SCOTUS justices have seemed unfazed, indeed, contemptuous, of the American public’s plummeting respect for them and the high court.  That defiant disregard is most apparent with Justices Thomas and Alito, though occasionally acknowledged by Justices Sotomayor, Gorsuch and the Chief.

But Alito’s action in the Mifepristone matter this week may reveal new awareness and sensitivity to the Court’s steep decline in public esteem.  And it will provide a mechanism for Alito and his hard right brothers and sister to push back.  We not only predict that, but think that is Alito’s intention.

The Mifepristone war, you thought had concluded with a 2024 SCOTUS ruling that opponents of the “abortion pill” had no standing to seek restrictions on the way it was prescribed, tele-medically and delivered, by mail.  But this year new anti-choice activists convinced the right-leaning U.S. Court of Appeals for the 5th Circuit to ban those forms of access to the medicine used in 60 percent of U.S. abortions.

On May 4, Alito, who handles emergency applications in the 5th Circuit, issued an administrative stay of the Circuit Court’s ruling, that temporarily preserved the status quo ante.  Temporary until next week when the full court will decide whether to continue maintenance of that status quo until the Court receives merits briefing, hears oral argument and renders a final decision supported and opposed by numerous concurring and dissenting opinions.  There will be many in this case.

My prediction is that next week the full Court will maintain Alito’s stay, continuing full access to Mifepristone, despite my prediction that it is unlikely to rule against the anti-abortionists when it rules on the merits during the October 2026 SCOTUS term.

Regardless of how that final merits decision comes out, the Court’s right wing super-majority will have demonstrated, if only in their own minds, and will argue in their subsequent speeches and writings, that the Court’s use of the “shadow docket” procedures is necessary, principled and evenhanded.  And not, as many believe, wielded by them as a powerful tool to not merely facilitate Trump’s “dirty deeds done dirt cheap” but to do so on an expedited basis.

The use of the shadow docket, a pejorative term used for what formerly was called the “emergency” or “interim relief” docket, was as rare as a full-frontal eclipse until 2016.  Before then it was sparingly used, when a lower court ruling created havoc by changing something important and established.  Using emergency docket procedures, the Court would stay that lower court ruling until it could render a full decision on the merits.  But beginning a decade back, the Court led by Chief Justice Roberts halted President Obama’s massive Clean Energy Plan before the Full Monty of briefing, argument and decision.  After that watershed moment in 2016 the Court frequently and preemptively halted Obama and Biden initiatives but using those same emergency procedures permitted Trump initiatives to go forward before full briefing, argument and decision – and they did this despite lower court rulings that these Trump actions were statutorily or constitutionally invalid.  For example, the Court allowed Trump’s first patently unconstitutional Muslim nation travel ban to remain in effect until their full merits ruling confirmed its obvious unconstitutionality.  We think the Court will attempt to erase the memory of their many abuses of the shadow docket next Monday.  I will be watching and recommend you do that as well.  And if my prediction is correct, my readers may plead “please, please it’s too much winning we can’t take it anymore.”