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Justice Breyer Says Supreme Court Upholding Texas Abortion Ban Was 'Very, Very Wrong'

Justice Stephen Breyer said of the number of emergency decisions: "It's a huge mistake to decide major things without the normal full argument."
Elizabeth Gillis/NPR

U.S. Supreme Court Justice Stephen Breyer described as "very, very, very wrong" the court's recent refusal to block a Texas law that has the effect of banning abortions in the state after about six weeks.

"I wrote a dissent — and that's the way it works," he told NPR legal affairs correspondent Nina Totenberg in an interview in Boston.

The unsigned 5-4 decision — in which three Trump-appointed justices joined two other conservative justices — left open the option for abortion providers to challenge the Texas law in other ways in the future, meaning the case possibly — or even likely — will return to the Supreme Court, though not for months or longer.

Breyer noted that the court's decision was procedural, "and so we'll see what happens in that area when we get a substantive matter in front of us."

The Texas statute is at odds with the Supreme Court's precedents on abortion. Breyer was joined in the dissent by the court's other two liberals and conservative Chief Justice John Roberts.

The ruling in the Texas case was part of what court watchers have labeled the "shadow docket" — cases decided rapidly, as opposed to the deliberative process applied during the regular term, because the court considers them an emergency.

The number of cases deemed emergency has ballooned since the Trump era.

An analysis of the court's current term, which ends Oct. 3, by Steve Vladeck, a professor at the University of Texas School of Law, found that the court handed down 68 orders on its shadow docket "from which at least one Justice publicly dissented."

"In *none* of those dissents has a Justice to the right of the Chief Justice joined a Justice to his left," Vladeck wrote on Twitter. "That's stunning."

Breyer told Totenberg that the court's opinions overall are "more mixed than you suggest," with liberal and conservative justices in agreement, but in reference to the shadow docket, he said: "It's a huge mistake to decide major things without the normal full argument."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Krishnadev Calamur is NPR's deputy Washington editor. In this role, he helps oversee planning of the Washington desk's news coverage. He also edits NPR's Supreme Court coverage. Previously, Calamur was an editor and staff writer at The Atlantic. This is his second stint at NPR, having previously worked on NPR's website from 2008-15. Calamur received an M.A. in journalism from the University of Missouri.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.