[Congressional Record Volume 167, Number 174 (Monday, October 4, 2021)]
[Senate]
[Pages S6879-S6880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S. SUPREME COURT

  Mr. DURBIN. Madam President, today is the first Monday in October. It 
is the date that marks the start of a new term for the U.S. Supreme 
Court.

[[Page S6880]]

  All indications are this term will be of major consequence. The Court 
has chosen to take up a number of cases that have the potential to 
dramatically change America as we know it. For example, the Court has 
decided to hear cases in which it is being asked to overturn Roe v. 
Wade, as well as strike down State laws regarding the carrying of 
weapons in public places. These are among the momentous issues on the 
Court's first term.
  Madam President, I would yield the floor to the leader.
  Mr. SCHUMER. Take your time. I am going to get settled.
  Mr. DURBIN. He has asked me to carry on for a little bit here.
  Back to my statement.
  These are among the momentous issues on the Court's merits docket 
this term.
  But the Court has been also very active on another docket, the 
``shadow docket.'' Most are not familiar with that term and don't know 
what it means. We learned in the Senate Judiciary Committee. It refers 
to decisions issued by the Supreme Court outside of the regular routine 
merits docket. These decisions are often rendered on a very short 
timetable without full briefing, public deliberation, detailed 
explanation, or signed opinions.
  Historically, shadow docket orders were mostly noncontroversial. They 
typically involved routine or procedural questions, such as 
establishing deadlines for parties to file briefs. But that has changed 
in recent years. Not only have the orders from the Supreme Court shadow 
docket become more substantive and controversial, they have also been 
taking an increasingly clear, ideological bent.
  Consider the weeks leading up to the start of this new October term. 
The Court's conservative majority used the shadow docket to block the 
Biden administration's COVID eviction moratorium and to reinstate the 
Trump administration's cruel ``Remain in Mexico'' policy that, 
unfortunately, blocked families and children fleeing persecution.
  The Court's majority also used the shadow docket last month to allow 
Texas law S.B. 8 to take effect, a law that effectively bans abortion 
after 6 weeks, directly violating the constitutional protections the 
Court recognized half a century in Roe v. Wade.
  These and other shadow docket orders from the Court's conservative 
Justices are having profound consequences for millions of Americans.
  Last week, the Senate Judiciary Committee, which I chair and the 
Presiding Officer has joined as a member, held a hearing on the Court's 
use of the shadow docket.
  We heard from a number of experts about the increased use of the 
docket and the increasing ideological nature of its use. They pointed 
out, for example, that President Trump's Justice Department, in 4 
years, requested the Court take emergency action on their shadow docket 
a recordbreaking 36 times in 4 years. The Court granted 28 of those 
requests.
  What about previous Presidents? In contrast, the Justice Department 
only requested emergency relief eight times total--eight times--in 16 
years of George W. Bush and Barack Obama, and on only four occasions 
was the shadow docket approved--the request was approved.
  At this point, I am going to yield the floor and ask unanimous 
consent that when I return to the floor, I be able to resume these 
remarks. But I want to yield to the majority leader.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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