Preet Bharara:
From CAFE and the Vox Media Podcast Network. This is Stay Tuned In Brief. I’m Preet Bharara. June is an eventful month, the end of school, the start of summer. In the legal world it’s Supreme Court decision season, and we are in the thick of it. That’s why for the next few weeks, CAFE is bringing you special Supreme Court coverage. We’re going back to the basics to talk about foundational case law, and of course we’ll break down the most consequential decisions handed down this term. Just last week, the Court ruled in several major cases, including the long-awaited decision in the case challenging the FDA approval of the abortion pill, Mifepristone.
Joining me to discuss is Trevor Morrison. He’s a professor of law and Dean Emeritus at New York University School of Law. He previously served as a law clerk to the late Justice Ruth Bader Ginsburg, as associate counsel to former President Barack Obama, and more recently as a member of the Presidential Commission on the Supreme Court of the United States.
Trevor, my friend, how are you?
Trevor Morrison:
I’m well. Good to be with you Preet.
Preet Bharara:
So a lot going on. Is June a month where you get a little less sleep because you have to read a lot of opinions?
Trevor Morrison:
Yeah, there is a sort of seasonality to the Court and therefore for all of us who follow the Court. And there’s a lot of anticipation these days, often a lot of dread associated with June when we know that big cases are going to be decided. This is one of those years where I think many of us are concerned about what the Court is liable to do in some of those cases.
Preet Bharara:
Well, on this case, the Mifepristone case, people on a certain side of the political spectrum, yourself and myself included, are they right to be heartened by this decision? Because there was some concern after Roe was overturned in Dobbs that reproductive rights would be pulled back very, very substantially. Here you have a unanimous decision rejecting the petitioner’s claims that the FDA overstepped its authority and that Mifepristone might’ve actually been unavailable in many ways in a lot of states. This decision as it put it to rest altogether, and actually before you get to that, just very briefly remind folks what the case is about.
Trevor Morrison:
Sure. So Mifepristone is a drug that can be used to terminate a pregnancy, often called the abortion pill. And the FDA had approved it in stages, basically. There was this sort of initial approval that it could be prescribed at all and then during COVID there was an approval for it to be dispensed by the mails. And in a sense, this case involves challenges to both of those approvals. The technical legal issue is really a matter of administrative law and statutory interpretation, whether FDA had an adequate basis to approve this drug for that use. The weird about the case is the people who were bringing it, it was an association of doctors and individual doctors who are all opposed to abortion. And it was really on the basis of that opposition that they sued to try and stop Mifepristone from being made available.
So before you even get to the merits of the case, there’s a really big question, a sort of threshold question. Do these plaintiffs have standing to bring this lawsuit? They’re not saying that they are prescribing Mifepristone, they never would. And so they’re really trying to challenge FDA’s regulation of this drug as it is being prescribed by other doctors. The question is, are these doctors harmed by anything that FDA has done, that the government has done? Do they have standing?
Preet Bharara:
Yeah. So let me ask you a couple of more questions about that. We’ve talked about standing on the podcast before. I’m very fond and you may be also of Justice Scalia’s famous rendering of what standing means, colloquially basically, what’s it to you? What’s it to you?
Trevor Morrison:
Justice Kavanaugh actually quoted Justice Scalia’s line in this opinion. That’s right.
Preet Bharara:
Just to be clear, as you’ve just said, nothing in the decision goes to the merits at all. In fact, it’s unanimous on the issue of whether or not this particular class of claimant or petitioner has skin in the game. Why is standing important and what should we take from the fact that that’s the basis of this decision?
Trevor Morrison:
So standing is a very important doctrine in our constitutional law. The Supreme Court has said that, has emphasized the importance of it time and again. And it really connects to the idea that the federal courts exist to decide what the Constitution calls cases and controversies, not just to address abstract legal issues because they are important to some number of us. I think that’s confusing to members of the general public who think of the Supreme Court as the court that just decides big legal questions. And that’s true, it decides monumentally important questions and has done so throughout the country’s history. But it decides those questions in the context of concrete cases where the litigants in front of the court have skin in the game where they can answer Justice Scalia’s question, what’s it to you? And talk about a concrete injury, if it’s someone challenging government action a concrete injury that they’ve suffered or that they are about to suffer as a result of what the government is doing and what they’re trying to challenge in the case.
