“Was OxyContin in fact “central” to the upward trend in opioid-related deaths? Estimates from the National Household Survey on Drug Abuse (now the National Survey on Drug Use and Health) indicate that nonmedical use of prescription pain relievers rose for 11 consecutive years before OxyContin was introduced, and then continued to rise. Even during the period highlighted by Gorsuch, OxyContin never accounted for a very large share of the prescription analgesic market.
Defending itself against all of those lawsuits, Purdue presented Drug Enforcement Administration data indicating that OxyContin accounted for just 3.3 percent of pain pills sold in the United States from 2006 through 2012. After adjusting for potency, ProPublica calculated that the product’s “real” share of the market was more like 16 percent.
ProPublica’s analysis is questionable, assuming the concern is how many opportunities nonmedical users have to get their hands on prescription opioids. But either way, the vast majority of pain reliever prescriptions involved products other than OxyContin, most commonly hydrocodone pills such as Vicodin and oxycodone pills such as Percocet. Those latter two types of products also figured prominently in the pain relievers consumed by nonmedical users, accounting for 75 percent of the total in 2018, according to the federal government’s survey data. OxyContin, by comparison, accounted for 11 percent of nonmedical use that year.”
…
“According to a 2007 American Journal of Psychiatry study of OxyContin users admitted to drug treatment programs, 78 percent “reported that the drug had not been prescribed to them for any medical reason.”
Since Gorsuch and Kavanaugh both fault Purdue for contributing to opioid-related deaths by misrepresenting OxyContin as abuse-resistant, it is instructive to consider what happened after the company tried to make good on that promise by reformulating the drug. The new version, introduced in 2010, was much harder to crush for snorting or injection. The idea was to deter nonmedical use, and the hope was that the reformulation would reduce addiction and opioid-related deaths. That is not how things worked out.
The reformulation of OxyContin was instead associated with an increase in deaths involving illicit opioids and, ultimately, an overall increase in fatal drug overdoses. Researchers identified that pattern by looking at the relationship between pre-2010 rates of OxyContin misuse, as measured by surveys, and subsequent overdose trends. They found that death rates rose fastest in states where reformulation would have had the biggest impact.
The root cause of that perverse effect was the substitution that occurred after the old version of OxyContin was retired. Nonmedical users turned to black-market alternatives that were more dangerous because their potency was highly variable and unpredictable—a hazard that was compounded by the emergence of illicit fentanyl as a heroin booster and substitute. Nowadays illicit fentanyl accounts for around 90 percent of opioid-related deaths, which have reached record levels in recent years.
Interventions like the reformulation of OxyContin and the broader crackdown on opioid prescriptions not only failed to turn the tide. They contributed to the upward trend that Gorsuch blames on OxyContin. The story that he and Kavanaugh credulously echo turned out to be deadly as well as misleading.”
“In her ruling, Cannon argued that because Smith had not been appointed a special counsel by the president and confirmed by the Senate, his appointment violated the Constitution’s Appointments Clause.
Smith, a longtime government prosecutor, was made a Special Counsel by US Attorney General Merrick Garland in November 2022 to oversee the classified documents case. Trump pleaded not guilty to all 37 counts in the indictment Smith and his team eventually filed, including willful retention of national defense information under the Espionage Act and one count of false statements and representations.
Smith was also appointed as special counsel in the investigation into the January 6, 2021, insurrection at the US Capitol. Smith later charged Trump with four counts, including conspiracy to defraud the United States. That case is ongoing, but after the US Supreme Court ruled earlier this month that the president has broad immunity from criminal prosecution for official acts performed in office, it’s an open question whether he can be prosecuted for his actions related to the insurrection.
Cannon’s ruling, which relies on a stringent reading of the Constitution and represents a brazen break with precedent, has come under heavy criticism from legal scholars. Under her ruling, the appointment of prior special counsels would have also come into question, from Archibald Cox, who investigated the Watergate scandal that led to President Richard Nixon’s resignation, to Robert Mueller, who investigated Russian interference in the 2016 election.
“It’s breathtaking audacity for a trial judge who has clearly shown that she wants to delay and, if possible, get rid of this case,” said Jed Shugerman, a Fordham Law professor and the author of The People’s Courts.”
“the Supreme Court’s decision centered around Joseph Fischer, a former Pennsylvania police officer who was charged with several offenses related to his conduct at the Capitol riot. According to the government, that lawlessness included, among other things, that he “forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol.”
But prosecutors tacked on another charge using the Sarbanes-Oxley Act of 2002, which criminalizes “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or, per the following provision, “otherwise obstruct[ing], influenc[ing], or imped[ing] any official proceeding.” Those convicted face up to 20 years in prison.
Fischer challenged that charge, arguing that the statute as written requires the alleged obstruction in question be tied to the impairment of records, documents, or objects, which would not apply to him. The federal judge who initially evaluated Fischer’s petition sided with him; a divided U.S. Court of Appeals for the D.C. Circuit reversed that; and the Supreme Court reversed the reversal.”
