Op-Ed: Judges, Guns and Mifeprestone

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Andru and Amy Volinsky are pictured with their animals in East Concord.

My apologies to Warren Zevon.

A Book, an Idea and a Goat.

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:  https://substack.com/@andruvolinsky?utm_source=profile-page


On Father’s Day, our daughter, Mollie, asked me about the recent US Supreme Court decisions.  To be fair, I started it by making fun of the ex-President’s small hands—which was the subject of one of the cases, Vidal v. Elster.  At this time of year, the US Supreme Court is nearing the end of its term and releases bunches of decisions as if cleaning out its collective desk before going on summer break and preparing things for next year’s crop of justices.  If only we had a Supreme Court with justices that rotated in and out of service….  At any rate, Mollie asked about the “gun case.”  I also discuss the mifepristone case below.

The case of Garland v. Cargill should not be viewed as merely a gun case that permits the sale of “bump stocks,” devices that convert semi-automatic rifles to automatic by using the rifle’s recoil to discharge bullet after bullet without movement of the shooter’s finger on the trigger.  (The finger remains stationary, the rifle moves from the force of the recoil. Press the trigger once and it sets off a repetitive chain reaction.) The case is another in a line of cases that substitute’s the Court’s policy judgments for the authority of executive branch agencies to fill in the details of laws passed by Congress.  Think: EPA and clean air or clean water standards or, in this case, the Bureau of Alcohol, Tobacco and Firearms (ATF) and guns. 

Bump stocks were used by a mass murderer in 2017 to kill 50 concert goers and wound more than 500 in Las Vegas.  The special stock was invented in about 2000, after the 1994 assault rifle ban was lifted.  They sell for as little as $100.

Congress outlawed the private possession and sale of machine guns in 1934 after headlines of gangsters, like Al Capone, robbing banks and killing law enforcement officers with machine guns. The firearm that was prohibited was defined as one that could shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U. S. C. §5845(b).  For almost two decades, the ATF did not consider rifles with bump stocks to be illegal machine guns.  This changed with bipartisan pressure to do something after the 2017 Las Vegas shooting.  The ATF adopted a new rule in 2019 that outlawed the private possession of bump stocks. 

One wonders why the ATF did not ban bump stocks between 2000 and 2019.  Was it because they weren’t “machine guns” or was it the result of pressure by the gun lobby to do nothing?  The Court’s opinions don’t elaborate. 

After the new rule was adopted, Mr. Cargill acquired two bump stocks in order to turn them in and create standing for his suit.  (Standing is the legal right to sue.  More below.). Cargill lost his case before a federal judge in San Antonio.  Lost again before a three-judge panel of the US Court of Appeals for the Fifth Circuit in New Orleans and then finally won in a rehearing before the entire Fifth Circuit sitting as a whole, called “en banc.” Attorney General Merrick Garland then appealed the en banc decision to the US Supreme Court where he lost in an opinion written by Thomas and joined by the five other conservative justices. 

Thomas’ decision for the majority is replete with sketches and diagrams and technical descriptions about the pulling of triggers.  Of course, most of this is factual and facts are supposed to be determined by trial judges and, in this case, the trial judge ruled in favor of the ban.  Alito wrote a short, nose-thumbing concurring opinion to say that Congress could fix this if it wants.  There is not a diagram of Alito sticking out his tongue, although maybe there should be. 

Justice Sotomayer’s dissent is a breath of fresh air.  She wrote: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ Because I, like Congress, call that a machine gun, I respectfully dissent.”   Justice Sotomayer then provides 18 pages of her own technical and historical analysis. 

What are the chances of Congress acting?  Probably not much, as Alito well knows. For now, states can ban bump stocks through state laws. 

The importance of the case is that the US Supreme Court again limits the authority of federal administrative agencies with deep expertise.  Two years ago, the Court similarly limited the authority of the EPA to regulate greenhouse gasses in a challenge brought by the country’s coal producers. The case of West Virginia v. the EPA was a 6-3 decision (Sotomayor, Breyer and Kagan, dissenting) in which the Court concluded there are some administrative decisions that are so important that only Congress could direct the relevant decision making through the passage of laws.  This is called, wait for it, “the major questions doctrine.”  The bump stock case

majority chose to disregard the agency’s expertise and require Congress to act. Congress, of course, is unable to act because of its anti-majoritarian procedural rules and the out-sized influence of money in politics.  The Court’s conservative majority is creating a Congressional log jam and it knows it.

