'Lawless behavior': Legal experts say the Supreme Court acted out of 'political motivations' in upholding Texas' abortion ban

supreme court justices brett kavanaugh and amy coney barrett
Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the 59th Presidential Inauguration on Jan. 20, 2021. Jonathan Ernst/Pool Photo via AP
  • Critics are ripping into the Supreme Court's recent decision to uphold a Texas abortion law.

  • Legal experts said that the criticism is warranted. One called the court's behavior "lawless."

  • The court is due to consider the constitutionality of abortion in a major case this term.

  • See more stories on Insider's business page.

The Supreme Court opened the door to fierce backlash when a narrow majority of justices in a ruling last week upheld a strict Texas law that bans abortions after six weeks of pregnancy.

From President Joe Biden to advocacy leaders, critics have knocked the court's decision, arguing it flouts the constitutional right to an abortion established nearly 50 years ago under Roe v. Wade. That Supreme Court decision, along with other major abortion rulings since, protect the right to an abortion until pre-viability, or the point when a fetus can survive outside of the womb, which most experts say occurs around 24 weeks of pregnancy.

The court's refusal to block the Texas law "unleashes unconstitutional chaos," Biden said last Thursday, hours after the decision was handed down. The Department of Justice filed a lawsuit this week in an attempt to block the six-week abortion ban.

"This is the loudest alarm yet that abortion rights are in grave danger, in Texas and across the country," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in response to the ruling.

Some legal experts, too, have piled on the criticism. They argue that the Supreme Court justices, who are meant to behave as interpreters and appliers of the law, instead conducted themselves as partisan lawmakers in the Texas decision.

"Our court is broken. I mean, it's more of a political institution than it is a legal institution," Barry McDonald, a law professor at Pepperdine University Caruso School of Law, told Insider, adding that the Texas law is "flagrantly unconstitutional."

The Texas decision came via a little-known process called the 'shadow docket'

At midnight on September 1, a Texas statute that bans abortions after six weeks of pregnancy, a time when many people do not yet know they are pregnant, went into effect. The law makes no exceptions for cases of rape or incest and invites private citizens, rather than state officials, to enforce the ban.

It was not until 24 hours later when the Supreme Court responded to a request from abortion providers in the state to block the law. The court declined the appeal, and handed down its 5-4 opinion via a little-known process dubbed the "shadow docket."

The shadow docket, a term coined by University of Chicago law professor William Baude in 2015, refers to the range of decisions the Supreme Court makes that fall out of line with its normal routine. Unlike the lengthy process the court uses to decide 60-70 major cases per term, these shadow docket rulings are usually short, unsigned and could come before any oral arguments take place before the court, as was the case with the Texas decision.

Supreme Court building
The US Supreme Court building in Washington, DC, is seen at sunset. AP Photo/Manuel Balce Ceneta, File

Traditionally, the court uses the shadow docket for procedural purposes - to accept or deny applications for emergency action - in typically small, uncontroversial cases. But in recent years, the court's use of the shadow docket has sparked outrage over what critics describe as increasingly partisan and unsubstantial rulings, including now in the Texas abortion case.

"In the abortion case, it's not only short, it's just a jumble of nonsense," Richard Pierce, a law professor at the George Washington University Law School, told Insider of the court's opinion. "It's incoherent. The reasoning makes no sense at all."

The court's majority, in an unsigned opinion, argued that its ruling was technical and not based on the substance of the Texas law, which could still be legally challenged.

"In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts," the majority wrote.

Yet experts dispute the court's decision-making. "That's lawless behavior," Pierce said.

"It just concerns me tremendously," he added. "To me, the court should never take any action without providing a full set of reasons, telling us why it acted as it did. And the court has not been doing this in these cases that are referred to as the shadow docket."

"It's stunning," McDonald said of the court's ruling. "It just adds to this perception that the court is acting out of political motivations as opposed to impartial and objective application of legal principles."

'I would be surprised' if the Supreme Court chooses to overturn Roe

It's unlikely that the Supreme Court will consider the Texas law on its merits any time soon. But the nine justices are due to review the constitutionality of abortion this upcoming term in a major case that could threaten Roe v. Wade. The case, Dobbs v. Jackson Women's Health Organization, concerns a Mississippi law that would ban nearly all abortions after 15 weeks of pregnancy.

How the justices choose to decide that case is unpredictable, experts say. Conservative Justices Samuel Alito and Clarence Thomas, along with President Donald Trump's three appointees, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, voted to uphold the Texas six-week abortion ban.

Neil Gorsuch
Judge Neil Gorsuch speaks in the East Room of the White House in Washington, Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court. AP Photo/Carolyn Kaster

Still, it's tough to determine whether those justices would go as far as to throw out Supreme Court precedent dating back to 1973.

"I would be surprised if, in the Mississippi case, even the five hardcore conservatives on the court would be willing to overturn Roe and Casey," McDonald said, referring to the 1992 Supreme Court ruling, Planned Parenthood v. Casey, which affirmed Roe.

"But they might move the goalpost viability to earlier in the pregnancy," he continued.

"I don't have any doubt that six of those justices, the six conservatives, would not have signed the Roe v. Wade opinion and disagree with the Roe v. Wade opinion," Pierce said. "But that's not same as saying that they're prepared to overrule it. The court, for some pretty good reasons, is reluctant to overrule a long-standing precedent of that height."

The court's decision is expected to come next summer. In the meantime, however, a slew of Republican-led states are moving to enact their own versions of Texas' six-week ban in an effort to restrict access to abortion across the nation. Texans seeking to get an abortion are already trying to book appointments for the procedure outside of the state.

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