Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk?

In March 2020, Senator Charles Schumer stood outside the Supreme Court and assailed the two newest members:

"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

That same day, Chief Justice Roberts released a forceful response to Schumer's remarks:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

And in 2018, after President Trump tweeted about "Obama judges," Chief Justice Roberts released another statement:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,"

Yesterday, Senator Ron Wyden unleashed a vituperative attack on Judge Kacsmaryk of the Northern District of Texas. Wyden echoed many of the barbs that have been repeated, over and over again, on Slate, Vox, and elsewhere.  Here are some of his remarks:

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won't let pesky obstacles like standing or precedent get in the way of the agenda they share.

That's because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I'll call "courtwashing."

In the courtwashing scheme, it's his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they're getting as soon as their cases show up on his docket.

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It's tough to earn that kind of infamy in such a short time, but his rulings have justified it. . . .

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it's been a rigged game all along. It's illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America.

So here's what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone.

President Biden and the FDA must ignore it.

Wyden's remarks make Schumer's seem tame. When will Chief Justice Roberts release a statement? Certainly Chief Justice Marshall can be cited here.

Comments

[Kleppe]

"Yesterday, Senator Ron Wyden unleashed a vitperuative attack on Judge Kacsmaryk"

A what attack? Is this some sort of lawyer joke I'm too gainfully employed to understand?

[santamonica811]

Josh, what do you find objectionable about this current statement? (Aside from the fact that you obviously think the judge is not a partisan hack.) With the earlier statement, it *could* be read as a physical threat. IMO, not reasonably be read as a threat, but at least such a reading would not be absolutely insane.

Can you point to the language that you think directly or indirectly threatens this judge? Saying, "His rulings are without legal foundation; and as such, they should be ignored by everyone else." is obviously strong criticism of this judge. But it's also a million miles from any type of threat or intimidation.

Seriously, Josh, what got your panties in a bunch over this?

[myself]

Oh Josh is fully aware that Kacsmaryk is a partisan hack, the issue is that Kacsmaryk is a partisan hack for his side, which means he must be allowed every possible deference to do what he can.

Of course, when Democratic judges were issuing injunctions against Trump's policies Blackman was quite critical of them.

[Rev. Arthur L. Kirkland]

Judge Kacsmaryk is a gay-bashing wingnut who supports limitless special privilege for superstition, which is everything Josh Blackman wants in a judge.

Carry on, bigoted clingers. So far as your betters permit, that is.

[ThanksForTheFish]

Oh shut up you hate filled bigot.

[Rev. Arthur L. Kirkland]

If one of this blog's right-wing fans wants to try to advance an argument that Judge Kacsmaryk is not a gay-bashing, bigot, let's hear it.

[LawTalkingGuy]

He finds it objectionable because Wyden is right. Hit dog holler and all that.

[LawTalkingGuy]

I mean Kasmaryck is a conservative hack without a lot of humility. That’s why they filed there: so they could get a national injunction to remove a drug from the market that’s been approved for 20 years. I mean it takes a huge conservative and a huge arrogant asshole to try to do that by judicial fiat and Kasmaryck has those credentials.

[Rev. Arthur L. Kirkland]

I mean it takes a huge conservative and a huge arrogant asshole to try to do that by judicial fiat and Kasmaryck has those credentials.

How many Federalist Society leaders, Republican legislators, or Volokh Conspirators would you expect to dissent from a Kasmaryck ruling in this context?

[ThanksForTheFish]

Still mad that everyone gets to choose their associations?

[Lee Moore]

The comments about Schumer’s remarks were specifically about SCOTUS Justices. A better reference would be Roberts criticism of Trump on the subject of Obama judges and Trump judges. But he’s already made his point he doesn’t have to repeat it every five minutes. Moreover from Roberts perspective – trying to optimise the public reputation of SCOTUS – making his point while criticising Trump is a much better idea than doing so while criticising anyone else. It’s not like Roberts runs into a lot of Trump fans day to day.

