NO, MIFEPRISTONE IS NOT SAFE
In it’s recent decision, June 13, 2024, the Supreme Court unanimously rejected a lawsuit challenging the Food and Drug Administration’s approach to regulating the abortion pill mifepristone, allowing the drug to stay on the market. The court ruled that the doctors and anti-abortion groups that had challenged access to the drug did not have standing to sue.
This decision by the Court should not be hailed as a shift in their thinking in support of abortion rights or even for support for mifepristone, which is currently widely used in the United States for medication abortions. The decision is best understood as a political one. It is the way this Court can punt to avoid a controversial abortion decision that would hurt Republicans before the next election. It does not mean that this Court is suddenly more pro-choice.
By rejecting the case based on a standing issue, which is a threshold issue, the Court avoided getting into the nitty gritty of the merits. That leaves the potential for another case to rise up that the Court would be able to use to address the merits. In other words, this decision is a punt instead of a drive. But make no mistake, the drive is coming. There are breadcrumbs in this decision that hint at the kind of case the Supreme Court would take up on the merits to further limit reproductive rights if they choose to do so. They may be waiting to see if Trump wins.
- If Trump wins re-election, he could simply use the Comstock Act to enact a de facto national abortion ban which would take the heat off of the Supremes (at least until the cases brought by the devastated husbands and families of women who died or lost the ability to have any more children or suffered permanent physical impairment as a result of that ban, start populating the Court’s docket.)
- If Trump wins he could have an even easier way to ban mifepristone that does not rely on the Comstock Act: he could follow the Project 2025 playbook and install a loyalist at the FDA who would simply take mifepristone off the market claiming (falsely) that it is too dangerous.
- In addition, if Trump wins re-election, he will also be able to further stock the Supreme Court with young religious right wing justices who would move our Supreme Court even further too far to the right for decades to come. In short, a second Trump presidency would be the end of reproductive rights, voting rights, and many of our other rights and freedoms for the foreseeable future.
RELIGIOUS RIGHT IS ALREADY UNDERMINING OUR RIGHTS, FREEDOMS
For the last 40 years, the rabid religious right has been steadily sneaking its way into positions of power by successfully running rightwing extremists in state and local races to gain control of statehouses across the country and by stocking our national courts with Federalist Society judges when they get the chance. Many of these people are wolves in sheep’s clothing. Just as these extreme justices did when they testified in congress about the durability of Roe and how much they claimed to believe in precedent, once in power, they often behave otherwise.
This is part of a playbook they have been advancing for decades. Even before Trump landed the presidency, Mitch McConnell unfairly blocked Obama’s Supreme Court pick. Merrick Garland, with a bogus argument that it was too close to the next election to have any confirmation hearings. Remember that deceptive play by McConnell? This denied Obama his rightful presidential pick for the Supreme Court and helped to set up the lopsided array of justices we have now- too many religious Republican rightwing justices who do not represent the will of the majority in America. That was part of a larger playbook of the religious right to take control of the Court, Congress and state houses in America. I am not being paranoid here. This movement has been coming for a long time.
Trump made a deal with evangelicals that bought him their support to help him win the 2016 election. He would help them stock the Supreme Court with rightwing judges that would overturn Roe v Wade if they would back him. They did. With Trump as president, the religious right hit the jackpot. Trump pulled off his side of the deal by getting Gorsuch, Kavanaugh and Barrett onto the Supreme Court. Those three justices are working in concert with Thomas and Alito to create an activist bloc of five justices who are undoing not only our reproductive rights but other rights as well. They are steadily whittling away at voter protection laws, siding with corporations and dark money groups to give them more and more power, and supporting the religious right in cases that directly assault reproductive rights.
Thomas, in his opinions, has hinted that he would be open to curtailing more hard fought progressive rights like LGBTQ rights that were moored in the Constitution by the privacy language in Roe v Wade. That privacy language was the Constitutional basis not only for abortion but many other human rights and freedoms in our country.
JUSTICE THOMAS, ALITO ACCEPTS GIFTS WORTH MILLIONS FROM DONORS SEEKING INFLUENCE
This Court is shockingly corrupt. Recent reporting found that Justice Thomas has accepted nearly $4.2 million worth of gifts over two decades on the Court—a total nearly ten times the value of all gifts received by his fellow justices during the same time.
ProPublica previously revealed that Harlan Crow, a Texas billionaire, paid for Thomas’ vacations, his mother’s house, and a nephew’s tuition payments. The New York Times reported that Thomas received special treatment from members of the Horatio Alger Association, including David Sokol, a former Berkshire Hathaway executive; and H. Wayne Huizenga, the billionaire. ProPublica reported that Paul “Tony” Novelly, the oil baron, is a previously unnamed benefactor of the justice. The total value of the undisclosed trips Thomas has received from these men since 1991, when he was appointed to the Supreme Court, is in the millions, the news site said.
Thomas isn’t the only justice to come under such scrutiny. ProPublica reported in June that in 2008 Justice Samuel Alito went on a fishing trip to Alaska with hedge fund billionaire Paul Singer, a Republican donor who has had cases before the Supreme Court. Alito traveled to the remote Alaska site on Singer’s private jet, along with Leonard Leo, a longtime leader of the conservative Federalist Society, who helped organize the trip and the rightwing takeover of the Supreme Court. The salmon fishing lodge that they all stayed at was owned at the time by another big Republican donor, Robin Arkley II, who footed the bill for Alito’s lodging. Alito did not subsequently recuse himself from a case involving Singer’s legal interests before the court.
