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On Thursday, Sen. Ron Wyden (D-OR) proposed a radical solution to the possibility that a medication used in more than half of all abortions soon becomes banned. Should Matthew Kacsmaryk, a Trump-appointed judge who is widely expected to hand down a court order banning the drug, end up doing so, Wyden says that the Biden administration should simply ignore that decision.
Wyden offered this proposal at the end of a speech on the Senate floor, where he also laid out several reasons why the lawsuit attacking this abortion drug, mifepristone, lacks merit. “The answer” to a decision banning mifepristone, Wyden declared, “is to ignore it, at least until there is a final ruling on the underlying matter by the Supreme Court.”
In the coming days a lawless Trump-appointed judge is expected to ban access to abortion medication nationwide. I'm calling on the FDA to protect the safety of every woman in America by keeping the drug on the market no matter the ruling. https://t.co/yWAbAOUTFr
— Ron Wyden (@RonWyden) February 16, 2023
It’s a radical proposal, but not entirely without precedent. That Wyden is calling for it at all, however, is significant and suggests that at least a few Democrats may be open to extraordinary actions that could rein in rogue judges.
There are very rare examples of a presidential administration refusing to obey a federal court order (or, at least, preparing to) and Wyden discussed the most famous example in his speech. In the wake of the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1857), President Abraham Lincoln denied that “the policy of the Government upon vital questions affecting the whole people” should be “irrevocably fixed by decisions of the Supreme Court.” And then he openly defied the decision.
The Lincoln administration issued a passport to a Black man, despite Dred Scott’s holding that Black people cannot be citizens. And he signed legislation banning slavery in the territories, despite Dred Scott’s holding that an enslaved person remains enslaved even if they enter a free territory.
Realistically, the Biden administration is unlikely to follow Wyden’s advice. Though the argument that the executive branch might refuse to follow a rogue judge’s decision has a long pedigree — Alexander Hamilton wrote in the Federalist Papers that the judicial branch “will always be the least dangerous to the political rights of the Constitution,” in part because it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” — there’s a reason why Wyden had to reach back to the Lincoln administration to find a high-profile example of a president using this power.
Presidents have generally been reluctant to question the independence of the judiciary, which is normally an essential feature of a liberal democracy. And President Joe Biden, in particular, has largely brushed aside calls to reform the judiciary.
But the fact that Wyden, a senior Democrat with a reputation as a policy wonk and not as a bomb thrower, is calling for such an extraordinary response to a potential judicial decision is significant. It suggests that Democrats at the highest level are wrestling with what to do with the problem of rogue judges who act as rubber stamps for a partisan agenda, regardless of what the law actually says. And that they are open to solutions that ordinarily would not be on the table.
How we got to the point where a Democratic policy wonk is calling on the president to defy a court order
Matthew Kacsmaryk is a Trump appointee to a federal trial court in Texas. Before joining the bench, he worked as a lawyer for Christian Right causes, and his public writings reveal a fixation with sexual politics. During his brief time on the bench, he has attacked the right to birth control and tried to neutralize the federal ban on LGBTQ discrimination by health providers.
Now, he’s currently hearing a lawsuit, known as Alliance for Hippocratic Medicine v. FDA, which claims that the FDA must withdraw its approval of mifepristone — a drug the agency initially approved in 2000 and thus has been lawfully available in the United States for nearly a quarter century.
The plaintiffs’ legal arguments in this Alliance case are ridiculous. One of their primary arguments, for example, is that the FDA didn’t follow its own regulations when it approved mifepristone in 2000. But even if that were true, Congress enacted a law in 2007 that deemed any “drug that was approved before the effective date of this Act” to be in compliance with the relevant federal legal requirements.
And, in any event, there are countless procedural reasons why this lawsuit should fail. Among other things, the statute of limitations to challenge the FDA’s approval of a new drug is six years. Again, the FDA approved mifepristone in 2000.
But Kacsmaryk’s brief record as a judge includes several instances where he defied clear legal authorities to rule in favor of right-wing causes, and even did so in cases where he had no plausible argument that he had jurisdiction to hear the case at all.
There’s one other issue with Kacsmaryk. An obscure judicial order dealing with case assignments says that all federal lawsuits filed in Amarillo, Texas, will automatically be assigned to Kacsmaryk. The reason why Kacsmaryk hears so many cases brought by far-right litigants is that these litigants actively seek him out.
The Supreme Court, meanwhile, has largely encouraged this kind of behavior by conservative litigants, and by Kacsmaryk himself. Though the Supreme Court, which is dominated by Republican appointees, occasionally reverses judges like Kacsmaryk, the Court has slow-walked its review of such judges, often allowing someone like Kacsmaryk to dictate federal policy for months, a year, or more before stepping in.
