"I see no basis for believing that the judge will act in bad faith in this case or any other." Going to stay with that take, now that his opinion, which was a legal travesty, has come out? He clearly didn't care about any of the real issues with the case, lack of standing, timeliness, 23 years of demonstrated safety and presented the word with word salad completely ungrounded in either facts or the law.
It's an extraordinary order, overcoming each hurdle that you describe in detail above and giving extremely short shrift to defendants' arguments. Of course this was accurately predicted by those who you charge above with engaging in inappropriate and unfair commentary.
I could barely get through the first page of that order without getting violently angry. I don’t understand how 67 pages of lies can be accepted as law.
Perhaps now that Judge Kacsmaryk has acted in bad faith (in this and several other cases) you might want to reconsider this section of your otherwise excellent article -- these judges are not Gods, and they're not impartial (I clerked for two federal judges early in my career), but mostly they try to be fair and follow "the law." Kacsmaryk had already shown he is just a partisan, radical, ideological hack -- you should have been smart enough to figure that out up front, instead of trying to pretend otherwise. To quote a writer rather than a legal scholar, "When someone shows you who they are, believe them the first time."
"Many articles have accused the presiding district judge of being biased based on his legal advocacy before his appointment as well as second-hand descriptions of his personal views. I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other."
>> I see no basis for believing that the judge will act in bad faith in this case or any other.
So now that the judge has (in consonance with pretty much his entire philosophical track record) found a path to victory for the plaintiffs despite the manifest defects in their case that you so ably detailed here, can we perhaps conclude that he really IS the ideologue conservative judge-shoppers were hoping for?
Stumbled upon this article while browsing twitter at an altogether too late hour of the night, and subsequently devoured it and your backlog (and did not sleep for a while!). Really excellent writing. Your experience with both the law and precedent underpinning judicial decisions, and the practical dimensions that inform genuine reasoning about potential outcomes, really shines through. You also complement that expertise with a fun writing style, a healthy dose of humor, and an efficiency that ensures your deep explorations never get bogged down. A really wonderful newsletter and I look forward to future editions.
One question on this topic: you make a compelling case the Supreme Court will reject this claim. You're also clear that you'd rather not predict the Northern District of Texas or the Fifth Circuit. But assuming there's some chance that they accept the plaintiff's claims, what would that most likely be grounded in? I appreciated the way you sketched, for example, how the Biden Always Loses doctrine could play out in various counter-factuals in the Title 42 article.
Thank you again for the great writing and the great work.
Thanks so much for the comment, that is a wonderful compliment! Much appreciated. In terms of how the lower courts will navigate these issues, I’m not sure I have any insight other than that we’ll find out very soon.
Thanks for the thorough explanation of the issues. I particularly appreciated your discussion of National Biodiesel Board and Sendra Corp., which was new to me. Of course the weaknesses in the plaintiffs’ case apply a fortiori to the extraordinary pending request for a status-quo-altering preliminary injunction.
I do take issue with other points in your piece, however.
You are free to exclude from your post any discussion about how Judge Kacsmaryk is likely to rule, but it is not “unfair” to engage in such speculation. The plaintiffs obviously see this judge as likely to provide a relatively favorable ruling, as they specifically selected him (in which light this amicus brief from last fall may be of interest https://www.supremecourt.gov/DocketPDF/22/22-58/238153/20220919121623671_22-58%20tsac%20Vladeck.pdf). The rest of us need not pretend that this context does not exist.
As a lawyer, Mr. Kacsmaryk was certainly entitled to represent whatever client he wished (and to publish whatever non-legal advocacy he desired); it does not follow, however, that we are obligated to extend to him the benefit of the doubt as to his objectivity. Not all zealous advocates can be reasonably expected to faithfully fulfill the duties of a federal judge. Indeed, this essentially the job (in part) of the US Senate to perform this assessment, and the job of journalists to discuss it. Other commentators and the general public should not be regarded as subject to tighter constraints. Moreover, those articles you refer to are almost certainly not based only on Judge Kacsmaryk’s pre-appointment career, as you suggest, but also on his rulings in the Amarillo Division.
I wish I shared your confidence that the Supreme Court would uphold the law in the event this case makes it there, but I do not. In particular, I am skeptical that the Supreme Court’s position on standing is as firm as you describe. Consider the oral argument in Biden v. Nebraska (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-506_22p3.pdf), which occurred just a few days before your post. In that argument, none other than Justice Alito can be seen to be searching assiduously for a way around the court’s ostensible standing doctrine, quite possibly with Thomas, Roberts, Gorsuch and Kavanaugh in agreement. And while you acknowledge that the involvement of abortion makes the Supreme Court more likely to side with plaintiffs, I see a substantial probability that the court may set significant precedent aside to do so, consistent with their ruling in Whole Woman’s Health v. Jackson, in which the majority upheld the Texas law at issue even as the Chief Justice protested that it threatened the very “role of the Supreme Court in our constitutional system.”
