Justice Alito SO MAD YOU GUYS That Fellow Conservatives Won't Sell Their Whole Souls To Ban Abortion

Whiiiiiiiiiiiiine.

Last night the Supreme Court stayed a ruling by Texas federal Judge Matthew Kacsmaryk which would have banned the common medication abortion drug mifepristone. Also last night, Justice Sam Alito showed his whole ass . Again .

In a four-page tantrum, he railed against his fellow conservatives for failing to support him in an exercise of raw power, unmoored from facts, law, or precedent. To call his histrionics unbecoming of a federal judge is like saying Elon Musk's rocket encountered some turbulence on landing. It was, in a word, disgusting. Only Justice Clarence Thomas would have joined Alito in allowing the Fifth Circuit's modified version of Kacsmaryk's ban to go into effect, and even he wasn't willing to sign on to Alito's screed.

Justices aren't required to register their opinions on emergency orders — that's why they call it the shadow docket . It's entirely possible that, among the seven justices who apparently acquiesced to the stay, a couple of the conservatives will vote to ban mifepristone when the issue comes back around. But judging from Alito's broadside, in which he obliquely attacked not just liberal Justices Kagan and Sotomayor, but also Justices Kavanaugh and Barrett, there is major skepticism about this case, even among the court's conservatives. As well there should be! The theory of standing here is ridiculous, as we've said before .

With their 6-3 majority poised to roll back fifty years of social policy in ways which are wildly unpopular with the American public, the Supreme Court's conservative wing has been broadly criticized for using the shadow docket to enact policy by stealth. The practice of issuing a ruling without bothering with briefing and oral arguments was once reserved for emergencies. No longer . And no one has pushed back harder against criticism of the shadow docket than Alito, who not only demands the right to jettison precedent and procedure, but insists on his divine right to be regarded as legitimate while doing so.

Perhaps mindful of the danger of showing the public that the Supreme Court has become just another tool for Republicans to enact their countermajoritarian Christian nationalist agenda, the three Trump-appointees appear to have joined Chief Justice Roberts in attempting to salvage the last vestige of the court's legitimacy. So instead of blessing the lower courts' rulings and allowing three assholes named Matt, Andy, and Kurt to drastically remake social policy through facially preposterous legal theories and outright lies, they pumped the brakes last night. And because Alito can't very well say "You guys, I thought we all agreed to play dumb and let the Fifth Circuit ban abortion now that we have all the power," instead he attacked them for using the shadow docket to do it. Something he himself has been doing all along.

"In recent cases, this Court has been lambasted for staying a District Court order 'based on the scanty review this Court gives matters on its shadow docket,'” he began, citing a dissent by Kagan to a shadow docket decision in 2022 which shitcanned a lower court's ruling that Alabama's electoral maps were illegally discriminatory. He went on to cite criticism of conservative shadow docket decisions to allow Texas's abortion ban to go into effect, tacitly overturning Roe v. Wade , and greenlighting Trump's "remain in Mexico" immigration policy — both decisions on the Court's shadow docket.

"I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here," he huffs, without explaining how the policy which he angrily defended is somehow illegitimate when used by people he doesn't like.

"At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim," he goes on, breezily waving away the reality that even the Fifth Circuit's modified stay would result in every single package of mifepristone being "mislabeled", ban the generic version of the drug, and force women to take three times the currently recommended dosage by reversing the latest medically-approved dispensing protocol. Alito blames the DOJ for the regulatory chaos that would be unleashed by allowing the Fifth Circuit's order to go into effect while a federal judge in Washington has ordered the FDA to do exactly the opposite within the 17 states plus DC which sued to keep mifepristone on the market. The Justice Department was obliged to appeal the Washington ruling, he insists, citing no particular precedent.

Sure, we know Alito's not going to recognize the FDA's interest in carrying out its statutory mandate to regulate drug manufacture and distribution in this country, much less the right of women to access medication abortion. But you'd think he'd accept that barring Danco, the pharma company which markets mifepristone, from selling its product would rise to the level of a cognizable legal harm. Well, you would if you'd just woken up from a two-decade coma and expected Supreme Court justices to act with even a modicum of legal consistency. Instead Alito suggests that Danco wouldn't be harmed because the FDA would likely exercise its enforcement discretion not to curtail Danco's sale of the drug, and anyway "the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases[.]"

Why, yes, he did just accuse the Biden administration of lawlessness, because the man is out of his fucking gourd. And lest we forget, the plaintiffs' standing in this case is based on the theory that some anti-choice doctor somewhere will have to save the life of a woman who got prescribed mifepristone by mail and had a bad reaction.

From here, the case goes back to the Fifth Circuit for an expedited briefing on the merits. It will get a different three-judge panel, although the pool is stacked with lunatic Trump appointees so don't get your hopes up. Or maybe, hope a little, since the tea leaves suggest that there's no real appetite at the Supreme Court to use this particular case to ban medication abortion nationwide.

[ Alliance for Hippocratic Medicine v. FDA , trial docket via Court Listener / Alliance for Hippocratic Medicine v. FDA , appellate docket via Court Listener / State of Washington v. FDA , docket via Court Listener / FDA v. Alliance , SCOTUS docket]

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