Attorney
Marc Elias↱ explains today's Supreme Court oral arguments in a Fifth Circuit anti-abortion case:
Today the Supreme Court heard a frivolous case to ban medicine. The good news, is that it will dismiss the case for lack of standing. The scandal is that it never should have needed to consider it, except for right-wing judge shopping and the ultra-conservative 5th Circuit.
The obvious response is to invoke the Verrilli Standard, and ask,
¿This Supreme Court, Your Honor?
†
Actually, let us start with a simple idea one might see in a movie or television show, a joke in which we watch the audience watch something else, such as tennis. It's a straightforward bit in which we hear the sounds of the match, and the audience, in unison, turns their heads from side to side, in time to the sounds, as if watching the ball go back and forth.
Ping-pong? Of course. Marital disputes? Yes, that joke has been done. Politics? Well, only if you insist.
†
So, here's the thing: It's easy to look at what Elias says as if it is merely a political argument. "Frivolous," he says, but the thing is, it's not just an arbitrary word; if you just watch the argument go back and forth, side to side, in time to the rhythm of the heat, you might be missing something.
Because, there is, actually, truth. And no, it's not the most permanent of truths, but insofar as this is how we get here, no, Elias is not wrong: If we look at the record laid down by the Judiciary, then the "frivolous case to ban medicine" is, indeed, frivolous. It's kind of an if/then:
If history, case law, and procedures of the courts are held consistently,
then the case should not be coming before the Supreme Court.
This is one of those things, where
if A, B, and C,
then 1, 2, and 3.
While the historical irony¹ of how we get to this case is its own grotesque menagerie, the frivolity is observable in the need for circumstantial inconsistency. Not only is there an obvious question of standing, but any decision in favor of the Alliance for Hippocratic Medicine² will need to be extraordinarily bounded in order to not spill over into anything else.
For instance, if the Court is to rule, as AHM hopes, against milfepristone, then every drug the FDA handled similarly during approval is similarly disrupted; the effort required for a majority to craft a decision winnowed down to
just this one drug would require undignified effort.
Early assessments of this morning's oral arguments suggest the Court is wary of upholding the decision out of the Northern District of Texas³, but it is worth noting that, in this, two justices invoked the Comstock Act, a set of nineteenth-century indecency regulations. And while it might seem, in that back and forth between political factions, some manner of hyperbole to suggest two Supreme Court justices are seeking to revive the Comstock Laws, it is a matter of recorded fact that one of those justices, Clarence Thomas, has already signaled, in writing, his intention to pursue
Griswold, a 1965 Supreme Court decision that overturned P.T. Barnum, undercut the Comstock Laws, and is essential to the American assertion of a right to privacy.
†
The cynical analysis wonders how the Roberts majority will work around the implications of Court standards. Inasmuch as that would seem to imply there are standards, yes, there are, and the Judiciary has been building the record of that standard, its intentions, and evolution for over two hundred thirty years.
It's kind of like an
episode↗ out of Florida, when a politically conservative majority on the Eleventh Circuit Court of Appeals had occasion to remind a district judge, Aileen Cannon, of those very standards. And in the tennis back and forth, maybe that seems like one side of the story, but compared to the record of how we got here, there really is truth insofar as there really are facts. Such as when Eleventh Appeals literally reminded Judge Cannon how the law works, citing, "
Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794)". That's not a routine back and forth, but a crushing overhand smackdown so resounding as to remind everyone in the audience that one of the players in the match doesn't belong on the court.
†
Thus, we might consider, per what is observable and knowable: Yes, the case is, as Elias said,
frivolous, and yes, it seeks to
ban medicine; additionally, Elias' assertion of a
lack of standing is appropriate according to the established record of how this all is supposed to work. Scandal? Well, even the Supreme Court seems to find the circumstance offputting, but "scandal" might seem a little much if we apply its most severe implications. And as for what the Court
never should have needed to consider, I guess we could split a cilium about what strange circumstances might challenge the word
never. Still, it's an awkward and unwieldy moment for the Supreme Court that would not have come about
except for right-wing judge shopping and the ultra-conservative 5th Circuit.
And that last is accurate, too; it is observable and knowable that conservative attorneys shopped for Judge Kacsmaryk, and that the Fifth Circuit is extraordinarily conservative.
But amid the politicking of facts, there is, in fact, a weak link in Elias' logic.
†
The "Verrilli standard" is an inquiry in response. The short form is, simply that once upon a time (
Burwell v. King, 2015), Justice Scalia struggled to establish a counterintuitive circumstance for some argumentative purpose, leading to the notoriously tempermental jurist grilling U.S. Solicitor General Donald Verrilli: "You really think Congress is just going to sit there while all of these disastrous consequences ensue?" Scalia demanded for the sake of his fallacy, suggesting "it happens all the time" that Congress fixes a law after the courts have their say. Verrilli was not intimidated, instead pretending mild surprise before calmly asking, "This Congress, Your Honor?" and everyone laughed.
†
This Supreme Court, Your Honor?
That's the weak link in Elias' logic, the Supreme Court. "The good news," he says, "is that it will dismiss the case for lack of standing."
And if we could rely on this Supreme Court according to the established record of the judiciary, I could easily agree. Moreover, in the moment I accept, partly on the breadth of the spectrum, analytical chatter suggesting the Court really doesn't like the case, and isn't willing to be seen going so far to achieve that outcome. But, still, that's the thing. Even the part with Gorsuch inquiring of attorney Hawley, to "give [her] one more shot", while separating the Court from a "relatively new remedial course this court has never adopted", which reads and sounds as it does, cannot be taken as any assuring omen. In
Dobbs, for instance, the case that opened the gates for decisions like Kacsmaryk's, the Supreme Court majority adopted a new doctrine invented in a lower court only a few years before, by a federal judge named Brett Kavanaugh. Yes,
that Brett Kavanaugh. You know, the one who now sits on the Supreme Court.
"The good news," says Elias, "is that it will dismiss the case for lack of standing."
This Supreme Court, Your Honor?
____________________
Notes:
¹ Compared to the history of political arguments, conservative jurists are openly behaving in a manner they used to accuse of liberals, as an "activist" Court seeking to "legislate from the bench". Those who recall Chief Justice Roberts and his conservative colleagues described as "originalists" understand the implication; the Roberts Court majority does not attend originalism, but instead the opposite, an activist judiciary seeking to legislate from the bench.
² We might note the word, "Hippocratic", and consider the
Christianist revival↗ for context; while the easy association with the "Hippocratic oath" (
i.e., "First, do no harm") stands out according to the a basic association with medical practice, invocations of Hippocrates and what is Hippocratic are also, and perhaps more directly according to the underlying politics, associated with cultivating and enforcing ostensibly "Christian" standards, laws, and guidelines for society.
³ Recent revisions to judiciary policy, ostensibly intended to constrain and discourage "judge shopping", are widely perceived as responding in large part to Judge Kacsmaryk's handling of controversial cases.
@marcelias. "Today the Supreme Court heard a frivolous case to ban medicine. The good news, is that it will dismiss the case for lack of standing. The scandal is that it never should have needed to consider it, except for right-wing judge shopping and the ultra-conservative 5th Circuit." X. 26 March 2024. Twitter.com. 26 March 2024. https://bit.ly/3Vxujl2
