Instead, courts—up to and including the US Supreme Court—opted to preserve their own hides by punting on cases through procedural dismissals.
Democrats in the Senate understood perfectly the situation and raised discussions of court-packing as a way to intimidate further their co-equal judicial counterparts.
Only 25 election cases thus far have been decided on their merit—and, of those, Trump and his allies have won 18 (72%).
Yet, the rhetoric coming from the partisan Left cited the court decisions as confirmation that Trump’s challenges were baseless and debunked—all the while parroting bureaucratic claims, contrary to the evidence, that “The November 3rd election was the most secure in American history.”
In what is sure to become a favored talking point in the leftist media echo-chamber as Democrats re-ratchet-up their court-packing calls, Durbin conspiratorially claimed that the high court’s razor-thin advantage for conservatives was leading it to pursue a “shadow-docket.”
Ignoring many recent decisions in which so-called conservative justices sided with Democrats, Durbin, the current chair of the Senate Judiciary Committee, threatened to hold new hearings to put the court in its place for daring to decline cases that involved his list of priorities.
It was unclear whether he planned to drag the justices before Congress to testify, much as his Democrat colleagues in the House have threatened to target Republican members of Congress during their highly partisan Jan. 6 inquisition.
Durbin specifically griped about the court’s refusal this week to hear a case challenging a Texas law that establishes new legal liabilities for abortion providers who operate after a fetal heartbeat is detected.
The justices ruled in a 5–4 decision (Chief Justice John Roberts joined the court’s leftist bloc in the dissent) that the pro-abortion plaintiffs failed to meet the high legal bar for adjudication.
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” said the unsigned majority ruling.
“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,” it added.
Democrats complained, though, that the non-decision was a de-facto victory for the pro-life defendants and that the law, in this case, undercut longstanding abortion protections established by Roe v. Wade.
Even though there is no evidence of a rigid ideological bent on the court (at least, not in its conservative wing), Durbin further denounced what he saw as a pattern of similar non-decisions favoring the Right.
“This followed shadow-docket decisions last week overturning the Biden Administration’s COVID-19 eviction moratorium and rejecting the Administration’s decision to repeal the Trump Administration’s ‘Remain in Mexico‘ program.”
Ironically, both examples reflected overreach on the part of the Biden administration in attempting to implement fiats through executive order that flouted the standing laws on property rights and border security, respectively.
The eviction moratorium was a particularly egregious abuse of power, given that the court had generously afforded Congress the opportunity to amend the legal issue by passing its own legislation—which it declined to do.
Yet, Durbin continued to play legal games by hypocritically cherry-picking the perceived affronts to leftist overreach and claiming that the court, by rebuffing them, had abused its own authority.
“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” he whined.
“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,” Durbin further claimed. “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.”
Alarmingly, even the court’s radical Obama-appointed justices seemed willing to play ball with the Democrat talking points.
In her dissent of the Texas decision, Justice Elena Kagan wrote that it “illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process.”
Kagan, herself, seemed to validate Durbin’s oversight threats by suggesting that the politicized judiciary process had begun to spiral out of control.
“In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more un-reasoned, inconsistent, and impossible to defend,” she claimed.