Next Term
The next term began on Monday, October 4, 2021. With the considerable current activity in the Shadow Docket, there was not much of a summer break. The coming term looks extraordinary. The headline case is an abortion case from Mississippi, Dobbs v Jackson Women’s Health Organization.25 The legal question is the constitutionality of Mississippi law that prohibits most abortions after 15 weeks of gestation. The Texas abortion law will also be back before the Court. As we saw this term, big cases may produce very narrow results, but this case has the potential for being a notable abortion decision.
In a different case the Court will decide whether a state attorney general can step in to defend an abortion law when the state health secretary does not do so.26
The Court also has accepted 3 cases dealing with reimbursement for health services. One deals with whether or not the Department of Health and Human Services can set reimbursement rates without good survey data regarding costs,27 another involves the calculation of additional payments for hospitals that serve a “disproportionate number of low-income patients,”28 and the third whether state Medicaid programs can take funds from an injured beneficiary’s tort recovery to cover future Medicaid costs.29
In other cases, the Court will review a gun control law from New York. The Court’s earlier Second Amendment cases involved guns in the home used for self-defense, but this case raises the question of whether a state can practically preclude “concealed-carry licenses.”30 Many experts believe the Court will accept a case dealing with racial preferences in college admissions, perhaps the Harvard case in which the claim is discrimination against Asian Americans.31
The ACOG mifepristone case was interesting, in part because the federal district court issued a nationwide injunction against the Americans with Disabilities Act, enforcing its rules anywhere in the country. The effect of these orders is for a single district judge to create the “law of the land,” at least until that is reviewed—which can take months. The advantage of the nationwide injunction is that it avoids having to repeatedly litigate the same issues in multiple courts around the country. The downside is that plaintiffs can seek out a nonrepresentative judge or circuit and receive an injunction that would be granted by few other circuits. In addition, a nationwide injunction can apply to specific circumstances that are not before the court issuing the injunction. In the mifepristone case, for example, 10 states requested to intervene in the ACOG case. The court rejected the request, but the nationwide injunction applied to those states.1
Although federal judges have had the authority to issue nationwide injunctions for years, they are becoming much more common. One reason is the ease of forum shopping noted earlier—organizations can cherry-pick district courts and circuits sympathetic to their views. Both left- and right-leaning organizations have learned this lesson, so left-leaning groups are likely to file in specific districts in the Ninth Circuit, and right-leaning groups to districts in the Fifth Circuit.
If the current trend of increasing nationwide injunctions continues, either the rules for the federal courts or congressional action may be required to reduce some of the abuses by both sides of the political spectrum.
District court “nationwide injunctions”
The ACOG mifepristone case was interesting, in part because the federal district court issued a nationwide injunction against the Americans with Disabilities Act, enforcing its rules anywhere in the country. The effect of these orders is for a single district judge to create the “law of the land,” at least until that is reviewed—which can take months. The advantage of the nationwide injunction is that it avoids having to repeatedly litigate the same issues in multiple courts around the country. The downside is that plaintiffs can seek out a nonrepresentative judge or circuit and receive an injunction that would be granted by few other circuits. In addition, a nationwide injunction can apply to specific circumstances that are not before the court issuing the injunction. In the mifepristone case, for example, 10 states requested to intervene in the ACOG case. The court rejected the request, but the nationwide injunction applied to those states.1
Although federal judges have had the authority to issue nationwide injunctions for years, they are becoming much more common. One reason is the ease of forum shopping noted earlier—organizations can cherry-pick district courts and circuits sympathetic to their views. Both left- and right-leaning organizations have learned this lesson, so left-leaning groups are likely to file in specific districts in the Ninth Circuit, and right-leaning groups to districts in the Fifth Circuit.
If the current trend of increasing nationwide injunctions continues, either the rules for the federal courts or congressional action may be required to reduce some of the abuses by both sides of the political spectrum. Reference Am. Coll. of Obstetricians & Gynecologists v. United States FDA, 467 F. Supp. 3d 282, 284 (D. Md. 2020).
Reference
1. Am. Coll. of Obstetricians & Gynecologists v. United States FDA, 467 F. Supp. 3d 282, 284 (D. Md. 2020).
The “Shadow Docket”
The ACOG mifepristone decisions do not appear on the Supreme Court’s “Court Opinions” website.1 They appear in what has become known in recent years as “The Shadow Docket,” an informal term that includes many orders of the Court and statements of individual justices regarding some cases.2 There are hundreds of orders by the Court each Term, there is nothing particularly shadowy about any of these items—they are all publicly available on the Court’s website and later in paper format. It is, however, a little harder to find and much harder to sort through than the major opinions. In some cases, it is not possible to tell what the vote was, how each justice voted, and what the reasoning of the Court was. In a few cases it is difficult to know exactly what the Court was holding or otherwise leaves some confusion about what the law actually is.3
The part of the Shadow Docket that is most intriguing for commentators, and where the ACOG cases appear, is the “Opinions Relating to Orders.”4 These are a variety of opinions, some written by the Court and many by individual justices. It also includes the action of the Court in some cases in which there was not full briefing or oral argument. The statements by justices often are to dissent from the denial of cert of decisions of the Court. These opinions have become much more common over the years. In this past term, there were approximately 60 such opinions related to about 50 cases. In part, this relates to the number of pandemic cases that could not wait for a Court decision going through the extended ordinary process. Although the Shadow Docket has been of interest to academic observers and Court watchers for years, this year it has attracted the attention of Congress.5
References
1. Opinions of the Court. Supreme Court website. https://www.supremecourt.gov/opinions/slipopinion/20#list. Accessed October 10, 2021.
2. Baude W. Foreword: the Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015).
3. Vladeck SI. The Solicitor General and the Shadow Docket, 133 Harvard Law Review. 123 (2019).
4. Opinions relating to orders. Supreme Court website. https://www.supremecourt.gov/opinions/relatingtoorders/20#list. Accessed October 10, 2021.
5. The Supreme Court’s Shadow Docket: Hearing Before the Subcommittee on Courts, Intellectual Property and the Internet of the H. Committee on the Judiciary, 117th Congress (2021).