The Dangerous Anti-Court Demagoguery of Alexandria Ocasio Cortez and Nancy Mace

Two Congressional Representatives who Should Really Know Better

This past Sunday, Congresswoman Alexandria Ocasio Cortez (D-New York) made a startling call in response to the recent decision of U.S. District Court Judge Matthew Kacsmaryk to revoke FDA approval for the abortion pill, Mifepristone. She suggested that “as part of checks and balances”, the Biden Administration simply ignore the judge’s ruling.¹ But AOC wasn’t alone. In fact, her suggestion became a bipartisan one when Congresswoman Nancy Mace (R-South Carolina) also suggested the same thing.²

Now, don’t get me wrong. The decision by Judge Kacsmaryk is just plain wrong.³ There is no legal basis for revoking the approval of a safe and legal drug from the market that tens of millions of women have relied upon for more than two decades. The parties seeking revocation for FDA approval of Mifepristone lacked even basic standing for their case to be heard on the merits (something that conservatives used to really care about). In an opinion that cited information off of internet forums as evidence, the court decision amounts to public policy making. It is an embarrassment to the federal judiciary and Judge Kacsmaryk ought to be ashamed of himself. Hopefully, he will be quickly reversed by the Court of Appeals.

But both AOC and Nancy Mace must be called out for their dangerous demagoguery against the judicial branch.

Attacking the legitimacy of the judicial branch is wrong. Moreover, suggesting that the White House simply ignore court orders that it disagrees with is an absolutely terrible idea.

Our democratic system of governance relies upon a strong co-equal judicial branch that can make decisions about the Constitution and our laws, even if they are unpopular decisions. This must be because if court orders could be disobeyed, the Constitution and our applicable statutes would become suggestion-only for our elected officials to follow.

When it came to following the constraints of the Constitution, each elected official would decide for themselves what they believed the law to be. And almost certainly, elected officials would interpret the law in a manner to benefit themselves politically. The government could shut down voices of opposition and close off transparency to benefit itself. And we could no longer rely upon elected officials to follow the law even when it contradicted with their public policy preferences.

This is why numerous countries that are theoretically democracies have ceased to function as true democracies - places like Hungary, Turkey, the Phillipines - because elected leaders serve as elected dictators, with the ability to ignore the rule of law and rule as they please.

We’ve seen the difference play out in the United States. One of the saddest and sorriest chapters in American history was when President Andrew Jackson famously declared he would ignore the United States Supreme Court decision protecting the rights of the Cherokee Indians, claiming “[Chief Justice] John Marshall has made his decision, now let him enforce it.”⁴ The result was the infamous Trail of Tears.

Over a century later, a different President, Dwight Eisenhower, the hero who had led our armed forces to victory of democracy over fascism in World War II acted decidedly differently in the case of the Little Rock Nine, where Arkansas state officials continued to defy United State Supreme Court and lower court orders to allow nine black students into previously whites-only Little Rock High School. President Eisenhower intervened, federalizing the national guard and deploying federal troops, to ensure southern white segregationist leaders that they’d meet the same fate as the Nazis did if they continued to resist court orders.

President Eisenhower personally disliked the Supreme Court’s decisions ordering desegregation of public schools. He didn’t think the courts were right to order the black students into Little Rock High School. But he more strongly believed in the rule of law and would enforce it because the rule of law was critical to maintaining the United States as a democracy. Court orders had to be obeyed, not ignored. And where President Jackson failed as a leader, President Eisenhower would not.

Throughout American history, there have been numerous court decisions that were deeply unpopular with the public at the time they were handed down. Including things that today are sacrosanct in American society like legal interracial marriage and integrated schools. Our experience in California with ballot measures proves this point handily. What is popular may not be constitutional. And courts have had to disregard public will to uphold constitutional rights.

In 1964, 67% of California voters approved Proposition 14, which wrote legal racial housing discrimination into the state constitution. Yet, the courts struck it down as unconstitutional.⁵ Yes, it’s what the people wanted. But that didn’t matter. It violated the federal constitution.

In 1994, 58% of California voters approved Proposition 187, which took away rights and basic healthcare needs from undocumented immigrants. It too was struck down as unconstitutional.⁶

In 2010, when Proposition 8 was struck down by a federal court as unconstitutional, every state electorate that had voted on the issue had approved same sex marriage bans.⁷ Voters in Arizona, Alabama, Alaska, Arkansas, California (twice), Colorado, Florida, Idaho, Georgia, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin all voted for bans on same-sex marriage. Ultimately, the act of the Supreme Court striking down these bans represented a rejection of the express wishes of the electorate.

