Remember When "Judicial Activism" Was A BAD Thing?
Turns out it's a GREAT thing when White Conservative Christian heterosexuals are the activists.
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
C. S. Lewis
During the 3722 days I spent living on the Texas Gulf Coast, I remember many an occasion when I heard Conservatives braying about “Liberal judicial activism.” This was often accompanied by a furious red visage, veins popping from the forehead, and spittle flying in more directions than anyone could track.
Yes, these good, God-fearing, Texan examples of White Conservative Christian heterosexuals HATED it when “Liberal judicial activism” meant that judges didn’t rule as they thought were right and proper.
So over the weekend, we were treated to stories about how federal judge Matthew Kacsmaryk, a committed anti-abortion American Taliban Christian, struggled with his decision regarding whether to ban Mifepristone.
As one of the two drugs (the other being Misoprostol) in the medication abortion tandem, Mifepristone was the latest target of anti-abortion activists. And, having gone “judge-shopping,” they settled on Kacsmaryk, who represented a reliable bet for a favorable ruling.
conservatives in search of the opposite of justice love Matthew Kacsmaryk, because he’s a right-wing Federalist Society shitiologue who is always happy to ignore facts or precedent or law and rule whichever way they tell him to. wingnuts looking for a predetermined outcome will file suits in his jurisdiction, because they know he’ll do their bidding.
and so Judge Kacsmaryk suspended the approval of mifepristone, an abortion-inducing drug that has been on the market for more than 20 years. not for any scientific reason. not for any medical reason. not even because he has legal standing to make any judgement at all.
Judge Kacsmaryk suspended the approval of mifepristone because fuck you, that’s why.
Because “judicial activism” isn’t a problem when a White Conservative Christian heterosexual is the one responsible for the activism.
WHAT hypocrisy, eh?
Of course, no one should be surprised that Judge Kacsmaryk ruled as he did because he lived up to his beliefs and the convictions of the world he inhabits. His decision is exactly what anti-abortion zealots assumed they would get from him.
And he certainly didn’t disappoint those who expected Judge Kacsmaryk to deliver for them.
When Judge Matthew Kacsmaryk was a young father, his wife captured much of their daily life on a parenting blog that highlighted the family’s strong antiabortion beliefs.
One photo showed one of their children, a toddler, in a T-shirt that read “I survived Roe v. Wade.”
“As you might guess, Matt LOVES this shirt,” Kacsmaryk’s wife wrote in January 2009, referring to her husband. “I put it on her today not even realizing that today is the anniversary of Roe v. Wade.”
Now, 14 years later, as a 45-year-old federal judge in Amarillo, Tex., Kacsmaryk lives in the same antiabortion world he has inhabited his entire adult life, surrounded by friends and family who abhor the procedure, while holding the same views himself, as The Washington Post reported in February. Those perspectives, rooted in deeply held Christian beliefs, have swirled around him over the past five months as he deliberated whether to revoke government approval of a key abortion drug — a decision with nationwide implications that some close to him felt he was destined to make.
Symbolically, on Good Friday, perhaps coincidentally but most likely not, Kacsmaryk delivered the decision that anti-abortion zealots expected, nay, demanded.
What was stunning about his decision was not so much the decision itself, but what he said in it.
In a 67-page decision, he put a hold on the U.S. Food and Drug Administration’s approval of mifepristone, used in over half of all abortions in the United States. Kacsmaryk wrote in his opinion that the approval process was rushed and that the pill is unsafe, arguments that have been debunked by leading medical associations. The ruling will not take effect for at least seven days, and it was quickly met Friday night with a contradictory opinion from a judge in Washington state. The case could go to the conservative-leaning U.S. Court of Appeals for the 5th Circuit and then probably end up at the Supreme Court.
The approval process was rushed and Mifepristone is therefore unsafe? I haven’t read the decision and, not being an attorney, I’m not going to, but it would be interesting to know how he’s defining “unsafe.”
Mifepristone is safer than giving birth. It’s safer than Viagra, which, unsurprisingly, wasn’t addressed in Kacsmaryk’s ruling and remains on the market. It’s safer than acetaminophen.
