(PresidentialInsider.com)- Senate Democrats, furious that the Supreme Court would not grant an emergency injunction against the Texas “Heartbeat” law are now threatening to investigate the Court over it.
The claim by Senate Democrats is the Supreme Court’s use of the so-called “shadow docket” is to blame for the Court refusing to intervene. Which, when you get right down to it doesn’t make much sense.
A refusal to issue an emergency injunction to block the law isn’t the same as making a ruling on a law through the “shadow docket” procedure.
But Democrats want to find any reason to go after the conservative majority on the Supreme Court, so invoking the “shadow docket” practice widely used since 2015 will do in a pinch.
Last Friday, Senate Judiciary Committee Chairman Senator Dick Durbin of Illinois announced that Judiciary would hold a hearing on the Court’s use of the “shadow docket.”
The term, widely misused or misapplied, refers to Court rulings that are not part of the set docket in which the justices make a ruling without receiving a comprehensive set of briefs or conducting oral arguments.
In his statement, Durbin cited what he called “this anti-choice law” that is “a devastating blow to Americans’ constitutional rights.” He claimed the Court should not have “allowed it to see the light of day without public deliberation or transparency.”
But Durbin’s accusations are based on a false premise – namely, the premise that the Court ruled on the merits or constitutionality of the law. It did not. Even in the decision not to enjoin the law, the Court said that it was not ruling on the law’s constitutionality.
The Court’s ruling expressly stated that the applicants brought up “serious questions regarding the constitutionality of the Texas law at issue.”
Durbin is tilting at strawmen here. Then again, Democrats always argue in bad faith.
The court’s decision did not deal “a devastating blow to Americans’ constitutional rights.” There is nothing in the court’s decision that prevents anyone from challenging the Texas law.
In other words, the Senate Democrats on the Judiciary Committee will be holding hearings into something that didn’t happen.