By Tom Polansek

NOTRE DAME, Indiana (Reuters) – Conservative Justice Samuel Alito on Thursday defended the U.S. Supreme Court’s increasing use of its emergency “shadow docket” to decide major political and social issues without public deliberation, saying the process has wrongly been portrayed by critics as sinister.

This process has allowed the court to rule on important matters, including the granting of Texas’s law that will place a ban on abortion effective immediately.

Alito criticized recent comments by legal professionals and critics about the shadow docket, claiming that they portray the justices in shadow as a “dangerous cabal”, secretly deciding crucial cases.

Alito was part of the court’s conservative 6-3 minority.

In recent years, the shadow docket process, intended for court emergency actions only has a profound impact on the ways the justices do business.

The shadow docket process is used by the justices to decide substantively in major cases. They do so in an rushed and often late-night fashion, which critics of all ideological stripes claim lacks transparency. In recent years, the shadow docket has produced some significant wins for conservatives.

Alito explained that the truth is, there were no new or unusual procedures in these cases.

Alito said some opponents of Texas’ 1973 Roe vs. Wade verdict that legalized abortion in the United States had claimed the Texas Supreme Court overruled it.

We have not nullified Roe V. Wade, but we can make the false and inflamatory claim. Alito stated that we did not do such a thing.

Alito admitted that there are more urgent applications being handled by the court than ever before, but stated that this is because the court receives more cases that need to be decided. Alito clarified that it isn’t part of an evil strategy.

Alito is the latest justice who defends the Supreme Court’s practice, even though public support has fallen in recent opinion polls.

On Wednesday, the U.S. Senate Judiciary Committee heard from the committee about the consequences of Texas’ Republican-backed abortion law. Dick Durbin who is the Democratic chair of the U.S. Senate Judiciary Committee, stated that the court had “started using the shadow docket to make more politically and controversial decisions. With results that seem ideologically motivated.”

The shadow docket was used by the Republican ex-President Donald Trump to win 28 cases. He used the emergency process more often and won more cases than any of his predecessors.

The court gave Democratic President Joe Biden two significant defeats in August using the shadow docket. The court lifted a federal ban on residential evictions related to the COVID-19 pandemic. Biden tried to withdraw a Trump-era immigration policy, which forced thousands to Mexico to await U.S. proceedings.

Alito was appointed by Republican President George W. Bush to serve a life-time job at the court in 2006. He rejected any criticisms of its processes.

Alito claimed that this portrayal is a way to infuriate and damage the court’s independence.

A Reuters analysis in July https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28 of a year of shadow docket filings found that the court repeatedly favored religious groups and Trump’s administration while denying almost 100 applications by other private individuals or groups.

Alito’s address was made on the same day as another emergency petition at the court. This time, it was submitted by New York City teachers and others seeking to stop a mandate for them to be vaccinated with COVID-19.