I hate writing that: "SCOTUS is a problem".
One of the main bulwarks in preserving a democracy is an independent judiciary. If the bad guys convince people that's fucked up, then they're miles closer to their goal of tearing it all down and replacing it with plutocratic rule.
My paranoid suspicions about The Plutocracy Project get really complicated when I think that by acknowledging what seems obvious, I could playing into the bad guys' hand. "They" need me to think SCOTUS is the problem, so I'll be more willing to let somebody throw it over in favor of something they say will be better, but I'm so totally convinced is bound to be vastly worse.
Which puts me back to my default: The bad guys are gunning for my democracy, with the usual playbook.
- Fuck up some government thing
- Wait, while DumFux News amplifies it, stoking the rabble
- Point at it and say, "Oh look - wow - it's really fucked up. Vote for me and I'll fix it for you"
The main thing that has to be achieved in order to topple a government is to make people lose faith in that government. And in this case, we're not talking about just changing the guys running the government - we're talking about shit-canning democracy and changing over to a plutocratic regime where government does nothing but protect corporate assets abroad, keep people in line here in USAmerica Inc, and settle contract disputes among the Controlling Interest Class.
So guess what - SCOTUS is all fucked up. Or so people think - and it seems they're correct. At least for now. Maybe. Remains to be seen. Or not.
Shit makes my head hurt.
We have to keep reminding ourselves to defend the institution by politically moving against the people who're fucking it up.
Justice Clarence Thomas has gotten the attention of late due to questionable ethics. But it’s high time Justice Samuel A. Alito Jr. received the scrutiny he deserves. Alito’s dissent in the mifepristone case has served up yet another example of his intemperate, partisan rhetoric.
On Friday, the Supreme Court instituted a stay that could last well over a year (until a final decision from the high court on the merits) in a case brought by forced-birth advocates to ban the safe and effective abortion and miscarriage drug mifepristone. While the action temporarily suspends a preposterous opinion from U.S. District Judge Matthew J. Kacsmaryk reversing the Food and Drug Administration’s two-decades-old approval of the drug (at the behest of certain antiabortion doctors and groups), the decision was not unanimous. Alito and Thomas would have allowed the indefensible ruling by a panel of the U.S. Court of Appeals for the 5th Circuit to stand.
In the rush to celebrate the failure of medical zealots (this time) to dredge up an antiabortion activist in robes to countermand the FDA, Alito’s dissent shouldn’t be ignored, for it perfectly encapsulates the degree to which he’s become “unmoored from reason,” as legal scholar Norman Eisen tells me.
The opinion is so lacking in judicial reason and tone that Supreme Court advocates and constitutional experts with whom I spoke were practically slack-jawed. They cite a batch of objectionable arguments and remarks in his dissent.
First, Alito’s dissent begins with an extended, bitter and unnecessary rant about the shadow docket (the use of emergency rulings that have major policy consequences without the benefit of full briefing). He has railed at critics before, but now he cannot restrain himself from venting in an actual opinion. He goes on at length to recall the accusations, choosing to single out a warning against overuse of the motions docket from none other than Justice Amy Coney Barrett. (That alliance might be on the rocks.) It’s entirely irrelevant to the matter at hand and, as with so much of Alito’s writing, utterly intemperate.
But it gets much worse. Alito has the temerity to assert that there would be no irreparable injury in denying the stay because “the Government has not dispelled legitimate doubts” — by whom? where does this standard come from? — “that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.” This unprecedented attack on the government’s obedience to court rulings — based on nothing — is out of order. There is zero evidence — stray pundits and legislative backbenchers don’t count — that the Biden administration would essentially put itself in contempt of court.
Moreover, Alito’s dissent demonstrates that he does not care one whit about the women affected if the drug were suddenly made unavailable. (At least he’s consistent; he also utterly ignored the interests of women in Dobbs v. Jackson Women’s Health Organization, giving them no weight in contrast to the seemingly inviolate interest of states in commandeering women’s reproductive choices.) Their irreparable harm doesn’t register.
Next, consider Alito’s hypocrisy in accusing the government of “leveraging” (i.e., judge shopping) by going to a court in the 9th Circuit to obtain a contrary opinion, thereby setting up a conflict between circuits. It takes some nerve to make that accusation, given how the case began when antiabortion activists searched out a single-district division in Amarillo, Tex., where they were certain to draw a judge who embraces their cause.
Finally, Alito dishonestly asserts that a stay isn’t needed because this will all get decided quickly at the 5th Circuit or at the Supreme Court — probably in the government’s favor. (“Because the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek — from either the Court of Appeals or this Court — in the near future if their arguments on the merits are persuasive.”)
First, even if it is a matter of days or weeks, women denied the medication will of course be harmed. (See above: Women’s interests don’t count.) Second, any appeal to the Supreme Court and resolution on the merits will take months and months. This simply will not be all wrapped up, as he suggests, “in the near future.” Third, the far-right 5th Circuit is almost certain to rule against the government, so relief will not be forthcoming from that court. And finally, Alito already (prematurely and utterly improperly) seems to tell us that the Supreme Court is going to toss the case. We can only surmise that his fellow justices left him under no illusion that this case will succeed as a backdoor to a national ban on medical abortions.
Looking at the entirety of Alito’s dissent, constitutional scholar Leah Litman reels off the outrages, including the plaintiffs’ sprint to Amarillo, the “whataboutisms” in the shadow docket and the “willful blindness to the effects of the Fifth Circuit ruling.” She adds, “It reads like a Fox News grandpa’s rant.” She points to the irony that the author of Dobbs, which stressed the role of states and elected branches, now is “most eager to support federal courts ordering bans on medication abortion protocols.”
“There is some real chutzpah,” she adds.
It’s interesting that this judicial travesty came after the delay in releasing the decision (originally due Wednesday), possibly as a courtesy to Alito from his colleagues. Next time, for the sake of the court, the rule of law and even Alito, the court might not give him the time he needs to embarrass himself.
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