[California Dreamer]

I think the more critical question is the occupation of the person making the comments. If comments are made by the President (e.g. Trump) or the Senate Majority or Minority Leader (Schumer), Roberts apparently feels a response is called for. There is no reason for Roberts to respond to attacks by random members of Congress.

[Orin S. Kerr]

Josh, isn't there a pretty obvious difference between a criticism and a threat? Wyden is saying that Kacsmaryk is a bad judge. But Schumer was threatening personal revenge against Gorsuch and Kavanaugh, perhaps physical violence: "You will pay the price. You won't know what hit you." That's the difference that Chief Justice Roberts focused on in his statement. Criticism was okay, but a threat was not: "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous."

I suppose the argument could be that a politician saying that a judge's order should be ignored is worse than just saying the judge is a hack. But it's still not a threat against the judge.

[LawTalkingGuy]

Er professor, idk if you knew this, but he doesn’t read comments. Or tweets.

[Orin S. Kerr]

That's why I e-mailed him, too.

[LawTalkingGuy]

Fair enough.

[Rev. O.T. Medal]

Many commentators have stated variations of your point, "Isn’t there a pretty obvious difference between a criticism and a threat? Wyden is saying that Kacsmaryk is a bad judge." If Prof. Blackman responds to your email regarding this point -- and he would not object to you doing so -- please post his response in this thread.

[Doug Heffernan]

Please let us know of the substance of his response. Because finding these two instances analogous, and the Wyden remarks somehow "worse", seems to be largely indefensible.

[Brett Bellmore]

I agree they're not alike, in the sense that Schumer actually threatened the Court, and Wyden mostly just insulted the judge.

But you can argue that urging the government to ignore court rulings is worse than hyperbolic threats.

[SimonP]

No, you apparently can't, because you haven't.

[Rev. Arthur L. Kirkland]

Josh Blackman has claimed he doesn't read the tweets. That ordinarily might make it a 50-50 proposition, but the manner in which he corrects (without noting the correction) some of his posts shortly after comments identify the mistakes alters the analysis, at least among reasoning people.

[Doug Heffernan]

Blackman is too much of a narcissist to not ever at least take a peek. Part of being is narcissist is pretending that the reaction of others doesn't matter, but with such deep self-love comes the view that others couldn't help but love you too.

[MoreCurious]

For some reason, I thought of George Santos when I read your comment.

[Rev. Arthur L. Kirkland]

For some reason, I thought of George Santos

But not Andrew Ogles, Anna Paulina Luna, Lauren Boebert, Marjorie Taylor "Jewish Space Lasers" Greene, or Donald "Major Bone Spurs" Trump?

[Procyon Mustelid]

Never trust a man who speaks well of himself.

[Rev. Arthur L. Kirkland]

What kind of asshole describes himself as a "national thought leader?"

Especially while employed at one of the shittiest law schools in America?

Answer: The Volokh Conspiracy's kind!

[Seamus]

Wyden is doing more than just saying that Kacsmaryk is a bad judge. He is urging officials of the federal government to defy a federal court order. You know, like Judge Roy Moore.

[JasonT20]

Wyden is doing more than just saying that Kacsmaryk is a bad judge. He is urging officials of the federal government to defy a federal court order.

Since you seemed to have missed it, I’ll repeat what Prof. Kerr wrote at the end:

I suppose the argument could be that a politician saying that a judge’s order should be ignored is worse than just saying the judge is a hack. But it’s still not a threat against the judge.

There are no consequences of what Wyden urged that would be difficult, let alone impossible to remedy, unlike violence. Any FDA official that took Wyden up on his suggestion would be risking contempt. If said official was acting on orders from the White House, then it probably wouldn’t be him personally on the hook for contempt, and it wouldn’t really have been Wyden’s statement that precipitated him to act, but the order from the White House.

No matter how you dig into it, Blackman’s argument here is an extreme stretch. And phrasing it that way is being charitable to Blackman.

[edit: not guilty analyzes the chance of any contempt ruling from the judge sticking below.]

[ReaderY]

Exactly.

[Kazinski]

I have to say the objectionable part is when Wyden said that the FDA should ignore any ruling.