Finally, your suggestion that the original plaintiffs considered in Clapper sought standing on the basis that they “regularly communicated with foreign terrorists” appears unduly prejudicial. First, the lawyers in question represented individuals accused of terrorism, some of whom may have been convicted of such charges and some of whom were, in fact, acquitted. Secondly, as Justice Breyer points out, the statute in question would allow monitoring of communications not just with those suspected of terrorism but also with others, such as their family members. In that light, your statement that “the whole point of the statute was to monitor the communications of foreign terrorists” fails to provide the appropriate nuance.
Thank you for your very helpful analysis. But I notice that you did not address the substance of the the Comstock Act argument -- that is, that the FDA's actions are barred by the express terms of the Comstock Act. Do you have a view with respect to that issue?
Thanks for the comment, much appreciated! Even if the issue had been raised, I would not think the FDA’s actions are barred by the Comstock Act. I don’t think the FDA is in the business of interpreting and enforcing criminal laws regarding whether particular articles are “nonmailable matter.” Its role is to determine the safety and efficacy of medicines. Criminal prosecution is the DOJ’s job. As for whether mailing of mifepristone violates the Comstock Act, I found the Office of Legal Counsel’s reasoning on this issue to be persuasive, but the issues are not clear cut and there is room for reasonable disagreement on this question. That said, in general private plaintiffs cannot compel enforcement of criminal laws. If DOJ concludes it should not bring criminal prosecutions under the Comstock Act, that decision is not reviewable by the courts.
Maybe someone could clarify something for me as to standing. I can’t remember the names of the parties, but there was a woman web designer who sued because she didn’t want to make websites for gay weddings. However as I understand it, she had never made any website for any weddings, much less a gay wedding. So she had not suffered any damages. How could she have standing?
It’s a fair question. The website designer in that case alleged there was a risk the law would be enforced against her. I agree that is somewhat speculative - perhaps the subject of a future post - but the law at least arguably regulated her conduct. Here, the plaintiffs do not allege that the law regulates their conduct, so the theory of standing is more attenuated. Thanks for the comment and engagement!
"I see no basis for believing that the judge will act in bad faith in this case or any other." Going to stay with that take, now that his opinion, which was a legal travesty, has come out? He clearly didn't care about any of the real issues with the case, lack of standing, timeliness, 23 years of demonstrated safety and presented the word with word salad completely ungrounded in either facts or the law.
...And Judge Kacsmaryk has now sided, overwhelmingly, with the plaintiffs, ordering a stay of the FDA's approval (though staying the effective date of the order to allow the government to appeal): https://www.documentcloud.org/documents/23746119-read-texas-federal-judge-ruling-on-abortion-pill
It's an extraordinary order, overcoming each hurdle that you describe in detail above and giving extremely short shrift to defendants' arguments. Of course this was accurately predicted by those who you charge above with engaging in inappropriate and unfair commentary.
I could barely get through the first page of that order without getting violently angry. I don’t understand how 67 pages of lies can be accepted as law.
Perhaps now that Judge Kacsmaryk has acted in bad faith (in this and several other cases) you might want to reconsider this section of your otherwise excellent article -- these judges are not Gods, and they're not impartial (I clerked for two federal judges early in my career), but mostly they try to be fair and follow "the law." Kacsmaryk had already shown he is just a partisan, radical, ideological hack -- you should have been smart enough to figure that out up front, instead of trying to pretend otherwise. To quote a writer rather than a legal scholar, "When someone shows you who they are, believe them the first time."
"Many articles have accused the presiding district judge of being biased based on his legal advocacy before his appointment as well as second-hand descriptions of his personal views. I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other."
>> I see no basis for believing that the judge will act in bad faith in this case or any other.
So now that the judge has (in consonance with pretty much his entire philosophical track record) found a path to victory for the plaintiffs despite the manifest defects in their case that you so ably detailed here, can we perhaps conclude that he really IS the ideologue conservative judge-shoppers were hoping for?
Stumbled upon this article while browsing twitter at an altogether too late hour of the night, and subsequently devoured it and your backlog (and did not sleep for a while!). Really excellent writing. Your experience with both the law and precedent underpinning judicial decisions, and the practical dimensions that inform genuine reasoning about potential outcomes, really shines through. You also complement that expertise with a fun writing style, a healthy dose of humor, and an efficiency that ensures your deep explorations never get bogged down. A really wonderful newsletter and I look forward to future editions.
One question on this topic: you make a compelling case the Supreme Court will reject this claim. You're also clear that you'd rather not predict the Northern District of Texas or the Fifth Circuit. But assuming there's some chance that they accept the plaintiff's claims, what would that most likely be grounded in? I appreciated the way you sketched, for example, how the Biden Always Loses doctrine could play out in various counter-factuals in the Title 42 article.
