Samuel Alito used his objection to the anti-abortion pill ruling to call three judges in an act of judicial “theatre,” says SCOTUS expert
The Supreme Court ruled Friday to uphold FDA approval of the abortion pill.
Justices Clarence Thomas and Samuel Alito publicly disagreed, and Alito wrote an opinion.
A SCOTUS expert said it appeared Alito was accusing three female judges of hypocrisy.
A ruling by the Supreme Court on Friday ensured this Mifepristone abortion pill can still be bought and used in the US, freezing a lower court ruling that would have effectively banned access to the pill.
Two judges, Clarence Thomas and Samuel Alito, publicly disagreed, with the latter writing one Opinion in which he called three female justices by name — including Conservative Justice Amy Coney Barrett — in an apparent act of judicial “theater,” Scott Lemieux, a professor of political science at the University of Washington and an expert on the Supreme Court and constitutional law, Insider said .
The case came before the court after a Texas judge ordered suspension the more than 20-year-old approval from the Food and Drug Administration mifepristone. The Biden administration asked the Supreme Court to grant an emergency motion that would protect FDA approval while the case is pending processed.
As the request was urgent, the case was examined under the so-called ‘shadow file’ of the court, where procedural issues are decided. Cases considered on the shadow list do not receive the same level of scrutiny as other cases, meaning that “the decisions are accompanied by little to no explanation and there is often no clarity as to which judges are in the majority or minority “, so the Brennan Center for Justice.
While the court said they would grant the Biden administration’s motion, the majority offered no explanation as to why. The ruling did not specify how most judges voted or how many judges voted in favour. Both Thomas and Alito chose to take note of their differences, with only one of them explaining why.
As part of his argument, Alito focused on the “shadow list” itself. He wrote that the court had previously been criticized for making decisions on the shadow list and specifically challenged three female judges – Elena Kagan, Sonia Sotomayor and Barrett – and cited judgments , in which they previously objected to the use of the shadow list.
Alito who has defended the court against claims over the shadow list in the past, adding: “I disagreed with that criticism at the time, but if it was warranted in the cases in which it was made, it is expressly applicable here.”
“There’s something personal about the tone of Alito’s opinion,” Lemieux said, adding it’s notable that Thomas doesn’t agree with him.
Alito did not respond to Insider’s request for comment about the Supreme Court press email.
Lemieux said Alito has been stung by allegations of abuse of the shadow list in the past, particularly in relation to decisions he referred to abortion access And Cases of religious freedom during the pandemic.
“I think he’s trying to make a bit of a fuss with ‘Wait a minute! I thought you were against using the shadow list and changing things that way,'” Lemieux said.
But Alito’s comparison – and accusations of hypocrisy – may not be justified. Lemieux said Alito and the Conservative majority have been criticized for using the shadow list to disrupt the status quo and making drastic legal changes without transparency.
Friday’s verdict does the opposite.
“The use of the shadow slip here doesn’t disrupt the status quo, it preserves the status quo,” Lemieux explained of the abortion pill ruling, which simply allows the most common abortion drugs to remain on the market. “That’s the kind of case the ‘shadow list’ is for: maintaining the status quo so a case – which frankly doesn’t seem very meritorious to me – can be solved.”
Though Alito appears to be calling out to Kagan, Sotomayor, and Barrett, there’s no way of knowing for sure how either judge voted, aside from the two who noted their disagreement.
Lemieux added that it’s not uncommon for judges to exchange opinions, but said Alito’s dissent “clearly reflects the fact” that he feels unfairly characterized.
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