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An embarrassing confession


I actually thought that today the SCOTUS might toss out Judge K’s utterly absurd preliminary injunction in the abortion pill case in an unsigned per curiam opinion, thus using this occasion to prove once and for all that the Court is Above Politics, so stop threatening us with term limits, expansion, investigation of our griftier members etc.

Instead we got this:

The Supreme Court has temporarily extended women’s access to an abortion pill until Friday while the justices consider whether to allow restrictions on mifepristone to take effect as a legal challenge to the medication’s Food and Drug Administration approval continues.

In an order signed by Justice Samuel Alito on Wednesday, the court indicated it will act by Friday night. Alito provided no explanation for why the court put off a more lasting decision.

What this means is that there’s some sort of Very Serious Argument going on among the justices about how to deal with this situation.

Let me try to put this legal proceeding into terms that non-lawyers can appreciate.

Suppose a group called Americans For Real Democracy filed a suit asking me, a federal judge, to grant a preliminary injunction barring the US Congress from considering further legislation until California is granted 13 senators, thus reflecting the state’s share of the nation’s total population.

Furthermore, suppose that nobody in this group has ever even been to California, and in fact they all currently live in France. Suppose the reason they give for asking me to grant a preliminary injunction is that their legal claim — that California has a constitutional right to 13 senators — is very likely to succeed on the merits, and in addition they will all individually and collectively suffer irreparable harm if any further legislation is passed by Congress while California only has two senators, not 13.

Now here’s the thing: I personally think California should have 13 senators, because I consider the US senate to be a horrible institution. But here’s the other thing: this lawsuit doesn’t have any basis in the actual laws of the United States, at all. It’s not even a “creative “argument, boldly going to strange new worlds, new civilizations, where no legal argument has gone before. It’s preposterous, frivolous, utterly without merit, and something that any member of the bar should be sanctioned for arguing.

And the most absurd part of it is the claim that if I, an overfed long-haired leaping gnome, district judge somewhere to the south of New York City don’t grant a preliminary injunction to stop the Congress from passing laws until this highly likely to succeed legal claim has it’s full day in court, I will be violating the legal rights of Americans For Real Democracy, as they munch on foie gras in Lyon or wherever.

That’s what’s going on here. That the SCOTUS didn’t instantly lift the injunction in this case is simply giving some sort of credibility to legal claims that, to put it mildly, have none.

This analogy breaks down at some point, however, and that point is this: If I were to issue an injunction barring Congress from legislating until California got its 13 senators — an outcome, again, which I passionately favor as a political matter — I don’t think I’d get glowing profiles in the NYT and the WAPO, quoting a right winger or three about what an objective and careful judge I am, who would never let my political beliefs get in the way of my strictly legal judgments.

In this as in so many other ways, we are involved in a very asymmetrical form of war by other means.

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