A sham case has its day in court.

March 27, 2024

It appears that the Supreme Court will reverse a lower court ban on mifepristone—meaning that the drug will continue to be available to women nationally. Based on the comments from the justices at Tuesday’s hearing, the only question is which rationale the Supreme Court will adopt in reversing the national ban issued by Judge Kacsmaryk in Texas. (The Supreme Court previously stayed Kacsmaryk’s national ban, pending argument and decision in the case of FDA v. Alliance for Hippocratic Medicine).

The outcome is hugely consequential and represents a major victory for proponents of reproductive liberty. But before discussing the merits, another consequential aspect of this decision deserves attention: The case challenging mifepristone had no business being in the federal courts, much less on the Supreme Court docket. It should have been dismissed at the outset—and the lawyers who filed the case should have been sanctioned for bringing bad-faith litigation. The legal theory on which the case stands is a sham based on lies.

An urgent question for the judiciary is how a sham case made it to the Supreme Court’s docket. The answer is that it did so because the Supreme Court continues to coddle, humor, and occasionally reward a cohort of reactionary Federalist Society judges. That cabal is intent on manipulating the judicial system to achieve policy goals that the Christian right cannot secure at the ballot box or in state and federal legislatures—the traditional democratic means of enacting policy.

As explained below, the Supreme Court should issue a sharp rebuke to Judge Kacsmaryk and the plaintiffs’ lawyers, who conspired to gin up a case where none existed by alleging imagined injuries that no person claims to have actually suffered. But, it is unthinkable that the milquetoast Chief Justice will summon the courage and leadership to issue the much-needed rebuke. Instead, Justice Roberts will ignore the elephant in the room—bad faith litigation—and thereby encourage more of it.

Such bad faith litigation is not costless. For more than a year, women, their partners, and health care providers have been unsure about the continued availability and legality of the most widely used drug for miscarriage and abortion care. That uncertainty can dissuade women and men from attempting to conceive or planning to terminate a pregnancy. It is reprehensible that a single federal judge would presume to ban a safe and effective drug that has been on the market for more than two decades because of the fabricated objections of a handful of physicians.

Such sham suits also undermine the credibility of the federal judiciary and waste scarce judicial resources—including those of the Supreme Court.

Will John Roberts rouse the Court to reprimand Kacsmaryk and the sham plaintiffs? Or will the Court reverse the ban on procedural grounds that will merely kick the can down the road, thereby encouraging Kacsmaryk to try again?

We need not waste our time hoping for John Roberts to do the right thing. That opportunity expired a decade ago with Shelby County v. Holder. Rather, we should focus on gaining control in the House and the Senate and reelecting Joe Biden. At that point, expanding the Supreme Court can be accomplished with a majority vote in Congress and the signature of the president.

The current Court is not up to the task of preserving and implementing the Constitution. We deserve a Court that is. Vote like your democracy depends on it.

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Most of the Supreme Court justices appear ready to lift the mifepristone ban.

During the Court’s hearing on Kacsmaryk’s mifepristone ban, at least six justices appeared ready to lift the ban. See Ian Millhiser in Vox, The Supreme Court seems sick of arguing about the abortion drug mifepristone.

As Millhiser notes, the Court need not reach the merits to overturn the ban—and likely will not reach the merits. The plaintiffs in the case were physicians who claimed that there was a “statistical probability” that they would be forced to treat an abortion in progress that would lead to a medical emergency. However, such hypothetical injury does not satisfy the Constitution.

Per Millhiser,

Specifically, [plaintiffs] argue that if mifepristone remains on the market and can be prescribed under the FDA’s current protocol, some percentage of people will experience complications (serious complications from mifepristone are exceedingly rare but not nonexistent). These patients then might seek care from an emergency room. Once they arrive, they might be cared for by a doctor who belongs to one of the plaintiff organizations. And that doctor might have to provide care which violates the doctor’s conscience.

That’s a whole lot of “mights.” And it is far too many “mights” to show that the conscience injury that plaintiffs fear is “certainly impending.”

As Justice Barrett noted, there was no evidence in the record that any plaintiff doctor had been “forced” to participate in an abortion as an emergency procedure. Instead, they were voicing “conscience objections” to the threat that they might be required to do so in the future. And Justice Kavanaugh noted that under federal law, physicians cannot be forced to participate in abortions. See generally SCOTUS Blog, A fast-moving argument over medication abortion.

