People For the American Way

Courts Gone Wild

News and Analysis
Courts Gone Wild

Some of the cases percolating in the federal courts this month show just how extreme the judiciary has become under the influence of far-right judges. They also remind us of why we are fighting so hard to repair the damage by getting terrific Biden nominees confirmed.

Let’s start with the two abortion cases currently before the Supreme Court. On December 1, the justices will hear oral arguments in Dobbs v. Jackson Women’s Health, where Mississippi is defending its law banning abortions after 15 weeks. Since the Supreme Court has ruled again and again over the past half century that states cannot ban abortion before viability – about 24 weeks – this is an open-and-shut case. Even the far-right Fifth Circuit recognized that. So the fact that the Supreme Court even agreed to consider the state’s appeal is ominous. There is simply no way to uphold this ban without overruling the core holding of Roe v. Wade that every individual has a constitutional right to decide for themselves whether to continue their pregnancy prior to viability. That right is critical to women’s equal participation in society right now.

Then there’s the Texas six-week abortion ban, with enforcement delegated to bounty hunters rather than to the state, a trick designed to keep the case out of the federal courts. The law’s supporters don’t even claim that the ban itself is legal. Their argument is that because the state itself doesn’t enforce it, there is no “proper” defendant to sue in federal court to block enforcement of the law. This dangerous argument would prevent federal courts from acting regardless of the legal right being targeted. In a country with a healthy democracy, this transparent and lawless effort to bypass the Constitution would have been blocked long ago and would have been condemned by both political parties. But that is not the country we live in right now. Over the dissent of the three moderates and even Chief Justice John Roberts, five justices let the law go in effect. They also fast-tracked the oral arguments – not to consider whether the ban itself is constitutional, but just to consider whether a federal court can even hear the case at all. Perhaps predictably, during oral arguments, some far-right justices expressed concern that if they rule for Texas on that issue, then federal courts would be powerless to block a state law violating a right that those justices care about: the Second Amendment. While the justices haven’t indicated when they might issue a ruling, the fact that they fast-tracked oral arguments suggests they could act any time.

Another case in the news involves a Biden administration initiative to protect working people from COVID-19. This arises from a bizarre decision by the Fifth Circuit that would have been unimaginable before Trump filled 30 percent of the nation’s circuit court judgeships. In BST Holdings v. OSHA, the court barred enforcement of the Biden administration’s rule requiring large corporations to ensure that their employees are vaccinated against COVID-19. The far-right panel hearing the case was composed of two Trump judges (Kurt Engelhardt and Kyle Duncan) and a Reagan judge (Edith Jones). They ruled that OSHA (the Occupational Safety and Health Administration) didn’t have authority from Congress to issue the rule, even though the relevant statute clearly directs OSHA to act when the workplace poses a grave danger to the health of the people working there. The judges did not consider the avoidance of illness and death when weighing the public interest in maintaining the rule. And they even ruled that Congress itself could not adopt such a requirement because it would exceed its authority under the Commerce Clause. This retrograde vision of a Congress powerless to address serious national problems was rejected by the Supreme Court during the New Deal, but arch-conservative justices and judges are trying to resurrect it.

The case is now actually in the Sixth Circuit pursuant to a law set up by Congress, calling for the consolidation of all the lawsuits against the OSHA rule in the various circuits, with a lottery to determine which circuit gets the case. Just a few days later, the lottery determined that the Sixth Circuit would get the case. The Sixth Circuit, like the Fifth, is very conservative, even more so than four years ago since Trump named six of its 16 active judges. If far-right judges keep illegitimately blocking lawful Biden administration efforts to protect people from COVID-19, more and more innocent people will get sick and die.

Abortion care and COVID-19 are just two areas in which we can see what happens when the judicial system doesn’t protect us the way it’s supposed to. This is the result of decades of work by the Far Right. And it’s why People For has been so vigorous in fighting for Biden nominees with a demonstrated commitment to civil rights who won’t look for ways to bend the law in favor of wealthy and powerful interests. The work of repairing the courts has just begun.


Abortion, covid-19, Dobbs v. Jackson Women's Health, Fifth Circuit Court of Appeals, Lower Federal Courts, SB8, Supreme Court, Whole Woman's Health v. Jackson