So Wyden is proposing a radical solution to a devilish problem. Right now, far-right litigants can simply walk into Kacsmaryk’s courtroom and obtain any number of outrageous court orders sabotaging federal policies or access to drugs like mifepristone. And, even if the Supreme Court does eventually step in, it’s likely to do so only after letting Kacsmaryk sow chaos for months or longer.
Wyden’s proposal, to ignore Kacsmaryk’s ruling at least until the Supreme Court issues a final ruling, would neutralize the Supreme Court’s ability to leave Kacsmaryk’s order in effect while the justices wait months before they decide the case.
There are two important precedents for a president refusing to follow a court order
Explicit presidential defiance of the judiciary is rare, and for good reason. The courts are the mechanism the United States uses to ensure that the law is enforced against individuals who violate it. Respect for the law as a whole deteriorates if losing litigants believe that they can effectively appeal any lost case to a partisan president.
But there are two very high-profile examples in which a president did move against the courts — or, at least, in which a president was prepared to move against the courts — in response to utterly catastrophic decisions.
President Lincoln made his intention to defy Dred Scott clear from the very beginning of his presidency, announcing in his first inaugural address that the Supreme Court must not have the last word on slavery:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
He followed up this speech, of course, by signing legislation that was at odds with Dred Scott.
A similar drama played out during the Franklin Roosevelt administration, albeit with a less dramatic climax. In Roosevelt’s first term, many contracts contained “gold clauses” requiring debtors to pay their debts in gold dollars valued at the time the contract was made. Because of rampant deflation during the Great Depression, these gold clauses increased the amount of debt owed under these contracts by as much as 69 percent.
This was obviously a crushing economic burden for borrowers of all kinds, including homeowners. Additionally, these gold clauses drove up the amount of debt railroads owed on their bonds so much that they could have bankrupted most of the railroad industry, potentially shutting down the nation’s ability to ship goods at the height of an economic depression.
Faced with these consequences, Congress declared these gold clauses null and void — effectively establishing that borrowers would owe one dollar for every dollar they borrowed (plus interest, of course), and not $1.69 for every borrowed dollar. Roosevelt, afraid that the Supreme Court would strike down this legislation and reinstate the gold clauses, prepared a speech announcing that he would not obey such a decision.
Ultimately, the Court did not require these gold clauses to be enforced. But Roosevelt was prepared to say that “to stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations.”
There are much less radical solutions to the Matthew Kacsmaryk problem than the one Wyden proposed
Now, let’s be clear, the power that Lincoln exercised in response to Dred Scott, and the power that Roosevelt would have exercised if the Supreme Court had ruled the wrong way in the gold clause cases, is extraordinary and should only be exercised in response to truly outrageous court decisions.
President Andrew Jackson probably didn’t actually utter the words “[Chief Justice] John Marshall has made his decision, now let him enforce it,” in response to an 1832 Supreme Court decision requiring states to honor treaties between the federal government and American Indian tribes. But he is often misquoted as a reminder that the power to defy court decisions can be used for evil ends as easily as it can be used to ward off catastrophe.
Similarly, it’s not hard to imagine what a figure like Donald Trump or Ron DeSantis might do if they believed they have a free hand to ignore the courts.
There are much less radical solutions to America’s Matthew Kacsmaryk problem than open presidential defiance of the courts, assuming that the institutions that have the power to implement those solutions actually want to prevent right-wing litigants from shopping their most ambitious cases to an allied judge.
The reason why every case filed in Amarillo is heard by Kacsmaryk, for example, is a September 14, 2022, order signed by Judge David Godbey, the chief judge of the federal trial court where Kacsmaryk sits, which assigns these cases to Kacsmaryk. Godbey could rescind this order, and replace it with a new order randomly assigning these cases to one of several judges.
The federal judiciary as a whole could also amend its civil procedure rules to provide that all cases will be randomly assigned. Or it could create a new process that, for example, permits the United States to request random assignment of any case that seeks to enjoin a federal policy on a nationwide basis.
Congress could also step in and write a new law governing case assignments. Or it could strip Kacsmaryk’s court of its power to issue nationwide injunctions.
These would be ordinary, measured solutions to the problem of a single rogue judge currently using his power to decide whether doctors can prescribe a widely used drug that has been available in the United States for more than 20 years. And then, in the future, possibly using it to decide any other issue that far-right litigants want him to decide.
But, if neither Congress nor the judiciary is willing to come up with an ordinary solution to the Matthew Kacsmaryk problem, then the only solutions that remain are extraordinary ones like the one proposed by Wyden.
