The Supreme Court’s blatant manipulation of its “shadow docket” last week in the Texas abortion case was outrageous. Through the shadow docket, the court does not need to hear oral argument or read regular legal briefs, and the current court sets records in thereby ducking traditional legal processes.

It thereby allowed Texas to proceed immediately to implement its anti-abortion law. It includes a new, frightening enforcement method, reminiscent of authoritarian regimes, as Texas encourages and will reward neighbors to spy and report on their neighbors’ very private matters. This shadow docket usage simply cannot be reconciled with the court’s shadow docket invocation last November to halt New York’s pandemic health regulations — though the regulations were not even in effect.

The current court generally is more subtle, however. It tends to create openings for future development. The last term’s final full opinions are good illustrations. By two 6-3 votes, the court upheld Arizona’s voting restrictions, but invalidated California’s requirement that nonprofits disclose the names of major contributors.

The court’s approach to burdens on constitutional rights cannot be reconciled: The justices agreed that Arizona had placed new burdens on the fundamental right to vote, yet they upheld the new restrictions. But the court invalidated California’s disclosure requirement, finding it overly burdened freedom of association — though there was no record of actual burdens. (Nonprofits already had to gather and submit the same information to the IRS.)

The so-called “conservative justices” approach burdens on constitutional rights differently. They are unquestionably result-oriented. A burden can have incredible lightness of being when voting is at stake, yet the burden becomes hypothetically heavy when the right involves donations to influence politics and policy.

In fact, acceptance of new burdens on voting is sadly familiar: It echoes the court’s acceptance of devastating restrictions on abortion rights as not “undue.” Nearly everyone knows Roe v. Wade (1973). Much less well-known is Planned Parenthood of Southeastern Pennsylvania (1993), which replaced Roe’s analysis with an “undue burden.” The court ever since has been remarkably accepting of varied heavy burdens on a woman’s right to choose. The majority of current justices seem never to have encountered any burden on abortion they consider “undue.”

Mississippi’s Dobbs abortion case was already docketed for the court’s October term. Along with the new Texas law, the justices seem anxious to uphold ever greater burdens on a woman’s right to choose — if the right survives at all.

Ready acceptance of Arizona’s new burdens on voting is also ominous. New state voting restrictions are flourishing — though Hawaii actually broadened voting access. The right to vote has been — and ought to be — among our most fundamental rights. Historically, and often with direct Supreme Court complicity, many states have used facially neutral regulations to impose diabolically effective barriers to voting. This made the federal Voting Rights Act (1965) so vital.

“If a single statute represents the best of America,” Justice Elena Kagan stated in her ringing, stinging dissent in the Arizona case, “it is the Voting Rights Act.” Yet it was Chief Justice John Roberts’ extremely dubious invalidation of that Act’s preclearance provision in Shelby County (2013) that the late Justice Ruth Bader Ginsburg aptly likened to “throwing away your umbrella in a rainstorm because you are not getting wet.”

In the new Arizona decision, Justice Samuel Alito’s majority opinion noted: “After all, every voting rule imposes a burden of some sort.” In then constructing an extremely slippery doctrinal slope, the court blessed Arizona’s requirements that people vote in the correct precinct or have their ballots destroyed, and Arizona’s prohibition on the delivery of “bundled” ballots. The court embraced “facially neutral … regulations that have a long pedigree or are in widespread use in the United States.” Tragically, however, the “long pedigree” of “facially neutral” voting restrictions “in widespread use” includes hundreds of laws whose implementation has denied millions of African Americans, and others, the right to vote.

The court’s invalidation of California’s disclosure requirement further underscores its propensity to subordinate reality to its own priorities, again garbed in “undue burden” camouflage. The right at issue was the First Amendment freedom of association, and ironically Chief Justice Roberts’ opinion relied heavily on successful challenges to “neutral” state laws, such as Alabama’s 1950s statute invoked to force disclosure of NAACP membership and donor lists.

In the California case, by contrast, two well-funded conservative advocacy nonprofits invited the court to imagine possible burdens on their donors’ freedom of association rights. The majority held that California’s disclosure rule “imposes a widespread burden on donors’ associational rights” — and struck it down.

To summarize, the court protected the right of wealthy people to donate anonymously, though any burden remained hypothetical — while it simultaneously signaled that it remains poised to accept burdens on voting rights, in ways that parallel allowing severe real-world limits on abortion rights. By ignoring devastating history and directly relevant facts, the court is also ready to allow seemingly neutral new burdens to pulverize the fundamental right to vote.

Aviam Soifer is a law professor and former dean of the William S. Richardson School of Law, University of Hawaii-Manoa (2003 to 2020).