The path forward.

April 14, 2023

          On a day of disappointing developments on the legal front, it is helpful to focus on our path forward. First, let’s look at the developments: The 5^th Circuit overruled Judge Kacsmaryk’s decision banning mifepristone in part but imposed new restrictions on the availability of the drug. We learned that the corruption of Justice Thomas was more blatant and pervasive than previously believed. And Florida voted to impose a six-week ban on abortion—effectively prohibiting the procedure entirely.

          At root, each of the above traces back to the dysfunction and radicalization of the Supreme Court’s conservative majority. (I’ll explain in detail below.) But we can overcome the reactionary majority on the Supreme Court and reestablish judicial norms by simple procedural steps that are within our grasp. We need only the following:

• Carve out an exception to filibuster for legislation expanding the Court.

• Expand the Court by four (or more) Justices.

• Appoint Justices who will uphold the law, give meaning to the promises of the Constitution, and adhere to a strict canon of judicial ethics.

          When Democrats controlled Congress and the presidency beginning in 2020, they rejected the above measures as “too radical” or potentially “delegitimizing” for the Court. Now, we are faced with the logical extremes of the Dobbs decision: Total bans on abortion in multiple states, single-judge rulings that revoke FDA approval for safe drugs used in abortions and miscarriages, and privileged access to the reactionary majority by Hitler-curious billionaires who subsidize the vacations, lifestyle, and retirements of the Justices’ aging parents.

Creating a carve-out to the filibuster is not a radical step; there are 161 existing exceptions to the filibuster. One more exception will not shake the foundations of democracy.

          The size of the Supreme Court is not set in the Constitution and has varied over time—most recently when Mitch McConnell unilaterally decreased it to eight under President Obama and increased it to nine under Trump. Again, increasing the size of the Court would not fundamentally alter our democracy. Indeed, a strong argument can be made that a Court that started with six justices when the US consisted of thirteen states should be much larger to serve the needs of fifty states.

          A frequent criticism of expanding the Court is the question, “But won’t Republicans do the same if they get the chance?” Of course, they will—if they get the chance. But we can prevent them from gaining a federal trifecta through hard work and smart politics.

          More importantly, we cannot allow ourselves to be frozen with fear because of what Republicans might do. If that is the test for acting, then we will soon be faced with a national abortion ban imposed by a single federal judge in Amarillo, Texas. Are we willing to tolerate that outcome? Or are we bold enough to act in a way to rehabilitate the Court and begin the long process of restoring the rule of law and the liberties guaranteed by the Constitution?

          Here’s my point: We have a path forward. We need only dare to take it when the moment presents itself. We temporized from January 2021 to January 2023, when we controlled the levers of power. Let’s not repeat that mistake. Oh, and we need to win both chambers of Congress and the presidency without forgetting the importance of state elections. That is a lot, but it is our path forward. Let’s take it.

A panel of the Fifth Circuit partially approves Judge Kacsmaryk’s decision.

          A panel of the Fifth Circuit partially upheld Judge Kacsmaryk’s attack on mifepristone. In sum:

• The Fifth Circuit ruled that the plaintiffs waited too long (23 years) to challenge the FDA’s initial approval of mifepristone, but

• The Fifth Circuit upheld Judge Kacsmaryk’s repeal of all FDA actions expanding access to mifepristone within the last six years (the statute of limitations period).

          As a result, mifepristone cannot be mailed, must be prescribed only during the first 49 days of pregnancy (rather than the first 70), and can be prescribed only by physicians, not physician’s assistants and nurse practitioners.

          The limitations imposed by the Fifth Circuit are just as egregiously wrong as the relief the panel overruled in Judge Kacsmaryk’s ruling. See Ian Millhiser in Vox, The Fifth Circuit’s new abortion decision about mifepristone is pure chaos.

          Before examining the absurdity of the Fifth Circuit’s opinion, let’s recognize that the appellate panel engaged in judicial malpractice for the same reason that Judge Kacsmaryk did: They believe they will not be admonished and corrected by a Supreme Court intent on upholding the rule of law.

          As explained by Millhiser,

The bad news is that the decision is otherwise pure chaos. It imposes restrictions on mifepristone use that no court has the authority to impose. And it wrongly claims that the judiciary has the power to override the FDA’s scientific judgments.

It announces a new legal rule which would allow federal judges to second guess the FDA’s scientific judgments based on the judiciary’s own opinions about how scientific research should be conducted.

The idea that Engelhardt and Oldham, two lawyers with no medical or scientific training, somehow know more about how to interpret scientific research about pharmaceuticals than the FDA is ridiculous. And, if their decision is allowed to stand, it could have catastrophic public health consequences because it would force the pharmaceutical industry to conduct expensive and unnecessary research before its drugs could be marketed, and before the FDA could update the protocols for prescribing a particular drug.

          The Fifth Circuit’s ruling also adopts the ludicrous and speculative notion that the doctor-plaintiffs have standing to bring the lawsuit because they “might” be forced to treat women with side effects from mifepristone—a drug shown to be safer than Tylenol. In other words, emergency room doctors are “injured” because they might be forced to do their jobs by treating minimal side effects of mifepristone.

