- The Supreme Court ruled to uphold FDA approval of the abortion pill on Friday.
- Justices Clarence Thomas and Samuel Alito publicly dissented, with Alito writing an opinion.
- A SCOTUS expert said it appeared Alito was accusing three female justices of hypocrisy.
A Supreme Court ruling on Friday ensured the abortion pill mifepristone can still be purchased and used in the US, freezing a lower court ruling that would’ve effectively banned access to the pill.
Two justices, Clarence Thomas and Samuel Alito, publicly dissented, with the latter writing an opinion in which he called out three female justices by name — including fellow conservative justice Amy Coney Barrett — in an apparent act of judiciary “theater,” Scott Lemieux, a professor of political science at the University of Washington and an expert on the Supreme Court and constitutional law, told Insider.
The case came to the court after a judge in Texas ruled to suspend the Food and Drug Administration’s more-than-20-year-old approval of mifepristone. The Biden administration asked the Supreme Court to grant an emergency request that would protect the FDA approval while the case is still being litigated.
Because it was an emergency request, the case was reviewed under what is known as the court’s “shadow docket,” where they rule on procedural matters. Cases that are considered on the shadow docket do not get the same level of review as other cases, meaning “the decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority,” according to the Brennan Center for Justice.
Indeed, while the Court said they were granting the Biden administration’s request, no explanation was provided by the majority as to why. The ruling did not specify how most of the justices voted, or even how many justices voted in favor. Both Thomas and Alito elected to note their dissents, with only one of them explaining why.
For part of his reasoning, Alito focused on the “shadow docket” itself. He wrote that the court has previously been criticized for shadow-docket decision-making, and specifically called out three female justices — Elena Kagan, Sonia Sotomayor, and Barrett — citing rulings in which they previously objected to using the shadow docket.
Alito, who has defended the court against complaints about the shadow docket in the past, added: “I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here.”
“There’s something personal about the tone of Alito’s opinion,” Lemieux said, adding it was notable that Thomas did not join him.
Alito did not respond to Insider’s request for comment via the Supreme Court’s press email.
Lemieux said Alito has been stung in the past by accusations of abusing the shadow docket, particularly on rulings he has made related to abortion access and religious freedom cases during the pandemic.
“I think he’s trying to do a little theatre with ‘wait a minute! I thought you were against using the shadow docket and changing things in these ways,'” Lemieux said.
But Alito’s comparison — and accusations of hypocrisy — may not be justified. Lemieux said Alito and the conservative majority have faced criticism for using the shadow docket to disrupt the status quo, making drastic legal changes without transparency.
Friday’s ruling does the opposite.
“The use of the shadow docket here is not disrupting the status quo, it’s preserving the status quo,” Lemieux explained of the abortion pill ruling, which simply allows the most common abortion medication to stay on the market. “This is the kind of case that the ‘shadow docket’ is for: to preserve the status quo so that a case — that frankly, does not strike me as very meritorious — can be resolved.”
Despite Alito appearing to call out Kagan, Sotomayor, and Barrett, there’s no way of knowing for sure how any of the justices voted, beyond the two who noted their dissent.
Lemieux added it’s not unusual for justices to call each other out in opinions, but said Alito’s dissent was “clearly reflective” of the fact that he feels he’s been unfairly characterized.