Fifteen months into Donald Trump’s second term, lower courts are frequently overturning immigration regulations, despite ongoing Supreme Court rulings that support ICE’s authority to detain and deport undocumented immigrants. The Supreme Court hasn’t acted quickly to intervene in these decisions.
However, when a lower court made a ruling against the Department of Health and Human Services over the approval of abortion pills for mail-order, the Supreme Court was quick to step in. It’s interesting how our 6-3 conservative majority seems more like a 7-2 majority opposed to various conservative agendas and even against its recent rulings.
The alleged conservative majority appears to be a group that, instead of aligning closely with conservatives, tends to frustrate them in a more polite way than the left.
In this latest case, the Supreme Court decided to pause a Fifth Circuit order that had blocked access to abortion medication mifepristone via mail and telemedicine. Although the expansion of mifepristone for mail distribution might seem illegal, only Justices Clarence Thomas and Samuel Alito seemed inclined to challenge it. Yet, the injunction remains upheld.
That is quite revealing.
It’s all getting a bit predictable
Let’s start examining the legal context, then think about the political ramifications and the broader hypocrisy of the court.
In 2023, several physicians who oppose abortion for ethical and religious reasons challenged the FDA’s initial approval of mifepristone from 2000. They claimed that the agency’s approval, issued under Subpart H regulations, violated the law by treating pregnancy as a disease.
Additionally, they contended that the Biden administration’s expansion of the drug’s use through mail-order prescriptions bypassed the Comstock Act. This legislation forbids the mailing of any drugs intended to induce an abortion, categorizing violations as felonies.
A Texas district court initially sided with the doctors, but the Supreme Court subsequently dismissed the case.
Recently, the Fifth Circuit ruled with Louisiana on another challenge against mifepristone. The state argued that the whole mail-order system for abortion pills went against the decisions made by the Dobbs ruling which handed abortion authority back to the states. The FDA policy allows residents in Louisiana, where abortions are forbidden, to receive abortion pills by mail.
Last week, by suspending the injunction, the three justices appointed by Trump made it abundantly clear they would overturn conservative lower court decisions, even when supported by law or recent Court precedent.
This reflects a typical Republican approach: a step forward followed by a significant step back.
Thomas and Alito remain steadfast
While Planned Parenthood faces challenges in various states, the Trump administration has shown support for the abortion industry by backing the expansion of Biden’s abortion pill policy. The effects of Dobbs have turned almost every mailbox into a means for abortion services. As of 2023, around 63% of all abortions are chemical ones, and it’s likely those numbers are climbing.
Republicans can’t cheerfully acknowledge the Dobbs ruling while seemingly allowing mifepristone to continue without challenge. In Trump’s administration, rather than fighting against it, there’s a surprising alignment with the abortion sector. It seems their so-called “pro-life” stance has turned into a disingenuous act of abandonment.
Moreover, there’s noticeable hypocrisy among Republican justices, with only Thomas and Alito maintaining their principles.
Over the past year and a quarter, liberal judges have repeatedly invalidated immigration policies, invented rights for undocumented individuals, and disregarded Supreme Court precedents, with the high court showing little interest in reversing those rulings.
Day after day, lower courts order ICE to release individuals who’ve committed crimes on bail, clearly contradicting the Immigration and Nationality Act. The Supreme Court has paused part of Trump’s efforts to revoke temporary protected status for specific nationalities but has not decisively put an end to the ongoing lower court reversals. Recently, a district judge even managed to thwart Trump’s attempt to revoke TPS for Yemeni individuals.
One particularly disconcerting incident involved U.S. District Judge Julia Kovic, who disregarded Trump’s travel ban, absurdly implying that attacks on National Guard troops by Afghans weren’t adequate grounds to suspend visas from similar nations. Yet, previous rulings have made it clear the INA provides the president with the authority to suspend visas for any country at any time, if deemed in the national interest.
What exactly is conservative about this court?
This trend continues across various issues. A DC Court of Appeals recently ruled that the president must accept asylum requests at the border, despite possessing clear authority to limit entry under the INA. However, none of the judges in lower courts seem to face the same scrutiny as the judges in the Fifth Circuit.
The gun control scene reflects similar inconsistencies. Recent decisions continue to permit states to impose limitations on firearms, seemingly ignoring the necessity for modern gun regulations to align with historical norms. The Supreme Court declined to address challenges against restrictions on semi-automatic rifles in places like Maryland.
In these cases, Justices Gorsuch, Thomas, and Alito dissented. Meanwhile, Kavanaugh and Barrett remained silent.
Remember the Harvard affirmative action ruling that was intended to abolish race-based admissions? Discrimination persists, and lower courts still acknowledge noticeable biases against white and Asian students. Alito, who joined Thomas in dissenting, noted that the Court had previously opted not to address explicit constitutional errors that could perpetuate unjust race-based affirmative action.
Since then, hardly any meaningful follow-up has occurred.
So, what exactly is conservative about this court? What principle is being upheld?
It doesn’t reinforce the rule of law, punish corrupt lower courts, or safeguard states’ rights in matters of abortion, immigration, gun rights, or equal treatment.
Thomas and Alito grasp the existing challenges while the remaining so-called conservative justices increasingly resemble a group that’s more likely to let down conservatives more gently than the left.
