Judicial Judgemanship

Right-Wing Justices Toss Scraps To Anti-Abortion Movement While Unable To Embrace Its Shoddy Argument https://t.co/qt7vboltEy via @TPM

— Josh Marshall (@joshtpm) March 26, 2024

Justice Samuel Alito, one of the most doggedly devoted members of the bench to reverse engineering even doily-like arguments into his preferred outcome, tried valiantly to put a gloss on the anti-abortion case. 

Is the FDA “infallible?” he challenged the government. Isn’t it “obvious” that lifting multiple restrictions at once may have a different effect in combination, he mused, parroting the anti-abortion group’s argument. He sneered that the manufacturer of branded mifepristone’s injury is just monetary — a refreshingly dismissive take on corporate interest from a right-wing judge. 

“So your argument is it doesn’t matter if FDA flagrantly violated the law, it didn’t do what it should have done, it endangered the health of women, it’s just too bad, nobody can sue in court?” he asked U.S. Solicitor General Elizabeth Prelogar. But the fight went out of Alito as the arguments went on and it became clear that his peers were, at the least, highly suspect of the legal underpinnings of the challenge.

More and more I’m convinced Alito leaked his Dobbs decision so he could take an early victory lap. That argument this week would embarrass a law student in moot court, and yet it’s made by a senior member of the highest court in the land.

Pretty sure the “fight went out of Alito” after this:

“So you were asked if the agency is infallible, and I guess I'm wondering about the flip side, which is do you think that courts have specialized scientific knowledge with respect to pharmaceuticals, and as a company that has pharmaceuticals, do you have concerns about judges parsing medical and scientific studies?" [Justice Ketanji Brown] Jackson said. 

"I think we have significant concerns about that, and there are two amicus briefs from the pharmaceutical industry that expand on why exactly that's so concerning for pharmaceutical companies who do depend on FDA's gold standard review process to approve their drugs and then to be able to sell their products in line with that considered judgment," Ellsworth replied.

Alito really needs to stay in his lane. Or resign. Resign would be better. Better yet is Congress passing a law that the resignation age of federal judges apply to the Supremes as well. Lock their chambers if they don’t comply.

The Supremes are gettin’ too big for their britches. Time Congress reminded them they’re an Art. III institution, not Art. IA.