Reflections on AHM v. FDA

The rule of law prevails.

On April 21, 2023, the Supreme Court issued an order staying the district court’s decision in Alliance for Hippocratic Medicine v. FDA by a 7-2 vote.¹

The sole Justice to issue a written dissent was Justice Alito, and his heart was not in it. He did not endorse the lower courts’ decisions either on standing or on the merits. Instead, he led off his dissent by pointing out that in previous, unrelated cases, other Justices had disagreed with his own votes to grant stays. Next, he opined that the lower courts’ orders would not cause irreparable harm because the FDA could simply decline to enforce federal law, so nothing would change. I am not persuaded by this reasoning, but criticizing it seems uncharitable. The other dissenter, Justice Thomas, did not give a reason for his vote.

The Supreme Court’s order makes it likely that the FDA will ultimately prevail in this case. The legal standard for granting a stay requires the Court to assess the FDA’s prospect of success on the merits. Therefore, the Court’s order indicates that it believes the FDA will succeed on the merits. If the Court ultimately grants certiorari in this case, the parties’ briefs will be more elaborate. But their legal arguments, especially on standing, have been fully aired and I do not see how more thorough briefing would change the result. Moreover, it would be quite the bait and switch for the Court to flip on this a year from now.

The litigation will not stop. The FDA’s appeal of Judge Kacsmaryk’s order remains pending in the Fifth Circuit, which will hear oral argument on May 17. Depending on which Fifth Circuit panel hears the case, it is possible the Fifth Circuit will affirm Judge Kacsmaryk with respect to the FDA’s 2016 decision altering mifepristone’s safety restrictions, or maybe even—#YOLO—affirm Judge Kacsmaryk’s decision in its entirety. However, anticipating this possibility, the Supreme Court’s order states that the stay will remain in place even after the Fifth Circuit rules:

The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No. 2:22–cv–223, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

If the Fifth Circuit affirms, then the Supreme Court is likely to reverse the Fifth Circuit, most likely on the ground that the plaintiffs lack standing.

Yesterday’s ruling is not a surprise. Here is what I said in my first post on this case:

I will not venture a prediction on how the Northern District of Texas or the Fifth Circuit will rule. If the plaintiffs prevail in those courts, however, the Justice Department is likely to seek emergency relief from the Supreme Court. In my view, the Justice Department will likely prevail. If the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court. The plaintiffs are banking on the hope that because this is a case about abortion, the Court will bend ordinary principles of administrative law. I predict it will not.

This is indeed what occurred. The Supreme Court issues many controversial decisions, but when the law is clear, the Court follows it. This case is reminiscent of Texas v. Pennsylvania, in which Texas, with President Trump as a putative intervenor, moved to file a bill of complaint in the Supreme Court seeking to overturn the result of the 2020 presidential election. There was much speculation at the time that President Trump’s three Supreme Court appointees would attempt to reward their benefactor. Instead, the Court issued an order, joined by all three Trump appointees, denying Texas’s motion for leave to file a bill of complaint on the ground that Texas lacked standing. It was obvious that Texas lacked standing, and it is equally obvious that the Alliance for Hippocratic Medicine lacks standing.

(Dall-E couldn’t quite figure out that I wanted bricks ON one side of the scales, to depict the lopsided nature of the case. Instead we just have a skewed scale, with bricks in the background. Oh well, AI is getting better.)

How could the lower courts have reached a contrary conclusion? I have heard much commentary that this is the sort of thing “Trump judges” do. I disagree. As someone who reads many judicial opinions, I can attest that the Trump Administration is responsible for an impressive number of outstanding appointments to the federal judiciary. Many of them are judicial conservatives to be sure, more conservative than progressives might like. But they nonetheless believe in the rule of law, and indeed view adherence to the rule of law as a component of their judicial conservatism. It is no surprise that all three Trump appointees to the Supreme Court voted to stay Judge Kacsmaryk’s decision, just as all three Trump appointees ruled against President Trump in December 2020.

