Apr.20

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GOP 49

Supreme Court Needs More Time

Last week, when he temporarily stayed the anti-mifepristone decision(s) made by Matthew Kacsmaryk and by the Fifth Circuit Court of Appeals, Associate Justice Samuel Alito said that the Supreme Court would have a proper response by... last night. However, the Court was not ready to rule, and so instead, Alito gave himself and his eight colleagues two more days to work on it. The new deadline, assuming it's not extended again, is Friday.

Naturally, only the Supremes know what's going on here. That's said, let's run down the possibilities, from most to least likely (in our opinion):

• They Don't Have a Majority: Keep in mind that there are currently two mifepristone decisions in place, and they are in conflict with each other. The decisions out of Texas and the Fifth Circuit ban the drug, each of them using some dubious legal reasoning. The decision out of Washington keeps the drug legal in 17 states and D.C. Given how messy this has become, it may be that there is currently no interpretation of things that has five votes. And if the Supremes can't get to five votes, then both lower court decisions would stand, which would mean some significant level of chaos.
  
  
• They Do Have a Majority, But Someone Is Buying Time: Alternatively, it could be that there is a majority (probably a bare majority, if this is the scenario) for some interpretation, but one of the justices is buying time to try to flip one of his colleagues. If so, there are really only two justices it could be. The first is Alito, who is staunchly anti-abortion, and who might want an extra 48 hours to work on Brett Kavanaugh, Neil Gorsuch or Amy Coney Barrett to get them on the side of upholding the ban (we assume, in this scenario, that Clarence Thomas would already be voting with Alito and that Chief Justice John Roberts and the three liberals would not be). The second justice who could be delaying things is Roberts, who might suspect (rightly) that upholding the Kacsmaryk decision would be disastrous for the Court's reputation, and who might be trying desperately to peel off one of the five conservatives to join him and the three liberals.
  
  
• They Are Pulling a Nixon: Richard Nixon famously tried to bury unfavorable news by arranging for it to be released on Friday or Saturday nights (hence, for example, the Saturday Night Massacre). Very hard to believe that would be the motivation here, as there is no truly dead part of the news cycle anymore, thanks to the Internet, cable news, etc. If SCOTUS uncorks something wild, you're going to hear the howls of protest from sea to shining sea, regardless of whether they do it on Friday night at 11:59 p.m. or Wednesday at noon. But we try to consider all possibilities.
  
  
• They Can't Reach Someone: This used to be a real problem... 100 years ago. Written decisions, and that is presumably what's coming here, have to be signed by all the participating justices. And if one of them is unavailable, that can't happen. Back in the 1920s and 1930s, for example, James Clark McReynolds was famous for departing town on unannounced hunting trips, leaving Chief Justice William Howard Taft to fume while he waited for his colleague's signature. In a world with cell phones and FedEx, we just can't see how this could be happening today. Although, with the exotic vacations to faraway locales that Clarence Thomas takes on Harlan Crow's dime, you never know. Maybe he's summiting Everest right now, or personally inspecting the wreckage of the Titanic, or seeing Machu Picchu up close.

Whatever is going on, we'll find out a lot more on Friday... unless we don't. Note that there is a wide range of possible outcomes here; the Court couple plausibly extend OR lift the injunction while the case is worked out. Alternatively, they could make some sort of final ruling that ends all deliberation. They have all the information they need, for example, to decree that the plaintiffs in Texas did not have standing to sue (as they have not been injured by mifepristone), or that the statute of limitations for challenging an FDA decision had long passed (which it had). Stay tuned. (Z)