The Supreme Court heard arguments on Tuesday in a case aimed at significantly restricting access to medication abortion nationwide. The case, strategically brought before Judge Matthew Kacsmaryk, a Trump appointee, ensured that any appeals would reach the conservative-leaning U.S. Court of Appeals for the 5th Circuit.
Although the focus was not on the procedural tactics employed, several justices questioned the approach taken by the plaintiffs, reflecting a growing skepticism within the court towards collaborations between conservative litigants and Trump-appointed judges.
Dahlia Lithwick and Mark Joseph Stern explored this backlash against certain district courts and their enabling counterparts in the 5th Circuit during a segment of Saturday’s Amicus. Here’s a condensed version of their discussion:
Dahlia Lithwick: Justice Neil Gorsuch raised concerns during oral arguments about the proliferation of nationwide injunctions originating from district courts within the 5th Circuit. Gorsuch highlighted a stark increase in such injunctions in recent years, attributing them to cases like the one under review, which he characterized as transforming minor disputes into broad legislative debates.
Neil Gorsuch (Credits: CBS News)
Mark Joseph Stern: Gorsuch’s frustration isn’t new. He previously criticized similar injunctions, including one issued by Judge Terry Doughty, another Trump appointee, which barred the Biden administration from engaging with social media companies.
While Gorsuch’s stance seemed to waver initially, perhaps as a response to political dynamics, it’s now clear he finds such injunctions problematic from both practical and ideological standpoints.
The discussion then shifted to the 5th Circuit’s handling of Texas’ controversial anti-immigrant law, S.B. 4. Barrett and Kavanaugh’s recent rebuke of the 5th Circuit’s actions regarding the law signaled a shift, prompting the circuit to reconsider its stance.
In a notable turnaround, the 5th Circuit ultimately deemed the law unconstitutional, a decision met with dissent from Judge Andrew Oldham, a Trump appointee known for his extreme views.
In reflecting on these developments, Lithwick emphasized the unusual dynamic of the judiciary deflecting shame and responsibility, leading to a convoluted process that diverges from the judiciary’s intended role.
Mark Joseph Stern: This ongoing struggle highlights the power dynamics within the judiciary, with some jurists unabashedly pursuing their agendas while others, like Barrett and Kavanaugh, attempt to uphold constitutional principles.
The conversation underscores the complexities and tensions within the judiciary as it navigates politically charged cases and questions of constitutional authority.
