Photo by Sora Shimazaki
By now, you’ve heard that a federal judge in Texas has ordered the suspension of the FDA’s longstanding approval of mifepristone, also known as the “abortion drug.” The case seems likely to end up before the Supreme Court. But the reactions from the left were pretty striking — an exhortation to the White House to simply ignore the judge’s ruling.
Slate’s Dahlia Lithwick went the Andrew Jackson route:1
I’m not sure how widespread these views are. But I do know they’re in keeping with growing left-of-center contempt for the legitimacy of the conservative-dominated court system, and an increasing willingness to challenge the Marbury v. Madison ruling that gives the Supreme Court the final say on just about everything in America.
Meanwhile, over at the Trumpist website American Greatness, there’s a call for Donald Trump to simply defy the authority of the New York court system where he’s currently under indictment.
Earlier this week, former President Donald Trump surrendered to the New York City courts to face an indictment on 34 felony charges. The case arose from his accounting records of payments to a former paramour, Stormy Daniels. The indictment itself is garbage, the product of an extremely ideological prosecutor. …
Why did Trump surrender at all?
Alvin Bragg is a rogue prosecutor acting outside the boundaries of the law. Florida’s governor, Ron DeSantis, said he would not cooperate in any extradition. If Trump did not surrender, he might simultaneously have defied this nonsense charge and also put DeSantis, his likely opponent, in a bind.
The writer concludes:
Trump should take stock of very recent history. He cannot rely on the goodwill of the ruling class or even their fear of the American people because they have none. He cannot rely on traditional American institutions such as the rule of law or the jury system, particularly in a hostile jurisdiction like New York or Washington, D.C.
The old civic nationalist ethos does not apply, because he is not being treated normally and never has been. For the ruling class, he is below the law. The fact that this prosecution is garbage doesn’t mean they won’t find Trump guilty and throw him in prison.
Surrendering was a mistake. Respecting this crooked process and hoping for the best would be another.
Now, I don’t think the anger on these issues is equivalent. Anybody remotely familiar with Donald Trump understands that he has gotten away with a lot of stuff for a long time — his supporters are angry that the chickens are apparently coming home to roost and believe this is deeply unfair because they seem to think that any accountability for Trump is deeply unfair.
The abortion ruling, on the other hand looks like a pure exercise of judicial power without much in the way of law or precedent to back it up.
There is no legal precedent for a federal judge—who is not a doctor or a scientist or an expert in anything other than his own bile—to second-guess an FDA approval of a medicine that is two decades old. Moreover, all credible data show that mifepristone is safe. Indeed, mifepristone has been shown to be safer than Viagra, a drug that can be used by men to cause unwanted pregnancies. And mifepristone is widely used not just in the United States but across the world—again, with every data point showing that it is both safe and effective.
Needless to say, I’m more sympathetic to the left’s anger at the courts than the right’s.
But it still comes down to this: The judiciary is getting battered from both sides. Legitimacy isn’t just a function of the quality of the rulings — it really comes down to the willingness of the people to accept those judgments. And we’re edging toward a time where that won’t be true anymore. What happens after that, I don’t know. But I suspect it’ll be messy.
Wikipedia: In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!"[6][7] This quotation first appeared twenty years after Jackson had died, in newspaper publisher Horace Greeley's 1865 history of the U.S. Civil War, The American Conflict.
I have a lot of disagreements with Mystal, but not here. If SCOTUS gets the Texas case, it may be a unanimous reversal. The last thing any of the justices want to do is put trial courts in charge of reviewing long-standing FDA procedures and regulations. especially for products so thoroughly vetted. Thomas and Alito might wish chemical abortions didn’t exist, but they also retain some respect for separation of powers.