The law is what they say it is
Remember when conservatives accused the left of having no morals, of situational ethics?Remember when conservatives pretended to believe in “a transcendant moral order“? As Archie and Edith sang in the post-1960s, “Those were the days.”
Now nullification is back. Election denialism is in vogue. (Kari Lake still insists she is the rightful governor of Arizona.) Supreme Court Justice Neil Gorsuch over the last five years “felt obliged to disclose his receipt of a fishing rod, a watercolor painting, and cowboy boots” in his financial disclosures. Justice Samuel Alito disclosed the gift of a “bronze cast of hand,” tweets Mark Joseph Stern. Yet Justice Clarence Thomas “refused to disclose trips on a billionaire’s private jet for his own personal pleasure.” The Thomas expose from Pro Publica would be beyond belief except for not being.
Ruth Marcus is aghast at the ruling in Texas on Friday to strip FDA approval of a pharmaceutical abortion pill available and proven safe for over 20 years:
Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.
Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.
Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.
And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.
We just cannot escape the shadow of Reconstruction, can we?
Kacsmaryk is yet another ideologue in robes, Marcus laments.
At his confirmation hearings, Kacsmaryk testified that federal judges are bound “to read the law as it is written and not read into it any policy preference that they might have had before they were judges.”
So, let’s look what he did Friday. Given the nationwide attention to the case, you might have thought that Kacsmaryk would have taken pains to appear as judicious as possible. But no: A dozen sentences into the opinion, his personal views about abortion become unmistakable. Mifepristone, Kacsmaryk writes, “is a synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.”
Marcus details eyewash citations Kacsmaryk uses to support legal reasoning he is making up as he goes. The language of his ruling is more advocate than jurist.
“This is a judge who knows what conclusion he wants to reach and is going to do what he must to get there — facts, fairness and law be damned,” Marcus concludes. He’s not even pretending.
Nor is the former Republican Party. Anywhere.