AOC might argue that this is different because the decision by Judge Kacsmaryk is wrong. Therefore, it can be ignored.

I agree that the decision is wrong. But who decides when a court decision is “wrong”? Or at least wrong enough that it should be ignored?

Lots of decisions have been labeled as “wrong”. For example, in 1997 when the California Supreme Court struck down the state’s parental consent law for minors seeking abortion as a violation of the California Constitution, former California Supreme Court Justice William Clark publicly labeled the Court’s ruling as “simply wrong”.⁸

Does AOC agree with him that allowing minors to obtain a safe and legal abortion without consent from a parent is simply wrong? Would she have agreed if those who felt the decision was simply wrong called for California government to simply ignore the Court to deny young women the right to an abortion?

AOC would likely claim that these are morally different situations. Those decisions were properly researched and reasoned, while Judge Kacsmaryk’s decision wasn’t. Those court cases were about protecting the rights of minorities while Judge Kacsmaryk’s decision takes away the right of women. (In fact, I foresee a lot of anger directed at me over even making the comparison to these cases).

But how does one distinguish one unpopular court decision from another? And given that whether one considers a court decision “wrong” is ultimately a subjective conclusion, how does one decide which wrong opinions should be adhered to and which should be ignored?

In countless instances, courts rule in ways that people will strongly disagree with. But those decisions will often be those that protect the rights of individuals. Generally, those of us on the left cheer these decisions. Among other things, the Court has protected the right of students to not pledge allegiance to the flag, the right of people to burn the American flag, and the right to belong to political organizations that advocate against capitalism.⁹

When the outspoken Harlem Congressman Adam Clayton Powell (D-New York) was kicked out of Congress for reasons that most considered a racist double standard, the United States Supreme Court famously ordered him reinstated.¹⁰

As an unabashed feminist socialist from the Bronx who hails from a proud tradition of New York City Congressmembers who openly identified as socialist (Meyer London, Vito Marcantonio), a progressive icon like AOC should know better. We cannot claim the protection of the courts in some instances, only to then demand that courts be ignored when they don’t reach conclusions that we approve of. We can’t base our decisions on whether to accept court decisions or whether we personally like them. Conservatives could do the very same thing. The prospect is simply untenable.

In the case of Nancy Mace, my initial thought was different. A conservative white elected official from the deep south suggesting that a federal court order be ignored? It wouldn’t exactly be the first time in American history that’s occurred. Definitely not in the case of elected officials from South Carolina. In fact, it’s far more surprising that Mace is a pro-choice Republican Congressmember, a true rarity.

But then it struck me, not only should I hold a conservative Republican white woman from the deep south to the same high standard that I hold a progressive Democratic Puerto Rican woman from the Bronx, Congresswoman Mace should also know better.

For those who don’t know, Nancy Mace is the first woman to graduate from the elite United States military academy, the Citadel.¹¹ The Citadel had previously been restricted only to men. The military previously believed that women were not capable of attending such an elite institution and could not compete with the men. So, how did Mace attend? Did she personally persuade them to change their minds and enter the 20th century?

Not exactly.

In 1996, the United States Supreme Court held that fellow elite United States military academy, Virginia Military Institute, could not continue to prohibit women from attending as a violation of the Fourteenth Amendment Equal Protection Clause.¹² The Citadel followed the ruling and desegregated its institution as well. This allowed Mace, who was clearly qualified for admittance to the academy, to attend and ultimately graduate with distinction.¹³

Did military leadership disagree with the decision? Almost certainly not. If they agreed and thought women should attend, they would not have fought a court battle to keep women from attending. There would have been no need. And women probably would have graduated from the Citadel long before Mace did (who graduated in 1999).

Whatever the military may have thought, they had to follow the law, obey a court’s order, and allow Mace to attend the school. If the military and federal government were free to ignore court orders they deemed wrongly decided, she likely would never have been able to attend the Citadel. A key part of her life and political career would never have occurred.

Judge Kacsmaryk’s ruling is wrong. But so too are the suggestions that the decision simply be ignored. Our judiciary is key to our system of the rule of law. And lawmakers, especially Congresswoman Alexandria Ocasio-Cortez and Congresswoman Nancy Mace should know better than to suggest otherwise.

1. https://twitter.com/Acyn/status/1644512080828026882

2. https://www.politico.com/news/2023/04/10/texas-nancy-mace-fda-abortion-pill-ruling-00091184

3. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

4. https://billofrightsinstitute.org/activities/a-deep-stain-on-the-american-character-john-marshall-and-justice-for-native-americans-handout-a-narrative