The circus animals’ desertion

This is what we’re up against:

These people are completely hopeless; they’ll still be babbling about the importance of institutional guardrails when they’re being loaded into cattle cars.

Speaking of which, there are dozens of federal court vacancies going unfilled because Dick Durbin decided that the Senate judiciary committee should keep adhering to the blue slip rule. The blue slip rule is completely indefensible on the merits, even without regard to the fact that the Republicans don’t adhere to it when they’re in power. But the latter fact makes Durbin’s position a representative of the kind of intellectual rot among centrist and center-left Democrats, who simply refuse to accept that the Republican party has been taken over by theocratic fascists.

In regard to that, I’ve read Judge Kacsmaryk’s opinion. It’s not law and it doesn’t even try to be. Highlights include:

(1) If you have a medical license, you have standing to file a lawsuit challenging the FDA’s approval of any drug for any reason at any time.

(2) Complaining about a regulatory ruling tolls the statute of limitations, so you can file a lawsuit 17 years after the statute would otherwise bar your suit.

(3) Completely baseless ranting lies from theocratic fascists about imaginary health risks should be treated as more valid than actual medical science.

People are debating right now whether the Biden administration should simply ignore the ruling altogether — this is the position taken by Sen. Wyden and Rep. Ocasio Cortez, although I think there’s basically no chance that happens (see guardrails and cattle cars, supra). As to the merits, it’s important to recognize that the doctrine of judicial supremacy invented by John Marshall in Marbury v. Madison is simply a procedural convenience: it’s not some metaphysical insight about The True Nature of the Law. A little thought experiment should make this clear: If a court issues a lawless ruling, is the executive to which that ruling applies also breaking the law when it follows the lawless course of action? Unless you believe federal courts have some mystical power to create laws themselves, then obviously the answer is yes: by following the lawless ruling the government is itself in some important sense breaking the law. Marshall’s claim, although he labors very mightily to obscure this via a series of circular arguments, is in effect that requiring the government to execute the lawless act of the court is the lesser of two evils.

Now the thing to notice about this is that it’s a purely prudential and pragmatic argument. That means that whether it will be true or not will always be strictly context-dependent.

I suggest the worshipers of judicial supremacy start thinking a little harder about the exact contours of our present context before dismissing criticism of the practical application of that doctrine, right here right now, with insouciant references to Marshall’s magnificent obscurantism.