Welcome back, Deadline: Legal Newsletter readers. So much for easing into a sleepy season of waiting around for the rest of the term’s opinions to drop. Coming off last week’s final hearings, the Supreme Court was rather busy this week, with emergency litigation on mifepristone, sniping over fallout from the huge voting rights ruling and Chief Justice John Roberts sharing his latest naivete.
Mifepristone’s nationwide availability is at stake in an urgent appeal from Louisiana. A three-judge panel issued an order late last week that would halt the widely used abortion pill from being mailed not only to Louisiana, but also the entire country. Justice Samuel Alito, who’s assigned to field emergency motions from that region, agreed on Monday to temporarily pause the lower court order while he and his colleagues consider the matter further.
For now, the practical effect is that the drug remains available without needing to visit a doctor in person.
“It bears emphasis how unprecedented the Fifth Circuit’s order is,” mifepristone maker Danco Laboratories told the justices. “Never before has a federal court purported to immediately enjoin a several years’ old drug approval,” the company said of the order that came from a panel of all GOP appointees. Likewise, GenBioPro, which makes a generic version of the drug, said it’s “yet another unprecedented Fifth Circuit order suspending existing, years-old FDA-approved conditions of use for mifepristone.”
Louisiana defended the order, telling the high court that the Biden administration’s move to ditch the in-person dispensing requirement was part of a plot to circumvent the 2022 Dobbs ruling that overturned Roe v. Wade. “This assault on pro-life states has worked as intended,” Louisiana’s lawyers wrote, adding: “While in-person abortions have virtually vanished from Louisiana after Dobbs, illegal mifepristone-induced abortions — facilitated by out-of-state doctors mailing FDA-approved mifepristone into Louisiana — have skyrocketed.”
Alito’s administrative stay expires Monday at 5 p.m. ET, so unless that deadline gets pushed back, we expect to hear from the full court by then on whether the circuit’s unprecedented order — and the chaos it carries — will take effect while this litigation continues.
In other Louisiana litigation news, last week’s Callais ruling that further gutted the Voting Rights Act had a brief, but eventful, afterlife this week. Justice Ketanji Brown Jackson was the lone dissenter from an order that agreed to fast-track the ruling’s taking effect, as opposed to letting Black voters who lost the case petition the justices for a rehearing. The Biden appointee said the majority’s decision to “buck our usual practice” was “tantamount to an approval of Louisiana’s rush to pause the ongoing election in order to pass a new map.” She said the majority “unshackles itself” from constraints and “dives into the fray,” adding that the court’s “abandon is unwarranted and unwise.”
That dissent demanded a response, Alito said. Joined by Justices Clarence Thomas and Neil Gorsuch, he wrote in a concurring opinion that Jackson “levels charges that cannot go unanswered” and used “rhetoric that lacks restraint.” The court subsequently issued a final order rejecting Black voters’ bid to seek a rehearing — this time without any justices airing disagreements in the process.
Louisiana is just one of the red states around the country trying to make its congressional map redder ahead of the midterms. Republicans gained an advantage in that fight on Friday, when Virginia’s top court voided the state’s Democratic-friendly map that voters had just approved in an election. Virginia officials have signaled they intend to appeal to the U.S. Supreme Court.
Meanwhile, Chief Justice Roberts maintained that he and his colleagues aren’t “political actors.” He reportedly made those remarks at a judicial conference, arguing that the justices aren’t “part of the political process” and that he’s “not sure people grasp that as much as is appropriate.”
People could be forgiven for disagreeing or not caring whether the court is technically “part of the political process.” People might care more about what the court is doing rather than how its actions are formally characterized — whether it’s gutting abortion rights or voting rights or anything else. What Roberts can’t deny is that the political process that put him and his five GOP-appointed colleagues on the bench was part of a decades-long campaign to achieve the very results they’re now achieving.
If all that wasn’t enough, Roberts and his colleagues are about to receive another petition from Donald Trump in the E. Jean Carroll litigation. He already has a pending petition that the justices haven’t decided yet whether to take up, regarding the president’s challenge to the $5 million in damages awarded by a jury for sexually abusing and defaming the writer. This week, his personal counsel (whom he has nominated for a judgeship) signaled that he’ll have another petition coming in the other Carroll appeal, the separate but related case in which she won $83 million in defamation damages. The Justice Department said it’s going to file its own petition backing the president, too.
We don’t know yet whether the justices want to review the $5 million case, the $83 million case or both. But even if they do, they wouldn’t likely be putting the Carroll appeal on their calendar for argument until the next term, which starts in October. In the meantime, she can’t collect until the high court declines to weigh in. Of course, if it agrees to review Trump’s appeal, then whether she can ever collect will be in doubt until the justices rule.
Adding to the litigation heading into the weekend, Alabama officials filed an emergency Supreme Court appeal on Friday, asking the justices to save them from using a congressional map that they said “segregated more than a million Alabamians into different districts because of their race” and is “irreconcilable with” Callais.
The next rulings in cases argued this term are expected Thursday, though the court doesn’t announce how many or which ones are coming ahead of time. A bunch of big ones are still left, including, among others, on the president’s firing power, mail-in ballot deadlines and birthright citizenship. Between that, redistricting litigation in Virginia, Alabama and elsewhere, plus Monday’s looming deadline in the mifepristone case, it could be another busy week ahead.
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