Just as important, the Court now sets itself up as the only body with expertise that counts.  Of course, the justices don’t have expertise on every subject that comes before them.  They depend on the expertise offered by the litigants and the organizations that file amicus briefs.  How to choose which party or which amicus to believe?  With this Court, that is clearly a political decision and one likely out of step with the majority of Americans.

Mifepristone Case

In the Food and Drug Administration (FDA) v. The Alliance for Hippocratic Medicine, the US Supreme Court invalidated a ban on mifepristone which is used to induce the termination of pregnancies up to seven weeks.  All of the justices agreed that the Alliance had no business being in court.  In other words, the Alliance lacked legal standing which is the showing of a recognizable legal harm sufficient to meet the Constitution’s case and controversy standard.  If a matter is not in controversy because some party is harmed, a decision would be merely advisory and offering advisory opinions is not the job of federal courts.  Some state courts, including NH’s Supreme Court, are permitted by their state constitutions to issue advisory opinions about proposed legislation when requested by the legislature or governor and executive council.  Deciding moral, policy and ideological disputes are generally not the job of a court.  They are legislative or executive branch matters.  It’s a separation of powers concern. While working together, each branch of government should stay in its own lane. The legislative and executive branches make policy. The judicial branch interprets the Constitution and other laws and regulations.

That the Alliance lacked legal standing to bring suit is unremarkable.

The doctors in the Alliance don’t prescribe mifepristone because it offends their religious principles.  They nonetheless argued they were harmed by the FDA’s approval and regulation of mifepristone because of “downstream conscience” and “downstream economic” concerns.  The first concern is a matter of the drug being on the market and these doctors having to turn down patients who need the medication.  The second concern is that the religious, anti-abortion docs may have to use resources to treat patients who have received mifepristone elsewhere. 

A federal judge in north Texas accepted the Alliance’s contrived arguments for standing and the Fifth Circuit approved that finding.  The federal judge, Matthew J. Kacsmaryk, was appointed by the ex-president to the federal bench in 2019.  Immediately before that, he was deputy general counsel to the First Liberty Institute, a nonprofit Christian conservative law firmbased in Plano, Texas.  First Liberty is known for litigating a number of high-profile cases including the kneeling football coach case, the anti-gay cake bakers’ case, the challenge to Maine’s prohibition against religious school vouchers, and the Navy Seals’ “we’re religiously opposed to vaccines” case.  The First Liberty Institute has revenues and expenses over the past few years approaching $25 million a year. 

Why file a religiously based lawsuit in Texas that impacts the entire nation?  Because Judge Kacsmaryk is there, and the local court rules provide that cases filed in Amarillo will always be assigned to him and not any of the other 15 federal judges in the district.  The 5th Circuit provides little oversight or encourages Kacsmaryk’s Christian right views.

The process of choosing a friendly judge is known as “forum shopping.”  In 2023, 17 US Senators led by Patty Murray (D-WA) and Chuck Schumer (D-NY) wrote to the Chair of the US Judicial Conference’s Advisory Committee on Civil Rights urging her to adopt policies to respond to the practice of forum shopping.  The Conference adopted a rule recommending the random assignment of cases to all judges within a district.  A group of radical Republican senators led by Mitch McConnell have written to the nation’s chief judges asking them to ignore the new rule requiring random assignments of cases.  The rule is described by Judge Robert J. Conrad Jr., head of the federal courts’ Administrative Office, as “promoting the impartiality of proceedings and bolsters public confidence in the federal judiciary.”    Who other than Mitch McConnell could be against impartiality? 

The 9-0 ruling on standing should not be cause for celebration.  It may have resulted from all of the adverse publicity recently garnered by Justices Alito and Thomas for their partisan and religious ethical breaches.  We should remember that Judge Kacsmaryk issued an immediate injunction against the use of mifepristone with his ruling and the 5th Circuit agreed with him.  When the injunction got to the US Supreme Court, Thomas and Alito voted to keep it in place while the case was litigated to its obvious no-standing conclusion.  Fortunately, the other justices overturned the immediate preliminary injunction and allowed the drug to be sold and regulated by the FDA while the case was pending. 

More decisions to come this week and next.  If Mollie asks, I’ll likely write about them, too.

Finally, a shout-out to my friend, Ralph Jimenez, for his good Concord Monitor editorial about local property taxes, lawsuits, elected officials, and weasels.  It’s here. 

Thanks for reading. Please share.

Editor’s note: The opinions expressed belong solely to the writer. InDepthNH.org welcomes diverse opinions at nancywestnews@gmail.com

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