          The DOJ has appealed the Fifth Circuit’s order to the Supreme Court. The pharmaceutical industry and patient groups have risen en masse to object to the notion that one or two federal judges can substitute their views on science for that of the FDA. If accepted by the Supreme Court, a carefully crafted drug regulatory scheme that has prevailed for the last seventy-five years will collapse. Chaos, indeed.

          Let’s see if the reactionary majority on the Supreme Court has the guts to admit that it opened Pandora’s Box with its Dobbs ruling. It should dismiss the lawsuit before Judge Kacsmaryk and reject the most pernicious holdings in his opinion.

Clarence Thomas’s corruption deepens.

          Pro Publica published another blockbuster report that reveals billionaire Harlan Crow purchased from Justice Clarence Thomas two vacant lots and Thomas’s family home. Thomas’s mother continues to live in the home—rent-free?—while Harlan Crow pays for improvements and real estate taxes.

          Thomas should have disclosed the property transfer in his annual filing with the Court. His failure to do so concealed Harlan Crow’s payment of tens of thousands of dollars to Thomas. See Pro Publica, Clarence Thomas Didn’t Disclose Harlan Crow Real Estate Deal.

          As noted by a reader, the failure to disclose the financial transaction does not merely present an ethics violation. Thomas filed his annual disclosures under 5 USC Appendix 104 - Failure to file or filing false reports. That provision provides civil and criminal penalties for anyone who “knowingly and willfully fails to file or report any information that such individual is required to report pursuant to section.”

          In short, this violation is unambiguous and subjects Thomas to criminal penalties. The fact that Thomas felt emboldened to ignore such a blatant violation of his disclosure obligation is a disturbing insight into the mindset of some Supreme Court Justices.

          If John Roberts had any leadership skills or concern for the integrity of the Court, he would open an independent investigation—or invite the Attorney General to do so.

          In his last report on the state of the Court (2022), Roberts did not mention the call for an enforceable code of ethics for Supreme Court Justices. But in 2011, Roberts wrote the following:

Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address this issue

All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations. [¶]

Every Justice seeks to follow high ethical standards, and the Judicial Conference’s Code of Conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary. [¶]

For [the above reasons], the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.

          Roberts has failed the Court—and the American public—by portraying Supreme Court justices as preternatural beings floating above the temptations and conflicts of mere mortals. The only question is whether Roberts will continue his decade-long abdication of duty—or whether he will, at long last, act to protect the legitimacy of the Court.

Florida passes a 6-week abortion ban.

          The Florida legislature has passed a six-week abortion ban, which effectively bans all abortions in Florida. Like other such bans, the reach of the statute will convert women suffering from miscarriages into pariahs and fugitives as doctors seek to avoid criminal liability for assisting a woman in medical crisis.

          DeSantis signed the bill in the dead of night—avoiding the usual fanfare that accompanies his culture war bill signings. The reason is obvious: The “people’s representatives” in Florida are ramming legislation down the throats of unwilling constituents. Per recent polling,

The latest polling on the proposal by the University of North Florida in late February found that 75% of state residents either somewhat or strongly oppose the six-week ban, including 61% of Republicans. 

          DeSantis is so out of touch with voters in his state that won’t win Florida’s electoral votes if he runs for president.

          But the highly unpopular legislation underscores a key hypocrisy in the Dobbs opinion. It would be one thing to delegate the decision to “the people’s representatives” if those representatives fairly represented their constituents. But because the Supreme Court has refused to outlaw partisan gerrymandering, the reactionary majority knows that the GOP has gerrymandered its way to an “unrepresentative” majority in dozens of state legislatures.

          Again, all of this can be fixed by reforming the Supreme Court. Partisan gerrymandering violates the “Republican form of government” guaranteed by the Constitution at the state level, and the liberties guaranteed by the Bill of Rights and the 14^th Amendment clearly protect personal autonomy over one’s body—regardless of whether it uses those particular words.

Unanswered email.

          I had electrical service performed at my home on Thursday. My electricity was off for four hours. When it came back on, everything rebooted from the ground up—including my router, server, and mesh network. It was then I discovered my router had its own spam firewall that was preventing the delivery of some emails to me from readers. I was flooded with hundreds of emails sent by readers over the last month or so. Without realizing that fact, I started to respond to the influx and received quizzical replies—“I sent this weeks ago; why are you responding now?”

          So, apologies if you sent a heartfelt email or suggestion in the last month or two and I did not reply. I will pursue this issue with my internet provider to determine how I can ensure it does not control which emails I receive from readers.

Concluding Thoughts.

          There are, of course, hugely consequential developments on which I have not commented tonight. Finding the right throughline to discuss in the newsletter is always difficult. In general, I try to focus on stories that I believe are affecting how people are feeling about their place in our democracy at this moment. Today, I felt a bit overwhelmed/discouraged by the bad faith of the Fifth Circuit’s opinion, by the unmitigated arrogance and disdain of Thomas’s refusal to be held accountable to the people he serves, and by the gratuitous inhumanity and indecency of Florida legislature toward the human rights of women.

          So, I focused on the path forward. It may not be a satisfactory answer for everyone, but it is one that is within our grasp. Five more seats in the Senate and recapturing the House is all it will take, along with retaining the presidency. And Republican candidates are doing everything they can each day to repel Americans of good faith who want to live their lives in peace, security, and safety.

          Talk to you tomorrow!