And so we insist on that and we insist that standing be established at the threshold you’re supposed to establish standing before we even get to the merits of the case. And if you can’t satisfy the requirements of standing, then the case needs to be dismissed for that reason. And what the Supreme Court held, as you say, unanimously, is that these plaintiffs don’t have standing. That’s a good result. It doesn’t say anything about the merits of whether the FDA acted within authority in approving Mifepristone in the first place. That’s the merits of the case. What they said is these plaintiffs aren’t entitled to raise that question because they can’t establish standing.
That was the right result. I’m glad that the court was unanimous in that result. But I don’t know that I would call it an immense step forward for reproductive justice, say. It isn’t. It didn’t reach the merits. And actually this case never should have been at the Supreme Court at all. With all due respect to the lower federal courts that heard this case in the first instance, a district court judge in Texas and then the United States Court of Appeals for the Fifth Circuit, with all due respect to those courts, when they concluded that these plaintiffs had standing they made basic errors of legal analysis that were so atrocious that if my constitutional law or federal court students were to make errors like that, I would be worried that they had misunderstood everything I had been teaching.
Preet Bharara:
Wait a minute. So you’re a professor.
Trevor Morrison:
Indeed.
Preet Bharara:
I also teach at the same law school courtesy of your recruiting me some years ago.
Trevor Morrison:
Yeah.
Preet Bharara:
What grade would you give a student who provided the analysis of the lower courts?
Trevor Morrison:
The lowest grade available on the scale?
Preet Bharara:
So A minus. That’s just my running commentary on grade inflation, Trevor.
Trevor Morrison:
Well, I guess that’s topic for another podcast. But, no, substantially lower than an A minus.
Preet Bharara:
What about this argument that the plaintiffs made in this case? They said, and sometimes you hear, I think liberals make this argument in other contexts and that is you might have a situation where there’s kind of nobody who might have standing and nobody to be able to vindicate some unjustness or unconstitutionality of a statute or provision. And Justice Kavanaugh said just because it may even be true, I don’t know if it is or not, that nobody might have standing that’s not a reason to grant some particular class of people standing. Can you explain? Because it sounds confusing when you say it.
Trevor Morrison:
So you’re right. Actually, Justice Alito during the oral argument in the case put that very question to the federal government’s lawyer, to the solicitor general. He said, if these plaintiffs don’t have standing, then who would have standing? And the solicitor general didn’t give a definitive answer, but sort of agreed with Justice Alito that it might be the case that there wouldn’t be anyone who would have standing to raise these particular legal claims. And she said, and then Justice Kavanaugh in his opinion for the Court said, but that has never been a reason to grant any particular person standing.
The idea of standing is not that every legal issue has to be able to be raised in the courts by at least somebody, so somebody has to have standing. It might be in our system that there are really important legal questions that just can’t be addressed in the courts at all. The Supreme Court said just several years ago, for example, that when it comes to the election law area that claims of partisan gerrymandering, that legislatures have redrawn electoral maps just to pursue partisan advantage, maybe to lock in a particular party’s majority, the Court has said that is a non justiciable question. Problem wasn’t standing, it’s just that that’s not the kind of legal question that a court can answer at all. And so at least within the federal courts, those issues can’t be raised. And this is not a political question decision, this is a standing decision. But, I think the idea is that there are some legal questions that maybe just have to be addressed by the political branches-
Preet Bharara:
Right. I mean, the Court does that.
Trevor Morrison:
… Justice Kavanaugh said in his opinion for the Court, you can take this up with the president. You can make this an issue that matters during political campaigns. You can take it up with the agency, with the FDA. You can take it up with Congress and ask Congress to amend its laws. And this is hardly the only area where a potentially very important legal question that lots of Americans care about can’t straightforwardly be answered in the courts.
You’re right. Whether it turns out that there won’t be anyone who has standing or whether instead someone else who’s somewhat differently situated more immediately affected by FDA’s approval of the use of this drug will be able to bring a case, time will tell on that front. But if no one has standing, this won’t be the only kind of legal question that the courts don’t address.
