Is The American Taliban Capable Of Learning?

 There has been a lot of pre-emptive angst over the hearing - in Texas, naturally - about whether to overturn the use of mifepristone, a medication that induces abortion early in pregnancy. The judge in question, Matthew Kacsmaryk is about as true blue a culture warrior as you can find. A lot has been made about how the plaintiff shopped around to get this case before Kacsmaryk, because he might be the only judge in the country stupid enough to rule in their favor.

I say stupid, because the backlash to Dobbs was a major driver in Democrats overachieving in 2022, and if the Talibangelicals foist this decision on the country...holy shit.

The "merits" of the case involve the plaintiffs' claims that the FDA did not conduct adequate scientific review or research protocols...for a drug that has been safely used for two decades. There are open questions about whether the plaintiffs have standing to even bring the suit. The written law is pretty clear about the FDA's ability to approve drugs and the 6 year window - long since shut - to appeal that decision. 

If Kacsmaryk decides to rule in the plaintiff's favor, it will unleash a shitstorm...or maybe not. A ruling in the plaintiff's favor will immediately be stayed by a Circuit court somewhere else. At least...I think so. Deciding that the FDA does not have the statutory rights to do the thing that was explicitly written into law is so fucking bonkers that I can't imagine it surviving a Circuit Court challenge, though if any Circuit would, it would be the Fifth, which is the Circuit Kacsmaryk is in. However, this ruling would presumably be nationwide, which could allow the 11th Circuit - or perhaps all but the 5th - to issue a stay and expedite a hearing.

The obvious question to all this is that unless he throws out the plaintiffs for lack of standing or rules in the FDA's favor - and remember, this guy is a wingnut's wingnut - it will eventually reach the Supreme Court. 

At that moment, we will see if the Assembly of Religious Experts has learned anything from Dobbs. Sure, Alito and Thomas will rule that the FDA was never authorized by George Washington, so it doesn't technically exist, but I can't see Roberts siding with this unprecedented act of judicial activism. If Kavanaugh or Gorsuch joins him...crisis averted.

If, however, the Assembly of Religious Experts rules that the FDA has no power to rule a drug that has been used safely for 20 safe, it provides an interesting opportunity and peril for the Biden Administration. Frankly, they should simply say that they are not going to enforce an unconstitutional ruling. Let the Howler Monkeys howl. Neuter the Court. Andrew Jackson did, though that's not an argument in favor.

The Supreme Court's powers exist because the other branches allow them to exist. As Jackson said, "Mr. Marshall has made his decision, now let us see him enforce it."

Would Biden do it? Two years ago, I would've said, no, but I think this might be the straw that breaks the camel's back. 

Can the black robed religious zealots cloistered in the judicial sinecures see the political devastation that such a decision would bring?