Opinion: Even more radical than Supreme Court conservatives: The 5th Circuit

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Opinion | Even more radical than Supreme Court conservatives: The 5th Circuit
The MAGA-friendly Supreme Court is hardly the only problem with the post-Trump federal judiciary.

By Jennifer Rubin
Columnist
June 30, 2024 at 7:45 a.m. EDT

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Andrew Oldham, judge for the U.S. Court of Appeals for the 5th Circuit and former general counsel to Texas Gov. Greg Abbott, with other panelists at the Federalist Society’s 2022 National Lawyers Convention in Washington. (Shuran Huang for The Washington Post)



The current Supreme Court may be the most partisan in the modern era, but to that, the U.S. Court of Appeals for the 5th Circuit says, in effect: Hold my beer. It is no coincidence that two of the most outrageous lower court decisions of recent times, cases that should have never reached the Supreme Court, emanated from the 5th Circuit.

In one of those cases, the 5th Circuit upheld the widely denounced nationwide injunction on the abortion drug mifepristone issued last year by District Judge Matthew Kacsmaryk — a Donald Trump appointee hostile to abortion rights. That was too much even for the most right-wing Supreme Court in our lifetime, which unanimously slapped down the 5th Circuit on June 13 for allowing the case to proceed at all. There was no “case or controversy,” the court ruled, because there was absolutely no showing of any injury to the doctors’ groups that brought suit.

Justice Brett M. Kavanaugh, also a Trump appointee, wrote for the court in finding that the case was not a case at all, at least not a legal one:

Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. … And FDA has not required the plaintiffs to do anything or to refrain from doing anything.

The plaintiffs do not allege the kinds of injuries described above that unregulated parties sometimes can assert to demonstrate causation. Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA’s actions relaxing regulation of mifepristone. Nor do they suffer injuries to their property, or to the value of their property, from FDA’s actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.

A first-year law student could have figured out there was no standing. But the 5th Circuit’s decision to allow any screwball lawsuit in pursuit of MAGA political ends knows no bounds.

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The second preposterous recent case out of the 5th Circuit, decided on Wednesday by the Supreme Court, was Murthy v. Missouri, colloquially called the “jawboning case,” primarily involving the Biden administration’s concern about coronavirus disinformation. {snip} Legal scholar and 5th Circuit specialist Steve Vladeck summarized the pair of cases:

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Opinion by Jennifer Rubin
Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room." Twitter https://twitter.com/JRubinBlogger