Preet Bharara:
What about a woman who is harmed by taking Mifepristone, wouldn’t that person have standing?
Trevor Morrison:
Potentially, yes. There could be a question does she have a claim against her doctor? Does she have a claim against FDA for approving it in the first place? Potentially, yes. But if that person were wanting to shut down Mifepristone’s availability altogether, that person would have to show something deficient in FDA’s approval process, not just that she was harmed. But that would kind of merge from the question of whether she’s injured to the kind of relief she was seeking or the kind of claim she was trying to make.
Preet Bharara:
Can I ask a semi cynical question?
Trevor Morrison:
Yeah.
Preet Bharara:
So Dobbs came down two years ago, tremendous amount of backlash politically, culturally, rhetorically in this country. And the Supreme Court is made up of justices who I believe are still people and-
Trevor Morrison:
I believe they’re people too.
Preet Bharara:
You believe they’re people, right? And they’re not immune fully, I believe as people from backlash. And we’re seeing some of the controversies that are swirling around Justice Alito, Justice Thomas and others. Is there any basis to believe that this nine-zero decision on the ground of standing and whatever we say about how much it pushes the ball forward or not, it does preserve an important reproductive right, whether it’s decide on standing or on the merits. Is there a basis to believe that the backlash on Dobbs had anything to do with the unanimity in this case?
Trevor Morrison:
Frankly, I’m skeptical. I’m skeptical about that. It would be one thing if this really was a difficult and close legal question, but to the extent the court is wanting to try and protect itself from follow on criticisms of its Dobbs decision, which is I think what you’re asking about-
Preet Bharara:
Yeah.
Trevor Morrison:
In this case it’s just overdetermined, the standing question is so not close. The reasoning of the federal district judge in this case would deserve a failing grade in any serious constitutional law or federal courts class. And so I was hopeful that the Court would be unanimous because I thought that’s the only really credible way to resolve this question. Are they also being mindful of criticism of the Court post Dobbs? Perhaps. I think it’s hard to say. But I wouldn’t cite this as evidence of that because the legal issue is just so one-sided.
Preet Bharara:
We talked about the hypothetical of a woman allegedly injured by the drug, possibly potentially having standing. What about states and can we expect any other class of persons now understanding the standing threshold to re-bring a case like this, and do you think that would wind its way up to the Supreme Court and so it could be back in the same position in the year or two years or three years?
Trevor Morrison:
I’ve seen some commentary suggesting that there may be states that will try and think about how they can present an injury to the state. Perhaps they’re citing certain hospitals that they’re running or something like that. I think nothing in the decision in this case will stop ideologically motivated lawyers from trying to find potential plaintiffs, be they private individuals or governments. Nothing will stop suitably motivated state attorneys general from trying to think about ways to advance the same kind of challenge to Mifepristone by means of different clients or different parties. So I don’t know that it’s guaranteed that the issue on the merits will come back to the Court, but I think it’s very likely that there will be attempts to press the same merits objection to Mifepristone by means of different parties.
Preet Bharara:
Is there anything notable or interesting about the fact that the majority opinion was written by Justice Kavanaugh?
Trevor Morrison:
So when the court is unanimous like this, the chief justice has the prerogative to assign the writing of a majority opinion to anyone on the Court. He decides to assign it to. Over the course of a term, he tries to make sure that the assignments are relatively even. So each justice writes about the same number of majority opinions as each other one. And so sometimes an assignment decision will be based on who’s been assigned other opinions already. But to return to your earlier question, just sort of the Court being mindful of criticism, et cetera, I wouldn’t be shocked if it occurred to the chief justice to say, We’re going to be unanimous on this standing question and it’s helpful if someone more associated with the right side of the Court writes this unanimous opinion, this sort of cutting in the favor of continued access to Mifepristone, at least for now, than to have one of the dissenters in Dobbs, for example, write the opinion.
