The Senate Judiciary Committee announced Friday that it plans to hold a hearing examining Texas’ six-week abortion ban and the controversial, expedited Supreme Court procedure that allowed it to take effect this week.
The hearing — for which a date and witnesses have not been announced — is one of several fronts where Democrats are pushing back on the Texas abortion ban and on the conservative Supreme Court majority that let it go into force, despite its violation of the precedent set by the 1973 Roe v. Wade decision.
The growing political response drags the court further into the partisan brawl that Chief Justice John Roberts has desperately tried to avoid in his stewardship of the court. Roberts dissented from the conservative majority that refused to block the Texas law.
“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said in a statement. “This anti-choice law is a devastating blow to Americans’ constitutional rights — and the Court allowed it to see the light of day without public deliberation or transparency.”
The hearing will examine the Supreme Court’s use of the so-called “shadow docket,” the nickname for emergency actions taken by the court that do not go through the full briefing and hearing process of a formal opinion.
By a 5-4 vote, the court just before midnight Wednesday issued an order that declined a request by abortion clinics that the justices block the Texas law, which was designed specifically with the aim of complicating the legal process by which federal courts weigh blocking laws before they go into effect.
The order came on the heels of two other major shadow docket orders the justices issued last month: one requiring the Biden administration to revive a Trump-era immigration policy and another throwing out the Biden administration’s eviction moratorium.
“At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative Court’s abuse of the shadow docket,” Durbin said in the hearing announcement, which also referenced a sharp dissent Justice Elena Kagan issued that criticized how the conservative majority has been using the shadow docket.
In addition to Senate Democrats’ plans to scrutinize the court’s action in the Texas case, President Joe Biden said Thursday that his administration was mounting a “whole of government” response “to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions.” Attorney General Merrick Garland also said the Justice Department was “evaluating all options to protect the constitutional rights of women, including access to an abortion.”
Still, Democrats are limited in their ability to deploy a legislative response that would protect abortion rights in the light of the Supreme Court’s lurch towards curtailing them. Democrats do not have the numbers in Congress to pass a bill that would create national, statutory protections around abortion access.
Nor do Democrats have the votes for the types of reforms to the Supreme Court that progressives have been pushing. Biden launched a commission to study those reforms after promising such a commission during the campaign, to deflect calls that he vow to expand the court.
The political response campaign being launched by Senate Democrats to scrutinize the inner workings of the court is not without precedent. After the Supreme Court handed down major rulings in 2015 in favor of same-sex marriage and upholding Obamacare, the then-GOP led Senate Judiciary Committee held a subcommittee hearing titled, “With Prejudice: Supreme Court Activism and Possible Solutions.”
During it, witnesses proposed mechanisms to remove judges and allow opportunities to override Supreme Court rulings.
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