SCOTUS Sophistry

I am putting together our next Current Events session here at MC and I decided it was good to look at decisions made by SCOTUS in the past year. Not because they are good decisions (they aren’t) but because they illustrate how SCOTUS, now with a Trump-created conservative majority, is taking it upon themselves to be the experts in areas of science and medicine. They are doing this, of course, because of ideology, not because they suddenly got a Ph.D. or an M.D.

In 2007, SCOTUS ruled that the EPA had authority to regulate carbon dioxide under the Clean Air Act. It was not until 2015, however, that the EPA directed states to develop a plan to reduce carbon dioxide emissions from power plants. Several states (notably West Virginia) and the coal industry immediately filed suit. In 2016, SCOTUS then blocked the Clean Power Plan which was then (surprise!) scrapped by the Trump administration. In their decision of 30 June 2022, SCOTUS gave the reason that the so-called “major questions doctrine” required Congress to expressly give authority to the EPA when “transformative changes”, i.e. expensive changes to industry, were involved. The existential crisis known as climate change, which involves scientific expertise to fathom, was thereby jettisoned by a conservative SCOTUS in thrall to right-wing ideology. Tell your grandchildren where they should look when they want to understand the world in 2050.

Then there is mifepristone. After shopping for a right-wing judge, a group called the Alliance for Hippocratic Medicine (a consortium of anti-abortion doctors) sued in District Court in Amarillo, Texas to have mifepristone’s FDA approval (which dates to 2002) rescinded. The District judge, a Trump appointee, found for them based on their hypothetical fear of having to intervene if a mifepristone induced abortion went badly. On appeal, the Fifth Circuit Court (a panel of three judges, two appointed by Trump and one by George W. Bush), lambasted the FDA and indicated they feel no compunctions about overruling the FDA approval process. SCOTUS, probably remembering the scouring they continue to take about the Dobbs ruling overturning Roe v Wade, punted and sent the case back to the Fifth Circuit, but no doubt this hot potato will end back up on their docket at some point. The case has many ramifications beyond mifepristone. The FDA has had the responsibility and authority for many decades to review drugs and oversee their safety once they reach the market. Now conservative judges, on the flimsiest of grounds, are saying “Wait! Our authority and expertise here is superior!”. The reality is that this sort of game-playing could impact the regulatory authority of the FDA for all drugs. But isn’t that exactly what the conservatives have sought for years?

Most recently, in the Sackett v. EPA case, SCOTUS essentially gutted a major part of the Clean Water Act of 1972 (cripes, I was a medical student then). While all 9 Justices agreed that the plaintiffs were correct that they could build on their lot 300 feet from a lake, 5 of the conservative justices (Alito, Roberts, Thomas, Gorsuch, and Barrett) took an opportunity to further gut the regulatory authority of the FDA. By a 5-4 decision, they effectively removed protections for wetlands throughout the United States that in aggregate are the size of the state of California. Why did they do this? Because of a quibble over the definitions of adjoining and adjacent.  Of interest, Justice Kavanaugh joined the three liberals on the Court in what would have been a decision for the plaintiffs yet would have preserved the protections that Alito et al. torpedoed. 

Tom Nichols’ book The Death of Expertise: The Campaign Against Established Knowledge and Why It Matters addresses at length the idea expressed by Isaac Asimov years ago: “There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.” Nichols believes this is worsening and is a threat to our democracy. I agree and when SCOTUS is part of the ignorance, I believe we are in far worse shape than ever. The Roberts Court seems to be ground zero for sophistry, intent on ramming its ideology onto America no matter the cost.