But I will go out on a very short limb here and say that there will not be a national injunction. And follow that up with if he does issue a national injunction it won’t last 24 hours before the 5th circuit stays it.

[LawTalkingGuy]

That’s being overly charitable to the Fifth. SCOTUS would stay (probably).

[myself]

It will almost certainly get overturned, but I expect they'd find ways to drag their feet like they did when Kacsmaryk ordered "Remain in Mexico" to stay in place.

[momo]

I am surprised the Democrats have not loudly reminded everyone that …

“Federal judges only serve for life (wink, wink)”

Really expected that one to come out for the Dobbs decision.

[Rev. Arthur L. Kirkland]

The important practical point is that right-wingers will constitute a majority of the Court until better Americans enlarge the Court.

See you down that road apiece, clingers.

[Heedless]

The worst sort of threat is that a boring, repetitive, partisan hack will migrate over to your comment section from the Washington post and spill the same boring, repetitive, phrases over and over in every comment thread for half a decade.

You won’t be able to tell if it’s mental illness, exceptionally dedicated trolling, or both, but it will happen with the sort of frequency available only to those who are not gainfully employed.

[Rev. Arthur L. Kirkland]

If you dislike predictable repetition, how did you handle Prof. Volokh's string of diversionary chaff today, and most other days this week, clinger? Unless you are a teenage incel, of course, in which case your attraction to this blog's content is understandable.

If you don't like partisan polemics, what are you doing at this flaming shitstorm of a right-wing hack blog?

[Noscitur a sociis]

The most insidious kind of veiled threats are the completely hypothetical ones.

[BillyG]

Given the kavanaugh assassin and the number of death threats against connecting SCOTUS justices..... Actual is more like it. I personally know some libs who talked about killing a SCOTUS judge.

[Rev. Arthur L. Kirkland]

The people doing the talking about killing at this blog, with Prof. Volokh's approval, are the conservatives.

[LawTalkingGuy]

Sonia Sotomayor was on a hit list of a dude who actually in real life murdered the son of a federal judge at her home and seriously wounded her husband. This was a Men’s Rights Activist and who had been a Trump supporter.

This event has been memory-holed by everyone for some reason.

[The Margrave of Azilia]

When I checked Wikipedia for this incident, it said the killer was against the male-only draft.

So this was no patriarchal male chauvinist who wanted to exempt women from conscription as part of a keep-them-in-the-kitchen agenda. He was an advanced thinker who thought it unfair to send men to the front without forcing women to accompany them. This puts him in the same camp (so to speak) as the feminists.

I'm just suggesting that anyone can do guilt by association.

[LawTalkingGuy]

https://en.m.wikipedia.org/wiki/Roy_Den_Hollander

Maybe read a little more closely under the section: political beliefs

[The Margrave of Azilia]

"Den Hollander had appeared before Salas in connection with a lawsuit he brought challenging the military's male-only draft."

https://en.m.wikipedia.org/wiki/Esther_Salas

[LawTalkingGuy]

“ In various online writings running to thousands of pages, Den Hollander denounced women and specifically female judges. In 2,028 pages posted online in 2019, he espoused "sexist, racist, and misogynistic" views, and in one such document, disparaged Salas directly. In another document, which outlined possible "solutions" to feminists and "political commies", he wrote, "Things begin to change when individual men start taking out those specific persons responsible for destroying their lives before committing suicide.”

He said that he was a volunteer for Donald Trump's presidential campaign, and attacked President Barack Obama, Supreme Court Justice Sonia Sotomayor, and Hillary Clinton.”

[The Margrave of Azilia]

So...a woman-hater who didn't like it that men were registered for the draft while women weren't.

Like I say, guilt by association can work many ways.

[The Margrave of Azilia]

Numerous femininst groups sought (unsuccessfully) to have the Supreme Court abolish the male-only feature of Selective Service registation:

https://www.supremecourt.gov/DocketPDF/20/20-928/168801/20210211160547842_202102.11%20NOW%20Amicus%20Brief.pdf

Since I oppose guilt by association, I won't exploit, for political purposes, the fact that these feminist groups have the same bottom-line position as a fanatical misogynist murderer.

