On September 29, in an NYU Law Forum sponsored by Latham & Watkins, an expert panel previewed the upcoming US Supreme Court term, which involves major cases concerning abortion, gun control, and immigration.
Melissa Murray, Frederick I. and Grace Stokes Professor of Law, moderated the panel, which included CNN legal analyst Joan Biskupic; Latham partner Roman Martinez, a member of the firm’s Supreme Court & Appellate Practice; and Professor Troy McKenzie ’00, who teaches the Supreme Court Seminar.
Panelists noted that the Court faces increased public controversy over its role. Among other issues, they discussed the Court’s “shadow docket,” which encompasses expedited rulings issued without public arguments or expansive written opinions. A prominent recent example was the 5-4 ruling in which the Court declined to stay SB 8, a controversial Texas law banning most abortions after six weeks of pregnancy.
Selected remarks from the event:
Troy McKenzie: “The term [‘shadow docket’] was popularized by a piece written by Professor Will Baude at a symposium here at NYU….that he eventually published in the Journal of Law & Liberty here…. He put the shadow docket cases into two broad categories, and I think they kind of capture the concerns. One, he said, were cases in which the Court was enforcing its supremacy. There’s a recalcitrant lower court, the law is really clear…. The other he calls ‘lightning bolt’ cases. One problem with the recent rise of more cases on the shadow docket is that the categories seem to be scrambled now…. You could say that there are novel and difficult questions that are being handled as though they have already been resolved, without the full briefing and argument.” (video 36:49)
Joan Biskupic: “When we first knew that they were going to take the Mississippi case [concerning a law banning abortions after 15 weeks] and it was going to be argued sometime this fall…we thought, you know, ‘Let’s see what they do to that kind of a ban,’ but the Texas one has seemed so dramatic in comparison that, frankly, it has changed my prediction. They seem readier to do something faster…. The legal issue turns on the viability question. In Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, the Supreme Court set as sort of a cutoff for government regulation when a fetus would be able to live outside the womb…. Both of these laws challenge…the fundamental principles of Roe v. Wade and Planned Parenthood.” (video 43:55)
Roman Martinez: “I think there are people out there that are trying to create a legitimacy crisis and frankly, trying to delegitimize the Court…. I think the people on the Court are trying to defend themselves and say that ‘We are legitimate and we are independent.’ One of the things that’s been heartening from the justices is the fact that it hasn’t been just justices of one side or another…. I think the concerns and the efforts to delegitimize have come predominantly from the left… [although] I think President Trump didn’t really help things much by essentially treating the justices, or talking about them as though he thought they should be loyal to him because he appointed them, and that’s obviously not how they have seen themselves.” (video 1:08:07)
Watch the video:
Posted October 19, 2021