Last week, a completely bonkers district court ruling by Trump-appointed Christian fundamentalist Matthew Kacsmaryk vacated the Food and Drug Administration’s 2000 approval of the abortion drug mifepristone. Once again, millions of Americans were hit with the bleak realization that no matter who is in the White House or which party runs Congress, the country is governed by an outlaw judiciary appointed by a long-vanished Republican political majority. And its long past time for leading Democrats to start tearing down the structure of the far-right’s illegitimate chokehold on American society by ignoring these kinds of hallucinatory rulings, even if they come from the Supreme Court itself.
Kacsmaryk’s ruling preposterously arrogates to the judiciary the right to determine which drugs are safe, a power the courts plainly do not possess and have never before attempted to exercise. It makes a mockery of the idea, advanced by Republicans in spectacularly bad faith, that abortion policy has been returned to the states. And it is an ominous sign that the GOP’s project to impose gender tyranny on the United States is just getting started.
Because a different federal district court judge issued a competing ruling staying Kacsmaryk’s ruling for 17 blue plaintiff states, the case will likely end up before the U.S. Supreme Court. The issue will be taken up by the Court’s ill-gotten 6-3 majority of Fox News Grandmas and Grandpas who take their cues from the billionaire Nazi memorabilia collectors who (at least in one case) cart them around on superyachts. It’s the same majority that upended decades of social consensus when it issued the Dobbs decision last summer overturning Roe v. Wade. It is not unthinkable that five of them will find some pretext to side with Kacsmaryk and effectively torpedo medication abortions.
Kacsmaryk’s shocking ruling might convince more Democrats that court packing—sorry, court enlargement—is the way to fight back against right-wing judicial overreach. But it will be at least two years before Democrats have another governing trifecta that would make court enlargement possible, and that’s assuming they retake the House, hold the White House and thread the needle on a brutal 2024 Senate map with enough seats to spare to make Sen. Joe Manchin (R-W.Va.) and any other traditionalists clinging to the mythology of neutral justices calling balls and strikes in an agreed-upon strike zone irrelevant.
That means that Democratic leaders, including President Joe Biden, but also blue-state governors and legislatures, are going to have to decide whether to abide by this ruling, as well as whatever other toxic nonsense will be emanating from this reactionary SCOTUS over the next two years. The early signs are not great and suggest that Democrats will keep rolling over while they have their aides issue stern tweets.
Responding to calls from some Democrats, including Rep. Alexandria Ocasio-Cortez (D-NY), for the FDA to simply ignore the ruling, a senior Health and Human Services official tweeted that “People are rightly frustrated about this decision—but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision.” The seemingly defiant statements from blue-state governors like J.B. Pritzker (D-Ill.) promised only that Mifepristone remains legal for now, not that they would nullify a Supreme Court decision that sided with Kacsmaryk.
That’s a shame, because by the end of this summer the Supreme Court may also finish off what’s left of the Voting Rights Act by upholding Alabama’s racist, gerrymandered U.S. House map and either grant state legislatures plenary authority to make election laws or allow the Supreme Court itself to pick and choose which state supreme court decisions it likes and doesn’t like. The runaway train of the right-wing judicial movement’s assault on democracy, the rule of law and human rights will never stop on its own.
That’s why Congressional Republicans spent years destroying their integrity and covering up crimes so that Donald Trump could remake the federal judiciary, appointing judges exclusively from lists given to him by the ultraconservative Federalist Society. It’s why then-Senate Majority Leader Mitch McConnell (R-KY) changed his own made-up rule for Supreme Court appointments during election years to fast-track Amy Coney Barrett‘s nomination a week before the 2020 presidential election. They were willing to trade short-term political losses for the long-sought dream of unassailable judicial power via the creation of a generation-long right-wing Supreme Court majority—which could then remake American society without the fingerprints of elected Republicans.
At some point, Democrats—who have won the popular vote in 7 of the last 8 presidential elections, and who would be midway through a decades-long period of near-total dominance of national politics if not for archaic, counter-majoritarian institutions like the Electoral College and the U.S. Senate—are going to need to decide if they will ever actually push back on the far right’s relentless judicial onslaught.
That means a bold blue-state governor announcing that he or she would refuse to recognize the legitimacy of any Supreme Court decision outlawing mifepristone, under the Supreme Court’s own “anti-commandeering doctrine,” which prevents the federal government from coercing state law enforcement into carrying out federal laws. Would the Biden administration really send in the feds to California or Illinois to confiscate the pills? Probably not. Once that bandage is ripped off, these states can move onto gun control statutes, organized labor laws, campaign finance regulations, and abortion laws, effectively invalidating 20 years of destructive right-wing jurisprudence—at least while a Democrat is president.
Alternately, they could continue waiting around for the magical confluence of events needed to recapture the Supreme Court—two Republican justices dying or retiring under a Democratic president and a Democratic Senate. John Roberts isn’t even 70. Samuel Alito and Clarence Thomas are only 73 and 74, respectively. If they live as long as Ruth Bader Ginsburg did, the conservative majority will be in place until at least 2036.
After another 13 years of rule by judicial fiat, there likely won’t be much left of American democracy to salvage unless Democrats start getting radical—today.
David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer’s own.
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