[Nige]

You mean since you would prefer to ignore that actual ideological framework that lead him to this act.

[The Margrave of Azilia]

I'm pretty sure you mean "led," and I'm showing how guilt-by-association could work if you're into that sort of thing.

A murderer who hated women didn't like the idea of registering/drafting men but not women.

[Sarcastr0]

I personally know some libs

::doubt::

[Noscitur a sociis]

Given the kavanaugh assassin and the number of death threats against connecting SCOTUS justices….. Actual is more like it.

Take it up with momo, the poster I’m responding to, who said that (notwithstanding expectations) Democrats aren’t making the threats.

Other than that, great comment!

[Frank Drackman]

If you're gonna threaten judges should be someone more threatening than that Unter-Nebbish Chucky Schumer, he's not a real Luca Brasi,

Frank

[Snorkle]

Which part, exactly, does Mr. Manager think is false?

[John F. Carr]

If the FDA openly ignores the order judge Kacsmaryk can start throwing people into the dungeon. But Biden can pardon them if the charge is criminal contempt, and civil contempt would be terminated by an appeals court decision overturning an injunction.

[ragebot]

https://wordhistories.net/2019/08/23/how-many-divisions-pope/comment-page-1/#:~:text=The%20phrase%20How%20many%20divisions%20has%20the%20Pope%3F,OCCURRENCE%20OF%20THE%20QUESTION%20ALLEGEDLY%20POSED%20BY%20STALIN

[not guilty]

Just spitballing here, but I think I am on solid ground.

Suppose Judge Kacsmaryk issues a nationwide injunction ordering the FDA to withdraw mifepristone and misoprostol as FDA-approved chemical abortion drugs. Suppose FDA personnel refuse to comply, and indirect criminal contempt proceedings ensue.

The issues in a criminal contempt proceeding for violation of an injunction are whether the court issuing the injunction had personal and subject matter jurisdiction and whether the alleged contemnor willfully violated the order beyond a reasonable doubt. See, Walker v. City of Birmingham, 388 U.S. 307 (1967). Federal district courts are courts of limited jurisdiction. The case or controversy language of Article III requires, as a necessary component of subject matter jurisdiction, that at least one plaintiff pleads and proves standing to litigate each issue purported to be raised by the pleadings.

The irreducible constitutional minimum of Article III standing contains three elements: First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of —the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A "particularized" injury must affect the plaintiff in a personal and individual way. Id., at 560 n.1.

In Alliance for Hippocratic Medicine, et al. v. U. S. Food and Drug Administration, et al., the plaintiffs claims of standing are conjectural, speculative and attenuated. https://adflegal.org/sites/default/files/2022-11/Alliance-for-Hippocratic-Medicine-v-FDA-2022-11-18-Complaint.pdf As Dahlia Lithwick and Mark Joseph Stern have written in Slate (February 6, 2023):

The plaintiffs are anti-abortion medical associations joined by anti-abortion doctors. Their claim is that some future patient might take mifepristone, suffer a rare side effect, then come to their practice for help, and that would qualify them for relief in federal court. But this claim rests on multiple layers of speculation and contingencies, exactly the kind of hazy conjectures that do not establish standing. There is no evidence that any of the doctors currently face this problem; it is pure hypothesizing. There is certainly not evidence that anyone is suffering the exaggerated, catastrophic side effects the plaintiffs fabricate in their brief. And even if there were, it would not establish standing, because there are too many other factors that might have led this particular patient to this particular doctor’s office. In legal terms, the injury is not “fairly traceable” to the FDA’s approval of the drug. Otherwise, any doctor could challenge the approval of any medication that allegedly could harm their future patients, opening the floodgates to endless physician suits against thousands of drug approvals over previous decades.

Someone charged with contempt for violating an injunction could collaterally attack the issuing court's subject matter jurisdiction for lack of the plaintiffs' standing to litigate. Criminal contempt is a crime in every fundamental respect. Bloom v. Illinois, 391 U.S. 194, 201 (1968). The Sixth Amendment guarantees that a criminal trial take place in the State and district wherein the crime shall have been committed. If the allegedly contumacious conduct occurred outside the Northern District of Texas, Judge Kacsmaryk's result oriented disregard of Article III standing requirements would afford a defense to criminal contempt.

