'The greatest irony': Right-wing judges are killing MAGA movement
Fed up with the immoral criminal lawlessness of top GQP leadership.
U.S. District Judge Matthew J. Kacsmaryk’s widely panned ruling blocking the Food and Drug Administration’s approval more than 20 years ago of an effective and safe medication, mifepristone, used both for medical abortions and to treat miscarriages, is another in a string of decisions from right-wing judges that may well boomerang on the MAGA movement. The decisions have revealed its true reactionary face.
Kacsmaryk’s opinion (which the Justice Department appealed on Monday and moved to stay) displays the three telltale characteristics of Trump-appointed judges’ opinions: Contempt for the law, sleight of hand on the facts and partisan language more appropriate to a MAGA rally than a courtroom.
On the law, Kacsmaryk ignored the six-year statute of limitations on FDA challenges and trashed any semblance of “standing.”
Kacsmaryk “said physicians who may treat patients who have side effects from medical abortions prescribed by someone else are sufficiently injured by mifepristone to sue,” writes Mark Joseph Stern for Slate. “Kacsmaryk’s logic would essentially abolish the standing requirement for lawsuits against drug approvals by creating a special exception out of thin air. That is not the law.”
Moreover, the judge’s reliance on the 1873 “anti-vice” Comstock Act smacks of utter desperation to find any rationale for his desired result. The law, which included a wildly overbroad ban on mailing any “thing” that could be used in an abortion, was an obvious government prior restraint on speech. Comstock was largely invalidated by the Supreme Court’s 1965 ruling in Griswold v. Connecticut.
“Over sixty years ago, the interpretation of the Comstock Act endorsed by Judge Kacsmaryk was already recognized as part of a bygone era,” constitutional scholar Michael C. Dorf writes. He also notes that a December 2022 memo from the Justice Department’s Office of Legal Counsel explains in detail that “the relevant provision of the Comstock Act has long been read to forbid the mailing of materials only for illegal abortions.” Federal courts held that position well before the passage of Roe v. Wade, he adds, and thus the rulings survive the Supreme Court’s overturning of that law.
Kacsmaryk’s ruling also makes factual assertions that are “scientifically baseless and infused with hostility to abortion,” constitutional scholar Kate Shaw writes in a New York Times op-ed, “including that the FDA failed to consider ‘the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.’”
The American College of Obstetricians and Gynecologists lambasted the decision as “inflammatory” and “brazenly” substituting “the court’s judgment for that of trained professionals.”
And Kacsmaryk’s decision displays the voice of an overtly antiabortion advocate. Any pretense of judicial impartiality was dispensed with when he insisted on calling the fetus an “unborn human,” referring to “fetal personhood” and asserting that women who have abortions “often experience shame, regret, anxiety, depression, drug abuse and suicidal thoughts.”
Given that Kacsmaryk’s decision has heaped fuel onto the conflagration caused by the overturning of Roe v. Wade, Republicans might want to ponder: Is the right-wing judiciary as a whole a threat to the MAGA movement’s viability?
It is one thing to gin up the base on invented threats from critical race theory or the “great replacement theory.” But when the MAGA movement’s judges begin to inflict radically unpopular edicts on those outside the right-wing audience, that risks sparking a counter-response: a determined, broad-based movement insistent that the United States not turn the clock back on decades of social progress.
Republican setbacks such as the disappointing 2022 midterms, a progressive Democrat last week winning a crucial Wisconsin Supreme Court seat and rising support for abortion rights over the past year suggest that conservatives may have won the battle to stack the courts with ideologues but might be losing the war for public opinion and, ultimately, electoral control.
The more the Supreme Court diverges from overwhelming public sentiment on issues such as abortion, guns and voting rights, the more strength and more allies the progressive movement may gain.
Writing in the Atlantic, Ronald Brownstein considered the current Supreme Court’s “backward-facing crusade” and found historical echoes in the 1850s and 1930s. “In each of those decades, a Supreme Court that also was nominated and confirmed primarily by a political coalition reflecting an earlier majority similarly positioned itself as a bulwark against the preferences of the emerging America.”
The court, Brownstein says, with its deplorable slavery-preserving Dred Scott decision in 1857, helped drive the nation toward the Civil War and emancipation. In the 1930s, the court tried to derail President Franklin D. Roosevelt’s New Deal programs but ultimately acquiesced, ushering in wide acceptance for an activist federal government.
Radical judges who would impose their will on modern America make themselves a target for a movement that pushes back on the courts’ decisions and on the courts themselves. No wonder that there are rising calls for expanding the Supreme Court as well as lower courts (to dilute right-wing judges’ power); limiting Supreme Court terms; and stripping jurisdiction from the Supreme Court. Support for progressive state judicial candidates who vow to act as a counterweight to right-wing judicial imperialism is almost inevitable.
Republicans cannot very well tell their appointees to cool it; they certainly cannot contain the blowback their judges unleash. The greatest irony of Donald Trump’s presidency might be that the “accomplishment” that most thrilled right-wingers may accelerate the vanquishing of a movement that is at odds with the values and sensibilities of most Americans. And the power of the judiciary itself may be one of the casualties.
Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump.”