Instead, I view this as an extreme edge case. How many federal district judges in the United States would have issued an order like Judge Kacsmaryk’s? Very few. I’d say low single digits, and keep in mind that Trump alone appointed 174 federal district judges. Similarly, only a handful of federal appellate judges in the United States would have signed their names to the Fifth Circuit’s order. In this case, however, the Fifth Circuit’s motions panel included two of them, precipitating the flurry of Supreme Court filings. This litigation was undoubtedly nervewracking for those involved, but I don’t think there was ever much suspense over the outcome.

No more Alliances

What, if any, changes should be made to prevent similar situations from recurring?

I think it is time to eliminate single-judge divisions. As has been widely reported in the press, the Amarillo Division of the Northern District of Texas is a single-judge division, which means that if the plaintiff chooses to file suit in Amarillo, the case automatically goes to Judge Kacsmaryk. The lead plaintiff, the Alliance for Hippocratic Medicine, was incorporated in August 2022 in Amarillo, Texas, apparently for the sole purpose of laying venue for this lawsuit before this specific judge. Judge Kacsmaryk rewarded this strategy by issuing an order purporting to ban mifepristone throughout the United States.

I am concerned that the Alliance for Hippocratic Medicine’s temporary success will embolden other organizations to file similar lawsuits. It is easy to imagine the “Alliance for Fair Elections” being incorporated in Amarillo, Texas, in August 2024, filing a lawsuit alleging imminent harm from widespread election fraud, and seeking some strange injunction intended to shift the election toward the Republican candidate. This theory of standing seems implausible, but no more implausible than the doctors’ theory of standing that Judge Kacsmaryk found persuasive. Or, the same organization might file a lawsuit after the election, seeking an injunction overturning the result. Numerous Supreme Court decisions would prohibit these sorts of lawsuits, but as the proceedings in the Alliance for Hippocratic Medicine case suggest, those decisions may be mere parchment barriers, as it were. I’m sure the Supreme Court would quickly put a stop to any such litigation, but do we really want this drama?

Eliminating single-judge divisions would not be a kludge intended to neutralize Judge Kacsmaryk; it would solve the more general problem of plaintiffs picking their judges, an unattractive prospect in any context. Moreover, this change would be easy to institute. It would not require an Act of Congress. The Northern District of Texas, and other federal district courts elsewhere in the country, could simply amend their local rules to provide that lawsuits filed in the district are randomly assigned to judges within that district. Indeed, my understanding is that some other federal district courts already do this. This would be an easy, barely-noticed change that would improve the administration of justice.

Broader changes are unwarranted. Controversial decisions like Judge Kacsmaryk’s inevitably precipitate calls for impeachment and court-packing, but I favor neither. In 1804, Justice Samuel Chase was impeached by the House based on disagreement with his judicial decisions. But he was acquitted by the Senate the next year, even though the Senate was controlled by Democratic-Republicans that despised him. This set a precedent, that has lasted for 218 years and counting, that judges should not be impeached based on disagreement with their judicial decisions. Impeachment is reserved for judges who have corrupted their office, like Thomas Porteous (my pick for the worst federal judge in American history). As for court-packing, Congress is certainly permitted to add federal judgeships, and there may be legitimate reasons to add judgeships in certain jurisdictions with high caseloads, but I would not add judgeships for purposes of diluting the power of particular judges. Taking the long view, geological time, do we really want to open up these new fronts in the judicial wars?

Episodes like this are inevitable in a judicial system composed of hundreds of judges who each have life tenure and the authority to bind the United States government to their orders. Humanity is imperfect. One cannot always expect judges to be paragons of rectitude. Indeed, given the large number of federal judges and the power that each individual judge has, it’s surprising that orders like this are not issued more often. Orders by federal district judges are rarely in the news, which is a good thing. And when such orders do occur, the judicial system’s solution is swift appellate review. Judge Kacsmaryk’s order never went into effect and was stayed by the U.S. Supreme Court two weeks after its issuance. Overall, I think this case should be viewed as a success, rather than a failure, of the judicial system.

See you all next week! I have some interesting posts coming up.

1. Technically, it is possible that one or two Justices voted to dissent but chose not to publicly disclose their vote, but this seems unlikely to me.