WHAT JUDGE ALITO REALLY BELIEVES
Alito has become more openly right wing as the Court has moved further to the right with the addition of these new justices.
After reports emerged of two flags flying in front of his two homes it was obvious that Alito was not a neutral arbiter, but rather a strong proponent of the insurrectionists and Christian nationalism. First, there was that upside down “distress” flag that was used by the insurrectionists on January 6th flying in front of his home. Next, there was a primitive looking pine tree symbol flag, the symbol of Christian nationalists, flying at his summer home. Alito has been trying to deflect critics by claiming he wasn’t responsible for flying these flags. He blamed his wife. But that protestation is not credible since it is his home too and he isn’t helpless when it comes to decorating his house. Alito has had calls for his recusal in the upcoming decisions involving Trump’s cases before the Court. So far, Alito has refused to listen to those critics.
Trump has a deeply controversial case currently before the Court in which he claims a president should have total immunity from prosecution for criminal acts while president. This decision will be published in a matter of days. Alito should have recused himself, not weighing in at all on that case. Given the same situation, a lower court judge would have HAD to recuse based on the appearance of impropriety. There are rules governing recusal that apply to all other lower court judges. The only judges that have no rules or ways to enforce compliance are Supreme Court judges.
That needs to change.
If there was any doubt about Alito’s allegiance with the Christian nationalist movement, it was laid to rest when a secretly taped conversation emerged of Alito talking with a progressive filmmaker, Lauren Windsor. We hear Alito in his own words, caught on tape, agreeing with Lauren Windsor who is posing as a Christian nationalist at a black tie private event.
You can listen to that conversation here:
Alito agrees with Windsor that believers need to fight “to return our country to a place of godliness.”
“I think that the solution really is winning the moral argument,” Windsor said. “People in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”
“Oh, I agree with you. I agree with you,” Alito says.
WHAT CAN BE DONE TO FORCE THE SUPREME COURT TO COMPLY WITH REASONABLE STANDARDS OTHER JUDGES MUST FOLLOW
Right wing extremist Republicans in our country are pushing for a theocratic dictatorship with Trump in power and they are taking a no holds barred approach to gaining that power. They probably see this next election as their best chance to get that willing dictator, Trump, into the presidency and then use the authoritarian playbook they have actually published- Project 2025, https://time.com/6986995/what-is-project-2025/ to end our democracy and install minority rule, a theocracy and dictatorship they will pretend is a democracy just as Putin does.
These extremists reject the rules, the laws, and the norms that our democracy has relied on for decades, believing that their higher purpose justifies their acts. They use those rules to gain power with the goal of dismantling the democracy once they assume power. This playbook is how Victor Orban, Vladimir Putin, Hitler and other autocrats got into power.
The Supreme Court is just one part of the larger plan. But their success with this Court emboldens them.
When it comes to the Supreme Court, it is crucial for Democrats to respond to the imminent threat to our democracy by forcing the justices to comply with a code of ethics. The Supreme Court must abide by the same rules that apply to all other federal court judges and they should be held accountable if they do not. This will only happen if the Democrats win back control of congress including the House, because they will need to use the power of the purse to force acquiescence.
THE SUPREME COURT ETHICS, RECUSAL, AND TRANSPARENCY ACT
Senate Judiciary Committee has produced the Supreme Court Ethics, Recusal, and Transparency Act, which would require the Supreme Court to adopt a binding code of conduct and develop a process for enforcement. It would also require the Court to adopt rules requiring disclosure for gifts, travel, and income that are at least as rigorous as analogous House and Senate Rules. And it would strengthen recusal rules by, among other things, requiring a written explanation of recusal decisions and creating a mechanism for review of recusal requests. (Brennan Center)
As the history of congressional regulation of Supreme Court ethics makes clear, it is squarely within Congress’s constitutional power to ensure the integrity of a coequal branch by holding Supreme Court justices to high ethical standards. Since the founding, Congress has played a central role in regulating the ethical conduct of the justices, first by requiring them to take an oath written by Congress. Congress also sets the terms by which federal judges, including Supreme Court justices, retire and how they are compensated.
Since 1948, Congress has required the justices to recuse themselves from cases in certain circumstances, including in any proceeding in which their impartiality might reasonably be questioned. At the same time, the law does not provide a clear mechanism to challenge a justice’s failure to recuse, leaving a great deal of discretion in the hands of justices with conflicts of interest. As for disclosure, Congress has required the justices to disclose their financial holdings and regulated other sources of income since 1978, with increased transparency requirements around securities transactions enacted on a bipartisan basis just last year. But the justices currently embroiled in scandals involving the failure to disclose information about gifts maintain that the law does not require such disclosure.
Congress’s mandate to “make all Laws which shall be necessary and proper for carrying into Execution [its enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States” implicitly grants Congress the authority to enact a wide range of legislation to facilitate the exercise of judicial power. This includes ethics legislation, which safeguards the legitimacy of the Court by protecting the quality of its decision-making. Moreover, Congress has the ultimate power to impeach and remove justices for bad behavior, which justifies regulation to ensure good behavior. (Brennan Center)
FORCING ACCEPTANCE
Congress must threaten to and/or actually withhold all funding from the Court unless the Supreme Court agrees to accept these ethics rules. It is in the interest of the Supreme Court to comply because at 40% approval, this Court continues to have the lowest rating in our country’s history. This Supreme Court has lost the respect and faith of Americans.
