskupic, of CNN, and Adam Liptak, of the Times, have quizzed Breyer on his plans. Breyer has not been keen to provide answers, but he told Liptak recently that he doesn’t plan to stay on the bench until he dies and wants to avoid his replacement overturning his judicial legacy. “I’ll make a decision,” he said.
- The view from Texas: The editorial boards of major news organizations in Texas have condemned the abortion ban. The Austin American-Statesman charged that it uses “harassment to bypass the rule of law.” The Fort Worth Star-Telegram called it an example of conservative hypocrisy. “Think of Texas and one of the first things to come to mind is its unique shape—those iconic curves that we stamp, brand and mold onto anything we can think of, from tortilla chips to cutting boards to extravagant hotel swimming pools,” the editorial board of the Houston Chronicle wrote. “You can add one more to the list that you’ll never find among the kitsch at Buc-ee’s: a Texas-shaped coat-hanger. The connotation of the image being shared widely on social media is chilling, and its symbolism isn’t lost on anybody who lived through, or at least has read about, a time when women didn’t have access to safe, legal abortion.”
- #PsakiBomb: Yesterday, during a press briefing at the White House, Owen Jensen, a reporter for a Catholic news organization, asked Jen Psaki, the White House press secretary, why President Biden supports abortion “when his own Catholic faith teaches abortion is morally wrong.” Psaki replied that Biden believes in a woman’s right to choose what she does with her body. Jensen followed up, “Who does he believe, then, should look out for the unborn child?” Psaki told Jensen, “I know you’ve never faced those choices, nor have you ever been pregnant.” Jensen tried to cut back in; Psaki told him “You’ve had plenty of time today” and moved on to a different question.
- The tech angle: Protocol’s Issie Lapowsky reports that the Texas ban’s prohibition on “abetting” illegal abortions will put social-media platforms in a bind, forcing them to figure out “what they will do if, in the process of one of these lawsuits, they receive a legal request for user data” seeking to identify those promoting abortion rights and services. Tech platforms are protected from legal liability for users’ posts, Lapowsky writes, but regularly comply with legal orders asking for user data. Elsewhere, Mike Masnick writes, for Techdirt, that the abortion ban would seem to contradict another law that Texas just passed, clamping down on content moderation on social media—Facebook, per Masnick, “might face liability for both leaving up and taking down information about abortions.”
- The abortion story: In May, after the Supreme Court agreed to take the Mississippi abortion case challenging Roe v. Wade, Kyle Pope, CJR’s editor and publisher, spoke with Maria Clark, a Louisiana-based healthcare reporter with USA Today, and Jessica Mason Pieklo, of Rewire News Group, about abortion coverage on The Kicker, CJR’s podcast. You can listen here.