[The Margrave of Azilia]

I believe that Bloom v. Illinois officially abolished the criminal contempt exception to the jury trial right.

The reason we don’t have jury trials for most alleged criminal contempts is that the judges classify the contempts as petty offenses, meaning there's no jury and the prison sentence upon conviction must be six months or less.

Imagine the results of trying all criminal contempt cases by jury.

[Brett Bellmore]

There's be fewer of them? Thanks for reminding us, though, that the judiciary don't understand the word "all".

[John F. Carr]

The court in Walker v. Birmingham did not need to decide whether an injunction could be collaterally attacked on the grounds that the issuing court lacked jurisdiction. Is there any good precedent allowing such challenges? A court without subject matter jurisdiction still has some authority to cite for contempt. At least, it has jurisdiction to determine its jurisdiction.

[Noscitur a sociis]

1. You generally cannot attack the validity of an injunction in a criminal contempt proceeding, including by asserting the court has no jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 292-293 (1947).

2. Surely the plaintiffs would be more interested in civil contempt proceedings anyway?

[Ed Grinberg]

A Democratic senator says that a Republican-appointed judge's decision (which he hasn't even issued yet!) is "illegitimate," and urges the Democratic administration to "ignore it."
Now, when Republicans take over the federal administration, wouldn't you expect them to take a similar position toward judicial decisions they don't like? Or does this only go one way?

[Ed Grinberg]

https://en.wikipedia.org/wiki/Crossing_the_Rubicon
Isn't it curious that it's the people who've been continually screaming about "threat to Our Democracy!!!" for two (six?) years that are doing this (and have done plenty of similarly provocative / potentially dangerous things)?

[David Nieporent]

that are doing this

Doing what?

[John F. Carr]

A speech in the Senate is constitutionally privileged and at the same time without any more legal consequence than Marjorie Taylor Greene going on about the Jews. I would hold onto the hypothetical until the Biden administration acts or fails to act.

The administration can render the order toothless without openly defying it. Step one, publish the withdrawl of approval by an ordinary notice in the federal register. Notices take a long time to get through the review and publishing process. Perhaps the action will spur a legal challenge and the FDA will be ordered to re-approve the drug. Step two, let it be known informally that the FDA will not be enforcing the prohibition on sale of unapproved drugs until final resolution of the case. The Supreme Court is not a fan of abortion, but it will stand up for prosecutorial discretion.

[SimonP]

Whatabout, whatabout, whatabout, etc.

To be sure, it’s setting up a constitutional crisis. But that would be a crisis triggered by the tendency of Fifth Circuit district court judges to do whatever the fuck they want, and by the Fifth Circuit’s eagerness to go along with their shenanigans. At some point the judiciary can overreach, and we are getting awfully close to that point – if we’re not well past it already.

[Stephen Lathrop]

Leaving the Fifth Circuit aside, considering Dobbs and Bruen as the representations of history and tradition they purport to be, they are well past that point already.

[Michael Ejercito]

What, exactly, did this judge rule on?

[John F. Carr]

The docket for the controversial case is here: https://www.courtlistener.com/docket/65768749/alliance-for-hippocratic-medicine-v-us-food-and-drug-administration/

So far he has only made case management orders. Lots of attorneys are asking for admission pro hac vice in this high profile case.

[hoppy025]

Wyden is a thug, and you hypocrites are leftist traitors. Had a Republican senator said, in the aftermath of Obergefell, "Yeah, we don't think men whose idea of 'love' is ejaculating into other men should get state marriage licenses for that sodomy, so we're just going to ignore it," you pieces of shit would be screaming about "judicial autonomy" and "norms."

Just more evidence that "civility" and "norms" are a one way street. Fuck you all.

[Rev. Arthur L. Kirkland]

This is the Volokh Conspiracy's target audience.

And the reason legitimate law schools should refrain from hiring any additional movement conservatives for faculty positions.

[hoppy025]

And your target audience consists of little boys.