The Supreme Court has right and far right wings. Their judges may not be who you would guess

(J Scott Applewhite/Associated Press)

The Supreme Court has right and far right wings. Their judges may not be who you would guess

Election 2024

David Lauter

March 29, 2024

Judicial liberals don’t have much influence on the U.S. Supreme Court these days. The real battles mainly take place between the extreme right within the court and the more traditional conservatives.

Tuesday’s argument over abortion pills was a perfect example, highlighting the stakes the 2024 presidential election will have on the court. In particular, it illustrated one of the ways in which a second term for former President Trump could differ dramatically from his first, including huge consequences for abortion rights.

Abortion endangers the Republican Party

The political backdrop to the Supreme Court’s argument is clear: The politics of abortion continues to rankle Republicans.

The GOP achieved a long-standing goal in 2022 when the newly strengthened conservative majority on the court Roe vs. Wade overturned the ruling that had guaranteed abortion rights across the country for nearly half a century. The court’s decision in Dobbs v. Jackson Women’s Health threw abortion policy back to the states, fifteen of which now ban all or nearly all abortions, while six more impose severe restrictions.

These bans have failed to reduce the number of abortions in the US, largely due to the wide availability of abortion pills. But they have sparked a wave of anger among voters, especially women, who have scuttled Republican candidates in swing districts and states.

The most recent example came a few hours after the Supreme Court argument, when a Democrat, Marilyn Lands, won a special election to fill a largely suburban legislative district in northern Alabama. Lands focused her campaign on reproductive rights.

Her landslide victory, a 25-point margin in a closely divided district, was the first test of voter sentiment since the Alabama Supreme Court ruled that frozen embryos created by

in vitro

Fertilization should be considered children under state law, a decision the state legislature hastily tried to overturn after an angry backlash from voters.

The Conservative Division

The lesson that many traditional conservatives have learned from their election defeats is that the Republican Party must distance itself from opposition on abortion. That may have influenced some of the Republican-appointed judges as they considered Tuesday’s challenge to the Food and Drug Administration’s rules allowing the widespread provision of mifepristone: They treated the case as an unwanted guest so had to be led out as quickly as possible with a star admonition. not to return.

For the far right judges, it represented something different: a missed opportunity for now and a chance to set markers for the future.

Attorney General Elizabeth B. Prelogar, representing the Biden administration, argued that the anti

An abortion group that wants to overturn the varnished rules is ready to take the case to court.

Standing refers to the legal principle that if you want to challenge a law or rule, you must be influenced by it; you can’t just have a general complaint.

The anti

Abortion doctors who brought the case claimed they were affected because one of them might be in the emergency room at some point if a woman who had taken mifepristone showed up to seek treatment for heavy bleeding, which was an incidental effect of the medicine. If that were to happen, they argued, they would be forced to choose between their conscientious objection to abortion and their duty to care for a patient.

Prelogar said these claims rely on a long series of remote contingencies that did not occur within a hundred miles of establishing status.

Most judges seemed to agree.

Even if the doctors were to stand, the proper remedy for their claim would be to say they cannot be required to participate in an abortion, a right they already have under federal law, Judge Ketanji Brown Jackson said.

Justice Neil M. Gorsuch agreed. “The case was a good example of turning what could be a minor lawsuit into a statewide legislative session over an FDA rule or other federal government action,” he said. He didn’t mean that as a compliment.

Gorsuch was, of course, appointed to the court by Trump. Another Trump appointee, Judge Amy Coney Barrett, also seemed skeptical that the doctors had standing. The third Trump appointee, Justice Brett M. Kavanugh, said very little, but the one question he asked suggested that he, too, would likely side with the FDA.

How Trump could ban abortion pills

Judge Samuel




and Clarence Thomas were the only members of the court who seemed open to the arguments of Erin Hawley, the lawyer representing the anti-government.

abortion group.

In their questions, both also returned to a related legal issue, the potential impact of an 1873 law known as the Comstock Act. That law, best known for banning “lewd” material from the mail, also bans any article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner intended to incite another person bring it to use or apply it for its production. abortion.

The law has not been enforced for decades, but was used repeatedly until the 1930s to prosecute people for sending contraceptives or even medical texts about contraception.

In 2022, the Justice Department issued a formal ruling that the law did not apply to mifepristone because the drug also has medical uses beyond abortion.

However, this ruling could be reversed by a future government. Anti

Abortion groups have made it clear that if Trump wins another term, they will make the Comstock Act a high priority.

The Comstock law is quite broad and specifically covers drugs like yours,” Thomas said at one point to Jessica Ellsworth, the attorney representing Danco Laboratories, which makes mifepristone. His comment sounded like a warning.

Why two of Bush’s judges, and not Trump’s, are far right

The comments from Gorsuch and Barrett on the one hand and Thomas and Alito on the other highlighted a paradoxical reality of the current court: The justices Trump has appointed to the court are not the ones most likely to side with the MAGA will choose movement. Instead, the far-right members, Thomas and Alito, were appointed by two avatars of the pre-Trump Republican establishment: President Bush, father and son.

That doesn’t mean the three Trump appointees are moderates. They are definitely conservative. But they are establishment conservatives.

During Trump’s term, the process of choosing and confirming Supreme Court justices was largely driven by Senate Majority Leader Mitch McConnell of Kentucky, working with Trump’s White House counsel, Don McGahn. Trump had relatively little to do with it, other than ratifying the final selections.

McConnell and McGahn looked for judges in their ideological image, not Trump’s.

George HW Bush, on the other hand, chose Thomas without knowing much about him. He wanted a black lawyer to replace Judge Thurgood Marshall, and he didn’t have many black Republican judges to choose from. The full scope of the new justice’s ideology was unknown when he was appointed.

Alito was more of a known asset when George W. Bush appointed him, but he wasn’t the president’s first choice. Bush had tried to get his counsel, Harriet Miers, in court. But he had to withdraw Miers’ name after fierce opposition from the right. Alito’s election was an attempt to limit political damage.

But McConnell will not be the Republican leader in the Senate, having already announced his plans to resign this year. And Trump is unlikely to appoint anyone to the White House staff like McGahn, who has repeatedly thwarted him on key issues.

Trump owes his political survival to the steadfast support of the right wing, especially conservative, evangelical Christians. Whatever restrictions the former Republican establishment previously managed to impose on him would largely be absent in a second term.

Hence Tuesday’s most important lesson: the Supreme Court has already moved significantly to the right, but it could go much further if Trump gets another term.


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