In dissenting from the Supreme Court’s procedural order suspending lower court rulings on an anti-abortion drug, Justice Samuel Alito issued an historic tirade.
Alito blasted the Biden Administration and fellow justices, while revealing both the ultimate outcome of the case and his extreme judicial partisanship.
The case began when a U.S. District Court judge in Texas overturned the Food and Drug Administration’s long-standing approval of mifepristone, an abortion drug. Then, a U.S. Circuit Court partially overruled the lower court judge, but cut the FDA authorized period for its use until it finally decides the case.
The Supreme Court temporarily suspended both rulings, allowing continued use of the drug as approved by the FDA. Alito wanted to confirm the Circuit Court position. Justice Clarence Thomas opposed the Supreme Court order without explaining his reasons.
Alito claimed that limiting the drug’s use pending a final decision would not cause anybody harm. His judgment seemingly ignored the sudden inability of some women to use a legal medication over what might be a period of many months. It is difficult to believe he did not understand that.
In his dissent, Alito forecast that the Supreme Court would later support the FDA. He interpreted the suspension of the lower court rulings as a message that the majority would reject any lower court attempt to overrule the FDA’s experts when an appeal came back to the Supreme Court. Having participated in the Court’s private discussions, he was most likely right.
Alito vented his frustration. He attacked the Biden Administration, saying “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order….” When had the president disobeyed courts orders? What made such doubts “legitimate” when they had never been raised in court? Did he pick up “doubts” from media speculation?
Supreme Court justices are expected to display a “judicial temperament.” That means they should appear calm and thoughtful, giving people confidence in their hugely important decisions. Alito blew it.
The angry jurist also charged that the suspension amounts to a major decision being made by a procedural order. This would be the so-called “shadow docket” that he had previously supported as part of a Court majority. He attacked two justices who had earlier opposed it but who now used it, he claimed. Having lost, why shouldn’t his two colleagues accept his position?
But the Court was only issuing a procedural order doing nothing more than leave the FDA ruling in place until it finally decided. It changed nothing. Alito believed the lone district judge’s unscientific decision was worthy of being observed, at least in part, until the case was finally resolved. That would have been the real “shadow docket.”
He also revealed his deep partisan bias. Earlier, in opposing liberal lower court decisions, he had forcefully urged judicial respect for FDA expertise. He had scorned a single District Court judge for issuing a nationwide order overruling the agency. Now, when it suited him to second guess the FDA, he reversed course and supported the conservative District Court’s national ruling.
Alito’s dissent highlighted several reasons why public confidence in the federal courts has reached a new low point.
The Court has allowed single District Court judges, like the conservative jurist sitting alone in Amarillo, Texas, who had made the mifepristone decision, to issue orders covering the entire country. This power is not expressly authorized by law and is relatively new. And the anti-abortion plaintiffs were able to cherry pick his court and be sure of getting a favorable decision.
Congress does not screen District Court nominees carefully enough and apparently relies on trusting that bad or political judges will be overruled by higher courts. Sen. Susan Collins was the only Republican senator to vote against the questionable Texas judge, who will hold office for life unless removed by Congress.
The Chief Justice has failed to exercise appropriate leadership. Roberts was surely aware of Alito’s unusual attack on the executive branch before it was published. He neither induced the justice to drop it nor expressed concern about it.
Roberts seemed to ignore Thomas having received undisclosed annual gifts from a wealthy and influential conservative. The Chief Justice refused to testify at a Senate committee looking at the Court’s ethics following the Thomas disclosures. Previously, Roberts had allowed only an in-house investigation by inexperienced staff of the leak of Alito’s ruling overturning Roe v. Wade.
Thomas and Alito are right-wing radicals. Alito regularly flaunts his partisanship. Thomas masks his bias in a dubious philosophy. Roberts asserts a degree of judicial independence that ignores the checks and balances that supposedly are central to the government.
If presidents and senators insist on federal judges as political partisans with little ethical accountability rather than as independent and responsible jurists, the Supreme Court will continue to fall in public esteem.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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