Styled legal conservatives have been saying with a smirk that judges absolutely shouldn’t make laws. They would proudly brandish their pocket-sized Constitutions, waving them around like magic wands while explaining that we’ve got a tidy little system of government with three branches. Elected legislators make the laws, elected presidents sign and execute them. And unelected judges? Oh, they’re just supposed to be as meek as a crossing guard in a village where even the horses have retired.
Judges definitely don’t make laws. No siree. They just read them very carefully, maybe even mouthing the words for good measure, waiting for the ghost of the Founding Fathers to whisper their divine intentions into their ears.
Well, at least that’s the bedtime story they’ve been telling us. Turns out, “alternative truth” is a kinder way of putting it when you take a gander at what’s happening in Amarillo, Texas.
Ah, Amarillo: the land of conservative dancing puppeteers and their handpicked judicial maestro, Kacsmaryk. Formerly an attorney for the First Liberty Institute (a right-wing Christian law firm), Kacsmaryk has a penchant for Roman Catholic doctrine. In fact, he’s been toying with the idea of molding US law after the church’s views on marriage, family, and sexuality. Unfortunately, the Founding Fathers left him hanging on that one.
Amarillo’s secret sauce for these so-called conservatives is that it has just one federal judge at the ready. So any lawsuit filed there will automatically land on the lap of—you guessed it—Kacsmaryk.
The renegade cowboy judge decided to flex his lawmaking muscles recently when he casually tossed aside his respect for the other branches of government to challenge the approval of mifepristone. This medicine, used to induce miscarriages early in pregnancy and part of the most common abortion procedure in the US, was approved 20 years ago.
Now, the anti-abortion brigade would prefer mifepristone to stay out of American hands. But what happened to solving these issues through the legislative process? After all, elected lawmakers handed the responsibility for medicine approval to the Food and Drug Administration (FDA). The FDA, in turn, gave mifepristone a thumbs-up after reviewing it just as they would any other drug.
But when Congress didn’t hand them what they wanted on a silver platter, the Constitution-waving conservatives suddenly needed a handy wet wipe for their sticky fingers. So they moseyed on over to Amarillo for some good old-fashioned “judge shopping.” Judge shopping might sound like a fun Saturday activity, but it’s made citizens doubt the rule of law.
In an unprecedented ruling on March 15, Kacsmaryk was told by the anti-abortion plaintiff that no judge had ever undone the FDA’s approval of a prescription drug before. Unfazed, our Wild West judge gleefully decided to be the first.
The Justice Department has been left with no choice but to appeal the ruling, thanks to the bulldozing of both executive and legislative authority. However, now that Kacsmaryk has stomped all over the supposed virtues of conservative judges by trampling the Founders’ intentions and wallowing in self-legislation, his fellow right-leaning legal defenders have found themselves faced with a serious question: To put up, or to shut up?
