A Supreme Mess

In more ways than one

Photo: Drew Angerer

The Supreme Court is supposed to be a bastion of consistency in American governance, but these days it's about as stable as a skittish colt on a slippery slope.

And nowhere is that volatility more apparent than in the fallout from the overturning of Roe v. Wade. This decision represented an abandonment of a half-century of precedence and the will of the majority of Americans. It has created hardship for women across the country, especially those who are poor or from marginalized groups. 

At the time of the ruling, some conservatives argued that it would lead to less contentiousness around the issue by giving more control to individual states through federalism; in reality, it has had the exact opposite effect. 

The court helped further exacerbate America’s partisan divide, roiling politics at the state and national levels. And in truth, anti-abortion forces always saw the entire notion of a federal patchwork of different laws as a temporary way station. They want a complete national ban and are determined to find means to get there. 

The latest example came courtesy of a federal judge in Texas who issued a nationwide ban of the long-legal and safe abortion pill mifepristone. He infused his decision with the incendiary rhetoric of the anti-abortion movement, lest anyone had any confusion on whether he was guided by the law or his own personal beliefs. 

On Wednesday night, a federal appeals court upheld much of the ban, with some modifications. And on Thursday, the Department of Justice announced it will take the matter back to the Supreme Court. 

Meanwhile, a federal judge in Washington state announced that even after the appellate court’s ruling, his earlier ruling that the abortion pills should remain legal still stands. 

This is what a brewing constitutional crisis looks like. The pill cannot be both illegal and legal at the same time. The Supreme Court will have no choice but to step in to try to help clean up the chaos they unleashed. Good luck. 

The basis of this new ban on the abortion pill centers on unhinged theories about how the FDA can approve drugs for use. If left to stand, it would likely throw the entire process for regulating medicines into turmoil. That’s why executives from more than 300 biotech and pharmaceutical companies decried the ruling. 

Did the Supreme Court consider these possibilities? 

Meanwhile, some Republican politicians seem to be recognizing they have painted themselves into quite the corner on abortion. The true believers in the party push for more extreme positions. But much of the electorate, especially in swing states, thinks differently. The big victory by a progressive running for the Wisconsin Supreme Court, largely on the issue of abortion rights, has GOP leaders spooked. But they have no control over the base. 

It will be interesting to see how strict abortion restrictions passed in Florida will affect Governor Ron DeSantis' expected bid for the presidency. He signed the law, which might help in the primary, but one wonders about the general election. 

But while we are talking about the mess at the Supreme Court, we would be remiss if we didn’t mention the developing scandal with Justice Clarence Thomas. Last week, we posted on ProPublica's excellent investigative reporting into Thomas’ cozy relationship with Republican megadonor Harlan Crow. This included the billionaire's providing the justice trips on yachts and stays at resort properties worth hundreds of thousands of dollars. Thomas didn’t report any of these as gifts. (We also later learned that Crow collects Nazi memorabilia.)

Well now we find out, thanks again to ProPublica, that Thomas also failed to report a real estate deal with Crow in which the billionaire bought the home of Thomas’ mother at what might be above market rate. He also bought several other properties on the street. 

Thomas’ defenders are not arguing the facts. They just say this is another attack by his political opponents. That doesn’t cut it. The facts speak for themselves, and at a minimum they require answers far more detailed than we have gotten thus far. 

The plan of Republican senate leader Mitch McConnell was always that if Republicans couldn’t enact their objectives through the legislative process, they would use a stacked judiciary. It was supposed to be seamless and subtle. 

It’s been ruthlessly effective, but it creates a mess. Is anyone surprised?

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