Professor Vladeck Offers Senate Testimony on Texas’s Abortion Ban and the Shadow Docket

Professor Stephen Vladeck testified at a Senate Judiciary Committee hearing focusing on Texas SB8 and the role of the shadow docket.

Professor Stephen Vladeck testified before the Senate Judiciary Committee on Wednesday, September 29, 2021.

The hearing, titled “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket,” examined Texas’s Senate Bill 8 (SB8), which went into effect on September 1 and effectively bans most abortions in the state, as well as the role of the “shadow docket,” through which the Supreme Court allowed SB8 to remain in effect as legal challenges to it progress.

As Prof. Vladeck explains in his written testimony, “The term “shadow docket” was coined by University of Chicago law professor Will Baude in 2015 as a catch-all for a body of the Supreme Court’s work that was, to that point, receiving virtually no academic or public attention.”

Chairing the hearing, Senator Dick Durbin (D-IL) emphasizes how the Texas law limits access to healthcare and points out its novel approach to enforcement—enabling private citizens to sue anyone who assists a person in getting an abortion— which, he asserts, was a deliberate scheme to shield the law from judicial review.

Ranking Member Chuck Grassley (R-IA) focuses on his claim that the Supreme Court’s decision not to intervene in the passing of SB8 was entirely ordinary and that the role of the shadow docket is nothing new or noteworthy.

Prof. Vladeck was the last of the witnesses to offer testimony. Building on years of careful research, he put both the Supreme Court’s 5-4 ruling in the SB8 case and the rise of the shadow docket into context, testifying that the Texas abortion decision followed a troubling pattern, and proposing some potential reforms that he believes both the Court and Congress should consider. In a speech at Notre Dame Law School the day after the Senate hearing, Supreme Court Justice Samuel Alito specifically referenced Vladeck’s testimony.

Read Prof. Vladeck’s testimony

Watch the hearing (Vladeck’s opening statement begins at around the 1 hour 11-minute mark)

Prof. Vladeck’s testimony documents the rise in several types of significant shadow docket rulings in the last few years and identifies some of the possible explanations for this uptick. He then outlines the serious concerns these developments raise.

“It’s not the volume [of shadow docket rulings] by itself, but the extent to which the court is treating these rulings as much more impactful than emergency rulings of the past,” he explains. “The court has actually now gone out of its way to chastise lower courts for failing to follow unsigned orders.” He doesn’t hesitate to claim these rulings are directly shaping state and federal policies.

He testifies that, in the specific case of SB8, “…through an array of cynical procedural contrivances, a state legislature succeeded in depriving millions of people of their federal constitutional rights.”

Also offering testimony and taking questions were the Honorable Donna Howard, Texas State Representative, District 48 and Chairwoman of the Texas Women’s Health Caucus; Fatima Goss Graves, President and CEO of the National Women’s Law Center; Professor Jennifer Mascott of Antonin Scalia Law School at George Mason University; and Edmund Gerard LaCour Jr., Solicitor General of Alabama.

“It is always an honor to get a chance to testify before Congress and to try to help the members as they think through contemporary debates and potential reforms,” Vladeck said. “But it was a special thrill to get to talk about the ‘shadow docket,’ and how these technical, obscure Supreme Court rulings are having so much more of an impact on all of our lives. I’ve been working on (and trying to raise the profile of) this issue for the better part of four years, so seeing it become a mainstream topic of interest is really redeeming.”

The Senate hearing came just a few weeks after Prof. Vladeck announced a book deal  for a trade press book on (and titled) “The Shadow Docket.” The book, to be published by Basic Books in Summer 2023, aims to shed light on the stealth Supreme Court rulings that are undermining our legal system while setting troubling new precedents on everything from abortion and immigration to religious liberty and voting rights.

Prof. Vladeck is the Charles Alan Wright Chair in Federal Courts at The University of Texas School of Law. His scholarship focuses on the intersection of constitutional law, national security law, and the federal courts. An active appellate practitioner, he has argued three cases before the U.S. Supreme Court in the last four Terms and two cases before the Texas Supreme Court during its last two Terms; and also serves as CNN’s Supreme Court analyst.