Unsafe? By whose standard?
Since Kacsmaryk joined the federal bench in 2019, he’s become a “go-to” jurist for Conservatives looking for favorable decisions.
In a practice Conservatives are quick to decry when they believe Liberals are doing the same thing, they frequently engage in “judge shopping.” They search out the Amarillo division of the Northern Division of Texas, which has become a favorite place for Conservatives to challenge Biden Administration policies.
Amarillo is a district with a single federal judge, so Conservatives always know that their case will be heard by Judge Kacsmaryk. And they can be reasonably certain of obtaining a favorable ruling when they come before him.
Kacsmaryk was nominated by The Former Guy, who knew that as a federal judge, the role came with a lifetime sinecure and the ability to make decisions that could potentially have nationwide implications. Young judges like Kacsmaryk were appointed knowing that MAGA would survive long into the future and continue to impact America.
One of the disturbing aspects of Judge Kacsmaryk’s ruling is that he took the opportunity to rule on the safety of Mifepristone as a license to expand on his personal philosophy on abortion.
His use of language employed by the antiabortion movement betrays the reality that he saw no reason to restrict his ruling to the legal matter at hand.
Indeed, he appeared to be quite comfortable with expanding on his personal beliefs within the 67-page ruling.
This would be a good place to revisit the fact that Conservatives furiously decried “judicial activism” when they believed “Liberal judges” were guilty of “taking the law into their own hands.”
Now that White Conservative Christian heterosexual judges are doing it, Conservatives are smiling and breaking out the champagne and cigars.
The hypocrisy is almost palpable.
Antiabortion advocates celebrated both the substance of Kacsmaryk’s ruling and the language he used to craft his points. The judge referred to fetuses as “unborn humans” or “unborn children” and doctors who provide abortions as “abortionists” — terms often invoked by the antiabortion movement. He implied that abortion is a form of social Darwinism, a theory used to justify the discredited and racist practice of eugenics, which aimed to “improve” the human race through planned breeding based on genetic traits.
“Though eugenics were once fashionable in the Commanding Heights and High Court, they hold less purchase after the conflict, carnage, and casualties of the last century revealed the bloody consequences of social Darwinism practiced by would-be Übermenschen,” Kacsmaryk wrote in the ruling.
Judges are supposed to rule impartially on matters of law. Of course, judges are human beings with feelings, opinions, moral convictions, and religious beliefs. They can’t be expected to ignore them altogether when ruling on cases, but they’re ruling on matters of law, not personal preference, belief, or conviction.
And it appears that Judge Matthew Kacsmaryk is perfectly comfortable with virtue signaling and letting those within and outside the legal community know how he feels about issues he rules on.
Some were in touch with him during his deliberations on the abortion pill case and noted that he was clearly comfortable with the public knowing the depth of his personal convictions about abortion.
“I think he isn’t afraid for people to know he has personal beliefs on it,” said one friend who saw Kacsmaryk in the weeks ahead of the ruling and, like others in this story, spoke on the condition of anonymity to describe private interactions.
A “Liberal” judge (one appointed by a Democratic President) would be rightfully excoriated for such judicial activism. A judge’s job is to rule on the law, not to moralize and/or expound on how his personal feelings and opinions impact his rulings.
Our legal system depends on the perception of judicial impartiality. If “judge shopping” is employed to obtain favorable decisions, and if judges are allowed to moralize and inject their opinions into decisions, where’s the impartiality? How can anyone going before a judge expect their case to be judged on the merits of the law? How long before “judge-shopping” will involved actual shopping, with favorable decisions going to the highest bidder?
Nationwide, something like two out of three voters supports abortion rights. Anti-abortion zealots know that. They also don’t give a damn about public opinion. They believe that THEIR opinion and belief system is the one that matters, and so they’ll happily force their morality on the rest of the country. That they’re a pronounced minority matters not at all.
And if they have to “judge-shop” to accomplish their goals…well, God works in mysterious ways, no?