Preet Bharara:
I was just wondering, given my recollection of Justice Kavanaugh’s opinion in Dobbs where he looks like he’s thinking about the public reaction and about the slippery slope and trying to say, as a lot of Republican politicians have said, look, Dobbs was Dobbs, Roe was overturned, now this goes back to the states. This does not jeopardize in any way or imperil in any way, birth control, contraception, IVF, any of those things. And it seemed to me that on the conservative wing, Brett Kavanaugh seemed to be a little bit more concerned about that kind of perception than some of the others. Do you think that had anything to do with it?
Trevor Morrison:
So I read his Dobbs opinion exactly as you do that way. So that’s possible that Kavanaugh is especially eager to write an opinion-
Preet Bharara:
Can you raise your hand?
Trevor Morrison:
There’s no rule saying you can’t. At least when I was clerking at the Court, I think that might’ve been viewed as a little bit of poor form. But one way or another, I think the assigning justice frequently does have a sense of who’s most eager to write a particular opinion-
Preet Bharara:
So they’re too polite to lobby? Like I want to write this opinion.
Trevor Morrison:
Oh, I don’t know. I don’t know that they’re too polite to lobby. I think it might just be a question of how to lobby, to do it in the right way. But whether the assignment was to Kavanaugh for that reason or whether the chief knowing where Kavanaugh was in Dobbs thought it would be optically good or whether standing is a doctrine that Justice Kavanaugh has written other opinions about. Some of them have come in for pretty heavy criticism in some quarters, but it’s a doctrine that he’s sort of, even in the relatively few years that he’s been on the Court, made something of a mark on. And so that could be a reason having nothing to do with reproductive justice for why he wanted to write it or why the chief thought it was appropriate to assign it to him.
I’ll also say in Kavanaugh’s opinion, as you will have seen, in talking about the different kinds of theories of injury that these doctors were asserting and knocking each one of them down, he went out of his way at some length to say that even the government concedes that any doctor who has a conscience objection to Mifepristone is never required certainly to prescribe it to any of their patients. But an emergency doctor who is opposed to abortion would never be required to treat someone in an emergency room who has complications from having taken Mifepristone if they on grounds of conscience object to abortion.
And so that was Justice Kavanaugh, if you want, sort of making clear to the other end of the political spectrum that saying that there’s no standing here doesn’t mean that all of a sudden doctors who are opposed to abortion are going to become implicated in providing that kind of medical care.
Preet Bharara:
Can I ask you about one other Supreme Court case that was decided also last Thursday and also by the way, unanimously, maybe not of the same momentousness as the case we’ve been talking about? But, it’s called Vidal v. Elster. Interesting nucleus of facts. It’s about a guy who wanted to trademark a phrase for T-shirts and hats and the phrase was “Trump too small.” I’m not going to go into detail and explain what the double entendre there is. And the Supreme Court basically said, no, you can’t trademark that. Why not?
Trevor Morrison:
So the laws governing trademark the federal law, the Lanham Act says that you can’t trademark something that’s referencing a living person without their consent. And so, this reference to Trump excludes it. The case was not about whether that provision exists in the law, everyone agrees that it does. The case was a First Amendment challenge to that exclusion. And so the person who wanted to trademark this phrase, to register the phrase as a trademark claimed that this was a content-based regulation of speech, which is a problem under the First Amendment and therefore that Congress cannot exclude eligibility for trademark protection on that basis.
And as you say, the court unanimously disagreed. It upheld Congress’s exclusion from trademark eligibility of phrases referencing living persons. The court held that that was not a First Amendment problem. But it wasn’t unanimous in quite the same way that it was in the Mifepristone case we were just talking about because there were multiple opinions with somewhat different rationales. And so although they all agreed on the result, they did not all agree on the reasoning.
Preet Bharara:
Once again, you have unanimous Supreme Court decision that reversed a lower court decision. Is it the case that, I don’t think it is but I want to give you a chance to address, in every instance where the Supreme Court overrules a lower court nine-zero, does that actually mean that the lower court was incompetent in some way and got something obvious very, very wrong? Because there have been nine-zero opinions including in at least one public corruption case that I have strongly disagreed with.
Trevor Morrison:
Yeah, I know which one you’re referring to.