Thank you again for the great writing and the great work.
Thanks so much for the comment, that is a wonderful compliment! Much appreciated. In terms of how the lower courts will navigate these issues, I’m not sure I have any insight other than that we’ll find out very soon.
Adam, Is it true that your law firm represents Planned Parenthood in this very case? If so, that seems like a potential conflict of interest that should be disclosed in your posts. https://www.nationalreview.com/corner/adam-unikowskys-law-firm-represents-planned-parenthood/
Thanks for the thorough explanation of the issues. I particularly appreciated your discussion of National Biodiesel Board and Sendra Corp., which was new to me. Of course the weaknesses in the plaintiffs’ case apply a fortiori to the extraordinary pending request for a status-quo-altering preliminary injunction.
I do take issue with other points in your piece, however.
You are free to exclude from your post any discussion about how Judge Kacsmaryk is likely to rule, but it is not “unfair” to engage in such speculation. The plaintiffs obviously see this judge as likely to provide a relatively favorable ruling, as they specifically selected him (in which light this amicus brief from last fall may be of interest https://www.supremecourt.gov/DocketPDF/22/22-58/238153/20220919121623671_22-58%20tsac%20Vladeck.pdf). The rest of us need not pretend that this context does not exist.
As a lawyer, Mr. Kacsmaryk was certainly entitled to represent whatever client he wished (and to publish whatever non-legal advocacy he desired); it does not follow, however, that we are obligated to extend to him the benefit of the doubt as to his objectivity. Not all zealous advocates can be reasonably expected to faithfully fulfill the duties of a federal judge. Indeed, this essentially the job (in part) of the US Senate to perform this assessment, and the job of journalists to discuss it. Other commentators and the general public should not be regarded as subject to tighter constraints. Moreover, those articles you refer to are almost certainly not based only on Judge Kacsmaryk’s pre-appointment career, as you suggest, but also on his rulings in the Amarillo Division.
I wish I shared your confidence that the Supreme Court would uphold the law in the event this case makes it there, but I do not. In particular, I am skeptical that the Supreme Court’s position on standing is as firm as you describe. Consider the oral argument in Biden v. Nebraska (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-506_22p3.pdf), which occurred just a few days before your post. In that argument, none other than Justice Alito can be seen to be searching assiduously for a way around the court’s ostensible standing doctrine, quite possibly with Thomas, Roberts, Gorsuch and Kavanaugh in agreement. And while you acknowledge that the involvement of abortion makes the Supreme Court more likely to side with plaintiffs, I see a substantial probability that the court may set significant precedent aside to do so, consistent with their ruling in Whole Woman’s Health v. Jackson, in which the majority upheld the Texas law at issue even as the Chief Justice protested that it threatened the very “role of the Supreme Court in our constitutional system.”
Finally, your suggestion that the original plaintiffs considered in Clapper sought standing on the basis that they “regularly communicated with foreign terrorists” appears unduly prejudicial. First, the lawyers in question represented individuals accused of terrorism, some of whom may have been convicted of such charges and some of whom were, in fact, acquitted. Secondly, as Justice Breyer points out, the statute in question would allow monitoring of communications not just with those suspected of terrorism but also with others, such as their family members. In that light, your statement that “the whole point of the statute was to monitor the communications of foreign terrorists” fails to provide the appropriate nuance.
Thank you for your very helpful analysis. But I notice that you did not address the substance of the the Comstock Act argument -- that is, that the FDA's actions are barred by the express terms of the Comstock Act. Do you have a view with respect to that issue?
Thanks for the comment, much appreciated! Even if the issue had been raised, I would not think the FDA’s actions are barred by the Comstock Act. I don’t think the FDA is in the business of interpreting and enforcing criminal laws regarding whether particular articles are “nonmailable matter.” Its role is to determine the safety and efficacy of medicines. Criminal prosecution is the DOJ’s job. As for whether mailing of mifepristone violates the Comstock Act, I found the Office of Legal Counsel’s reasoning on this issue to be persuasive, but the issues are not clear cut and there is room for reasonable disagreement on this question. That said, in general private plaintiffs cannot compel enforcement of criminal laws. If DOJ concludes it should not bring criminal prosecutions under the Comstock Act, that decision is not reviewable by the courts.
Maybe someone could clarify something for me as to standing. I can’t remember the names of the parties, but there was a woman web designer who sued because she didn’t want to make websites for gay weddings. However as I understand it, she had never made any website for any weddings, much less a gay wedding. So she had not suffered any damages. How could she have standing?
It’s a fair question. The website designer in that case alleged there was a risk the law would be enforced against her. I agree that is somewhat speculative - perhaps the subject of a future post - but the law at least arguably regulated her conduct. Here, the plaintiffs do not allege that the law regulates their conduct, so the theory of standing is more attenuated. Thanks for the comment and engagement!