First, let’s start with the good news. The stay of First Liberty Counsel cum Amarillo Judge Matthew Kacsmaryk’s decision in the abortion pill case has been granted by what appears to be a 7-2 majority. You can still get mifepristone in this country unencumbered by any restrictions by Kacsmaryk or the Fifth Circuit.
Now, let’s get onto the juicy stuff. The fractures in the Supreme Court are as apparent as ever, as Justice Samuel Alito writes a dissent (Clarence Thomas also publicly dissented without writing) that attacks three of the four women on the Court.
GUESS WHICH THREE! YOU MIGHT BE SURPRISED!
It’s not surprising Alito is pitching a fit in this case, at least not to anyone familiar with his scorched earth jurisprudence and the tenor of recent public appearances. But it is still noteworthy. In his opening paragraph the justice takes aim at Justices Kagan, Sotomayor, and Barrett over their repeated skepticism of the Court’s use of the shadow docket to make law. I suppose Justice Jackson is too new to the Court to catch Alito’s ire.
In recent cases, this Court has been lambasted for staying a District Court order “based on the scanty review this Court gives matters on its shadow docket,” Merrill v. Milligan, 595 U. S. ___, ___ (2022) (KAGAN, J., dissenting) (slip op., at 2). In another, we were criticized for ruling on a stay application while “barely bother[ing] to explain [our] conclusion,” a disposition that was labeled as “emblematic of too much of this Court’s shadow-docket decisionmaking— which every day becomes more unreasoned.” Whole Woman’s Health v. Jackson, 594 U. S. ___, ___–___ (2021) (KAGAN, J., dissenting from denial of application for injunctive relief) (slip op., at 1–2). And in a third case in which a stay was granted, we were condemned for not exhibiting the “restraint” that was supposedly exercised in the past and for not “resisting” the Government’s effort to “shortcut” normal process. Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting) (slip op., at 5). Cf. Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief) (slip op., at 1) (warning that the Court should not act “on a short fuse without benefit of full briefing and oral argument” in a case that is “first to address the questions presented”).
Of course, absent from the poor analysis is the difference in posture. Because the change to mifepristone’s availability and the regulatory hoops that would have to be surmounted is the real change to the status quo that needs to be protected against.
His dissent also goes on to assert that there’s no “irreparable harm” in allowing Kacsmaryk’s decision, as modified by the Fifth Circuit, go into effect. You’re not wrong to think this demonstrates a wildly out-of-touch understanding of pregnancy.
Alito also concludes with this curious note:
Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.
Now I am very much of the opinion that this is a disingenuous bit of pandering, but we shall see. Because it feels unlikely this is the last time the Supreme Court will take up the availability of mifepristone.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.