Justices Gorsuch and Jackson teamed up in questioning to make the point that the plaintiffs were effectively asking that the religious objections of a handful of doctors serve as the basis for denying women across the nation access to the safest and most commonly used drug for miscarriage and abortion care.

Again, per Millhiser in Vox,

[Justice] Jackson’s concerns were echoed by Justice Neil Gorsuch [who] fretted that “a handful of individuals who’ve asserted a conscience objection” should not be able to go to court and obtain a “nationwide” order changing the entire country’s approach to mifepristone.

The justices seemed equally skeptical that plaintiffs could meet their burden on the second question accepted for review by the Court: Whether the FDA’s 2016 and 2021 actions were arbitrary and capricious.

As noted in my opening comments, the real question is whether the Court will issue an opinion that shuts down Kacsmaryk’s ability to resurrect the ban if the plaintiffs can remedy the defects in their standing arguments. The Court recently demonstrated its ability to act decisively to close the courthouse door against 14th amendment challenges to the qualifications of presidential candidates. Given the dubious nature of that decision, the Court should be on firmer ground in finally disposing the manufactured claims in FDA v. Alliance for Hippocratic Medicine.

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NBC rescinds offer to Ronna McDaniel

NBC executives listened to network viewers and on-air talent about the ill-advised hiring of Ronna McDaniel and rescinded her offer of employment. As noted by the New York Times,

Fans of MSNBC, NBC’s left-leaning cable arm, were particularly outraged, citing Ms. McDaniel’s leadership of the Republican Party under former President Donald J. Trump and her handling of his false claims that the 2020 election was rigged.

Readers of this newsletter sent emails of protest by the thousands—as did tens (hundreds?) of thousands of other MSBNC / NBC viewers. Everyone who protested should feel satisfaction and pride in preventing a participant in coup from being platformed at a legitimate news outlet. Take a bow!

But . . . the backsliding and revisionist history has already started. The NYTimes article on the termination of McDaniel included the following editorializing:

The episode underscored the deeply partisan sphere in which news organizations are trying to operate — and the challenge of fairly representing conservative and pro-Trump viewpoints in their coverage, if major Republican Party figures like Ms. McDaniel are deemed unacceptable by viewers or colleagues.

Hmm . . . the authors of the Times’s article believe that part of being “fair” is to represent “pro-Trump viewpoints”? First, let’s be clear: The firing of McDaniel had nothing to do with her political viewpoints and everything to do with her knowledge of and participation in the plot to overturn the 2020 election. It’s not about politics; it’s about complicity in a coup attempt. Don’t let anyone obscure that fact.

More importantly, casually assuming that “fairness” requires a “pro-Trump” viewpoint is precisely the type of both-siderism and false equivalency that threatens our democracy. Trump has said he wants to be a dictator. There is no “pro” side to that issue. Trump has called for the “termination” of the Constitution. There is no “pro” side to that issue. Trump has said he would “encourage [Russia] to do whatever the hell they want” to our NATO allies. There is no “pro” side to that issue. Trump has called for the execution and jailing of current and former Biden administration officials. There is no “pro” side to that agenda.

The New York Times reporters just don’t get it—just as the NBC executives didn’t. Trump is not running for the presidency from within the constitutional framework. He is seeking to destroy the constitutional framework from the outside--to escape accountability for his crimes and corruption.

Fairness does not dictate comparing Trump's desire to destroy the Constitution with Joe Biden’s age or his son’s drug addiction. For all the education, sophistication, and advantages enjoyed by the journalists at the NYTimes (and much of major media), their insistence on treating Trump as a “normal” candidate is itself a threat to our democracy that should not be tolerated—as NBC’s executives found out today.

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Two developments in the Trump election interference / hush money trial in New York.

There were two significant developments relating to Trump's criminal trial for election interference in New York. In the first, Judge Merchan issued a gag order that prohibits Trump from commenting on witnesses, prosecutors, court staff, and jurors. The order allows Trump to comment on District Attorney Alvin Bragg.

The order is here: Decision and Order.

In granting the order, Judge Merchan reviewed Trump's previous statements:

Indeed, his statements were threatening, inflammatory, denigrating, and the targets of his statements ranged from local and federal officials, court and court state prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duties. The consequences of those statements included not only fear on the part of the individuals targeted, but also the assignment of increased security resources to investigate threats and protect the individuals and family members thereof.