Preet Bharara:
Because I have said before, and I’ll say again, I think on issues of corruption and real world corruption, the Supreme Court, it doesn’t have people who are very experienced with it other than arguably in some quarters people will argue except during their time as justices, but not as legislators and not as prosecutors, et cetera. Explain to a lay person how we should think about nine-zero decisions in that regard.
Trevor Morrison:
Yeah, I think it’s tempting to think, boy, if this Court with people very different views of the law and judicial philosophies, if they can all be unanimous on a question, if in their unanimity they are reversing the decision of the Court or courts below, then that must be a sign of the incompetence of the lower court. I think it’s easy to understand how someone would think that, and sometimes I do think that’s a fair description of what’s going on. As I’ve said, I think the lower court’s standing analysis in the Mifepristone case was truly incompetent. I think it was a lot worse than we should expect from even the least competent members of the federal judiciary.
I don’t think that’s the case in the Lanham Act case, and I don’t think it’s even usually the case when the court is unanimous. Often the court is granting review in a case because it realizes that the doctrine in a particular area needs clarification that only the court can provide or there’s a question that needs to be answered that has just never been answered. Or even more frequently, there is settled precedent in one part of the country’s lower court precedents addressing a question a certain way, and what the court below did was just stick to its precedence, say a particular United States Court of Appeals just following its old precedence. But of course, those precedents don’t govern the Supreme Court, so when the Court takes the case, they might just provide a different answer, maybe agreeing with the approach of a different court of appeal somewhere else in the country.
And so the court can be unanimous as a Supreme Court even though the lower court reached “the right answer” given the state of the law at the time that it answered it. And I don’t see anything in the Lanham Act case, the Trump too small case, to suggest that the lower courts were incompetent in their analysis. Trademark law is not my area of specialty, but I don’t think the court even gave any suggestion in its opinion, let alone the multiple concurring opinions that they thought that there was any kind of total missing of the basic legal landscape and how the lower courts approach the issue.
Preet Bharara:
If you had to say which case you’re sort of most anticipating that is yet undecided, what might it be?
Trevor Morrison:
It’s the question of Trump’s immunity from the federal criminal charges relating to January 6th.
Preet Bharara:
That’s so interesting to me. I thought you might pick that. Is that because it’s the most consequential or it’s the most uncertain? Do you think it’s fairly uncertain how the court will rule on that?
Trevor Morrison:
I think it’s very unlikely that the court will find Trump categorically immune, but I think there are lots of middle positions that the court might take. It’s an issue that is, on the one hand, I think very, very important and remarkably unaddressed really by any Supreme Court precedence in the history of the court. I’m not on tender hooks thinking, oh gee, I worry that the court is about to find Trump categorically immune. But how they find him not immune or how they announce the rule and what work there is to do below is very important. And obviously these cases I think have major ramifications for the country and for how we think about the rule of law and how we think about the relationship between the presidency and the rule of law.
Preet Bharara:
Do you fault the court for taking so long with that opinion because a consequence of delay with respect to the question of immunity necessarily means a delay in the trial of the case?
Trevor Morrison:
Yes, I do. When the court decided to take the case and then to set it for somewhat accelerated oral argument, that is when it granted review in the case, if it was just an ordinary case it probably wouldn’t have heard oral argument until the fall. But it granted review in the case and then said, well, we’ll hear argument at the end of April. I thought that was a really weird and troubling decision to accelerate it a little, but not that much. And then for us to be headed towards the very last days of the term and still be awaiting the court’s decision, I think is also troubling. At this point it is far from clear that there would be time to have a trial before the election no matter what the court says, and I think that’s concerning. I will say, I also wish that these charges had been brought by the government a year before they were, and so some of the overall delay in this case can be laid at the feet of the prosecutors.
Preet Bharara:
Yep. Well, I’ve said that and I think you’re absolutely right. I have a million more questions. There are more cases coming up. Trevor Morrison, Dean Emeritus as it were. Thanks so much for your time. Thanks for spending time with us.
Trevor Morrison:
Thanks for having me.
Preet Bharara:
For more analysis of legal and political issues making the headlines become a member of the CAFE Insider members, get access to exclusive content including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.
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Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.