Like many federal judges appointed by The Former Guy, Matthew Kacsmaryk pledged to decide matters that would come before him based on the law. Then, once in office, he’s followed a path expected of Conservative jurists. It wasn’t particularly surprising when anti-abortion zealots came to his courtroom seeking a reliably Conservative judge to take down Mifepristone. They knew exactly what they were after…and Judge Kacsmaryk provided them with it.
Why else would anyone go to Amarillo, TX- a place that has all the charm of a junior high school boys’ locker room?
When Kacsmaryk appeared before the Senate in 2017, he vowed to be fair in his rulings.
“As a judge, I’m no longer in the advocate role,” he said. “I’m in the role of reading and applying with all good faith whatever Supreme Court and 5th Circuit precedent is binding.”
As he prepared to issue the decision, Kacsmaryk was subdued and seemed to lack his usual joy, according to two friends who recently spoke with him. The decision was clearly weighing on him, the friends said, and the judge at times seemed lonely.
Lonely? I’d hope he was miserable. After all, he was about to use his jurisdiction as a federal judge to pursue his personal moral and religious agenda. At the very least, he should feel profound guilt and a crisis of conscience. He’s using the law to decide that he knows more than medical professionals.
Apparently, that’s where America is today.
Opponents of Mifepristone have consistently spoken of “protecting” women. Yet the drug has proven to be safer than giving birth. Its safety and efficacy have long been established and widely accepted by the medical community.
This isn’t a matter of “protecting” women from a “dangerous” drug. That argument is pure bullshit and camouflage for the purpose behind the argument being made by anti-abortion zealots who want to ban all forms of the procedure. Under any circumstances. For any reason. Including saving the life of the mother.
“Protecting” women? Women are merely vessels to the anti-abortion zealots behind this case. They care no more for the safety and well-being of women than they do for the children killed in school shootings. Women don’t register as people, merely as means to an end. Ultimately, it’s not about protecting women; it’s about controlling them. And no attempt is being made to camouflage their intent.
And that is perhaps the most disgusting aspect of this sad charade.
This case is ultimately about a view of the world which holds that women have one responsibility- bearing and raising children. Anything beyond that is a misappropriation of God’s purpose for women.
These people see anything that would keep women from performing their primary mission to be an affront to God. Therefore, Mifepristone as an abortifacient is an affront to God. Now that Judge Kacsmaryk has ruled Mifepristone to be unsafe (!!!) and that the FDA rushed its approval process so many years ago, one question remains:
How soon will the same anti-abortion zealots go after Misoprostol, the other half of the medication abortion tandem?
Then, how long before other red states will pass laws similar to Idaho, which now prevents what it calls “abortion trafficking.” That’s right; Idaho invented an entirely new crime to prevent pregnant minor children from traveling out of state to seek abortion services without their parent’s consent.
So now that Conservatives are winning, they’re beginning to insist that it’s time to move on to other issues. This serves a couple of purposes for them:
They honestly believe they’ve won abortion, and they believe that it’s time to shut down the conversation and move on so they can consolidate their victories. The more attention that’s focused on the issue, the more they feel they have to lose…and they’re right.
They recognize that their efforts to outlaw abortion run counter to public opinion, so the last thing they want or need is a spotlight focused on their efforts. By the time the 2024 elections roll around, they want to figure out a way to blame Democrats for rolling back abortion. Mark my words.
When all is said and done, though, this is first and foremost about partisan jurisprudence of the sort purchased by “judge-shopping.” You can bet that if Liberal abortion supporters had done something similar, the hue and cry and weeping and gnashing of teeth would be heard from sea to shining sea. From Spokane to Tallahassee and from Bullhead City to the Shenandoah Valley, Conservatives would be decrying the unfairness of it all.
Remember, kids, it’s only “judicial activism” when judges appointed by Democratic Presidents do it. When judges appointed by Republican Presidents do it, it’s merely prudent and well-considered jurisprudence.
And you can almost smell the hypocrisy from here, can’t you? It’s redolent of dead fish and bad intentions.
This is why Republicans can’t govern effectively…but I’ll leave that argument for another time, eh?