Proving Judge Merchan’s point, on the very day the judge issued the gag order, Trump issued the following statement about Judge Merchan on Truth Social:

Judge Juan Merchan, a very distinguished looking man, is nevertheless a true and certified Trump Hater who suffers from a very serious case of Trump Derangement Syndrome. In other words, he hates me! His daughter is a senior executive at a Super Liberal Democrat firm that works for Adam “Shifty” Schiff, the Democrat National Committee, (Dem)Senate Majority PAC, and even Crooked Joe Biden.

Judge Merchan is anticipating unprofessional behavior by Trump and his lawyers during trial, so he issued an additional order regulating conduct during the trial: Decision and Order on Motion to Vacate Court's Orders.

This Court advises counsel that it expects and welcome zealous advocacy and creative lawyering. However, the Court also expects those advocates to demonstrate the proper respect and decorum that is owed to the courts and its judicial officers and to never forget that they are officers of the court. As such, counsel is expected to follow this Court’s orders.

As such, “a court of record has power to punish for a criminal contempt, a person guilty7 of . . . [w]illful disobedience to its lawful mandate.”

This Court emphasizes that it hopes for and fully expects zealous advocacy from counsel as well as spirited contribution from witnesses and parties alike. Nonetheless, the Court expects that the line between zealous advocacy and willful disregard of its orders will not be crossed.

It will be an interesting trial. Judge Merchan just fired two warning shots off Trump’s bow today.

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Reader meetings in Houston (4/3) and San Antonio (4/6)

As a reminder, my wife and will be visiting Texas to observe the solar eclipse. We are arranging reader meetings in Houston on Wednesday, April 3 at 6:00 p.m. and San Antonio on Saturday, April 6 at 10:00 a.m. We are still working on locations for the meetings, but you can sign up here to reserve a spot:

RSVP to Houston meeting on April 3 at 6:00 p.m.

RSVP to San Antonio meeting on April 6 at 10:00 a.m.

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Concluding Thoughts

I received a surprising amount of disagreement from readers (mostly lawyers) over my criticism of the New York appellate division’s decision to reduce Trump's appeal bond without explanation. The general point of disagreement was the assertion that by reducing the bond, the appellate division changed the focus from the collection efforts against Trump's properties (which would make him the victim) to the merits of the appeal.

I don’t buy it. The appeal will take a year or more. It just disappeared into a black hole of judicial inertia. The public will forget about it. The merits of the appeal will be decided when they no longer matter. And we have no reason to cloak the appellate division with an aura of good faith and judicial wisdom when it could not be bothered to explain its decision to the public.

One Republican pollster attempted to intimidate A.G. Letitia James by claiming that the spectacle of seizing Trump’s homes and properties “on camera” would ensure Trump's election. The pollster has no idea how the execution of a judgment works. It happens on paper and by computer, in a clerk’s office, or on the microprocessors of a bank’s mainframe computer where “money” is encoded as binary digits on silicon chips. Nothing happens “on camera.”

It was an idle threat that frightened some Democrats. Jamelle Bouie of the NYTimes addressed the boogeyman of seizing Trump's assets in his op-ed in the NYTimes, Opinion | No One Is Above the Law, Except, Apparently, Donald Trump. (Behind a paywall; sorry. I ran out of gift articles.)

Bouie reviews the slow and ineffective efforts (to date) of the courts to deal with a man who threatens to overturn the very system of laws that seems incapable of holding Trump accountable. Heck, it can’t even hold him accountable for posting an appeal bond that every other defendant in New York would be required to post or suffer the consequences. Pathetic.

But I found Bouie’s conclusion inspiring and true. The courts aren’t coming to save us. We are going to have to preserve democracy and defend the rule of law ourselves, at the ballot box. With no assist from the courts. As Bouie writes,

As it stands, we’ll almost certainly be forced to wait on the verdict of the electorate to see if Trump ever answers for his crimes.

This, in turn, gets to one of the fundamental truths of the Trump era. There is exactly one force in this country that has disciplined Trump and held him accountable for his actions. It is the public.

The American people have been the single most reliable obstacle to Trump’s effort to impose himself, and his will, over our institutions. Let us hope that they have not given up the fight.

I haven’t given up the fight. I know you haven’t, either. While the election interference / hush money trial will be a distraction and obstacle for Trump, it isn’t going to save us. We must defeat Trump in November. We can do it, together.

Talk to you tomorrow!