This report looks at the four prior Supreme Court Order cases that Samuel Alito cites to justify his dissent in the Supreme Court abortion pill ruling.
The Supreme Court stopped enforcement of lower court orders that would have made abortion pill mifepristone unavailable. Under the stay order of the Court, mifepristone will remain legal and available temporarily while litigation continues. The ruling came down 7-2, with Clarence Thomas dissenting and Samuel Alito writing a very personal dissent of his own.
BACKGROUND
District Court Judge and Donald Trump appointee Matthew Kacsmaryk ruled that Federal Drug Administration (FDA) approval of mifepristone was invalid. The drug approved 23 years ago must be immediately and entirely removed from the market. On appeal, the Fifth Circuit Court permitted mifepristone to stay on the market, but only as originally available back in 2000, thereby limiting use of the drug:
- The drug would be available only for seven weeks, not ten,
- More doctor visits would be required before use, and
- There could be no dispensing mifepristone through the mail.
The emergency appeal to the Supreme Court reversed these restrictions.
SAMUEL ALITO DISSENT
Justice Samuel Alito, also known as the fourth “Trump judge,” wrote up the abortion pill dissent. Alito complains that the Supreme Court should not have stayed other lower court rulings so it should not stay this one either. Alito himself voted to stay earlier rulings. Alito reasoned literally like this: ‘You disagreed with my stays in the past so I’m disagreeing with your stay now.’
Samuel Alito mentions four prior cases involving stay issues:
In recent cases, this Court has been lambasted for staying a District Court order “based on the scanty review this Court gives matters on its shadow docket,” Merrill v. Milligan, (KAGAN, J., dissenting). In another, we were criticized for ruling on a stay application while “barely bother[ing] to explain [our] conclusion,” a disposition that was labeled as “emblematic of too much of this Court’s shadow-docket decision making–which every day becomes more unreasoned.” Whole Woman’s Health v. Jackson, (KAGAN, J., dissenting from denial of application for injunctive relief). And in a third case in which a stay was granted, we were condemned for not exhibiting the “restraint” that was supposedly exercised in the past and for not “resisting” the Government’s effort to “shortcut” normal process. Barr v. East Bay Sanctuary Covenant, (SOTOMAYOR, J., dissenting). Cf. Does 1–3 v. Mills, (BARRETT , J., concurring in denial of application for injunctive relief) (warning that the Court should not act “on a short fuse without benefit of full briefing and oral argument” in a case that is “first to address the questions presented”).
I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here. (Some citations omitted.)
Let’s take a look at these four cases for any tell tale patterns:
1. Merrill v. Milligan involved election redistricting. The lower court ruled that new Alabama election maps were an illegal racial gerrymander under the 1965 Voting Rights Act (VRA) and ordered new maps. The Supreme Court intervened and stayed the action, 5-4, allowing Alabama to use the illegal maps in the 2022 election while litigation continues beyond that election. Samuel Alito agreed to overrule the lower court. Elena Kagan dissented:
There may–or may not–be a basis for revising our VRA precedent in light of the modern districting technology that Alabama’s application highlights. But such a change can properly happen only after full briefing and argument—not based on the scanty review this Court gives matters on its shadow docket.
The question this stay application presents is what to do in the interim. Should we freeze the District Court’s decision and thereby enable Alabama to proceed with the violation of voting rights found by that court? Or should we leave the District Court’s decision in place, thus allowing a remedy to the adjudicated violation of rights to go into effect?By granting the stay in this case, Samuel Alito and four other Justices upset the lower court ruling and the status quo of the old 1965 Voting Rights Act, and reduced the right of Black people to have fair representation in election districts.
2. Whole Woman’s Health v. Jackson affected abortion rights. The lower court ruled that a new law permitting private parties to act as vigilantes and sue women who obtain abortions or sue those who assist women could go into effect immediately even though the law restricted abortion rights to just six weeks. The Supreme Court intervened but decided 5-4 with Samuel Alito to leave the restrictive ruling in place. Elena Kagan dissented:
Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf. As of last night, and because of this Court’s ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.
By maintaining the lower court ruling in this case, Samuel Alito and four other Justices upset the status quo of the old 1973 Roe v. Wade case and many subsequent cases upholding the right to abortion, and reduced rights of women to obtain abortion to a mere six weeks in all cases before there could be full review of the new law. (Note that this ruling came down before the infamous Dobbs case took away abortion rights altogether.)
3. Barr v. East Bay Sanctuary Covenant concerned immigration rights. Lower courts determined that new immigration restrictions by the Donald Trump administration requiring people to apply from outside the United States were improperly made and should not go into effect. The Supreme Court intervened and decided 7-2 that new asylum restrictions may take effect while litigation continued. Sonia Sotomayor dissented:
Although this Nation has long kept its doors open to refugees–and although the stakes for asylum seekers could not be higher–the Government implemented its rule without first providing the public notice and inviting the public input generally required by law. After several organizations representing immigrants sued to stop the rule from going into effect, a federal district court found that the organizations were likely to prevail and preliminarily enjoined the rule nationwide.
Once again, by reversing the stay in this case, Samuel Alito and six other Justices upset the lower court ruling and the status quo of asylum law, this time permitting the strict rule to go into effect as litigation continued.
4. Does 1–3 v. Mills concerned health care workers and mandatory vaccines. The lower court permitted Maine to add a COVID19 vaccine requirement without religious exemptions to its list of mandatory vaccines long required for health workers. The Supreme Court upheld the lower court ruling, 6-3. Amy Coney Barrett concurred, pointing out that the Court should issue an emergency stay only where the applicant were likely to win the case:
Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take–and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.
Unlike the other three cases Samuel Alito mentioned, here the Supreme Court did not overturn the lower court, but Alito dissented. Alito would have upset the earlier ruling.
SUMMARY OF THE CASES
In the four cases cited and the present abortion pill case, Samuel Alito demonstrates that he is consistently against the freedom of people:
- Alito was okay with restricting the freedom of Black people to attain fair representation in government.
- Alito was okay with restricting freedom of women for abortion by threat of vigilantism.
- Alito was okay with restricting asylum claims.
- Then suddenly Alito appeared to change: Alito opposed restricting the freedom of health care workers to refuse a vaccine even though the practice of mandatory vaccines for such workers has been in place for decades. It follows that Alito is okay with taking away the freedom of patients and other health workers to reduce their risk of acquiring a dangerous illness.
- Finally, Alito is not only okay with ending the abortion pill–Alito is angry that he can’t get his way.
The only consistent thing about Samuel Alito is his disdain for the rights of people. That’s what his tantrum about the abortion pill case reminds us.