…
“”Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis,” she writes. “We recognize this intuitive fact—that there is a certain category of conduct the rule is designed to prohibit—because we recognize, albeit implicitly, that the drafters of this rule have included these particular examples for a reason. We understand that, given the preceding list of examples, this rule was adopted with a clear intent concerning its scope.”
To buttress her case, Jackson looks to the history of the statute, which was enacted in response to the revelation that Arthur Andersen LLP, auditor for the disgraced energy corporation Enron, had torched potentially incriminating documents. “There is no indication whatsoever that Congress intended to create a sweeping, all-purpose obstruction statute,” Jackson concludes.
In response, Attorney General Merrick Garland said in a statement that he is “disappointed by today’s decision, which limits an important federal statute that the Department has sought to use to ensure that those most responsible for that attack face appropriate consequences.” Fortunately for him, he is still free to prosecute people for violating the laws that Congress enacted, which isn’t an unfair limitation.”
“Amid mounting pressure for Supreme Court reform, Congress has before it one relatively straightforward option: enshrine Scalia’s “standing test” and legislate the basic requirements for who can sue over major issues of national importance.
Currently, the law concerning standing is governed by a series of Supreme Court cases that sort out which plaintiffs can bring cases in federal court in the first place. If it’s the wrong plaintiff, the case is thrown out. It also keeps federal judges out of the business of legislating under the pretense of legitimate litigation.
But so far, there is no general “standing” statute. The court has set its own standards for which cases it and lower courts can hear, pursuant to its reading of the Constitution. Congress should change that and set down its own marker. Although the current right-wing justices could decide to strike down standing legislation as impinging on their constitutional prerogatives, codification of standing law would send an important message that Congress is willing to impose reasonable checks and balances on the justices.
Standing comes from Article III of the Constitution, which gives federal judges the job description of deciding “cases.” The case law around standing amounts to the court’s working definition of the word “case”: At its core, it requires that plaintiffs have an injury that’s unique to them and not shared by the general population. Standing is central to the separation of powers because judges are supposed to only consider disputes between discrete parties that occurred in the past.
To grasp the distinction, imagine a case in which a city miscalculates the property tax liability owed by a homeowner for a single residence. She sues the government to get that particular financial injury redressed. Resolving that dispute is a job for the courts because it’s between two discrete parties and involves retroactive relief.
Legislatures, by contrast, make rules that are future-oriented and apply to the general population. If the homeowner wants the general property tax rate lowered, she must push legislators for action, not the courts. Standing holds judges within their constitutional lane by keeping sweeping policy disputes impacting the broader public out of courtrooms.
The Constitution does not define the word “case,” however, so the Supreme Court has had to fill in the blanks over the years by requiring, first and foremost, a concrete “injury” to make something a case. In cases between private parties, the injury is usually obvious — the defendant broke a contract or committed a tort that left the plaintiff worse off than they were before. In cases against the government, if the plaintiff is a corporation, it’s easy to show that a regulation or legislation causes harm to their business. But if a regular citizen wants the government to take action that affects the public — such as enforcing clean air standards or making mifepristone unavailable across the country — it’s harder to show an injury that’s particularized, or special, to the actual plaintiff bringing the suit.
For those cases, the court has long made clear that taxpayers cannot sue merely to vindicate their alleged “injury” in having their tax dollars misused by the government. That would allow angry taxpayers to turn the judiciary into the ultimate boss of the other two branches of government. Beyond that, what suffices as an injury can be hard to pin down, with the court adding a slew of adjectives to the test, requiring that an injury be imminent and not speculative or hypothetical, for example.
The governing standard, created by the Supreme Court over decades and refined at Scalia’s hand, requires three things: 1) that the plaintiff has an injury that is unique to them, 2) that the defendant caused it and 3) that if the court rules in their favor, that injury will be fixed. The aim is to find the equivalent of a “broken arm” — versus a generic policy gripe — that courts can remedy with an order.”
…
“The fact that the court can pick and choose which cases in which to recognize standing law, and which they prefer to overlook it, cries out for congressional intervention.”
“Alliance is fundamentally a case about judge-shopping, a practice that sometimes allows litigants to choose which judge will hear their lawsuit. In this case, the plaintiffs — doctors who oppose abortion and organizations representing those doctors — selected Matthew Kacsmaryk, a longtime advocate for the Christian Right who then-President Donald Trump placed on the federal bench — to be their judge.
The plaintiffs were allowed to choose their own judge because Kacsmaryk’s Texas-based court assigns all lawsuits filed in Amarillo, Texas, to him. So all that these plaintiffs had to do to get Kacsmaryk to hear their case was file their suit in his home city.
Kacsmaryk’s opinion was, well, exactly what you would expect from a judge who is determined to fight abortion no matter what the law says. His 2023 decision struck down the FDA’s decision to approve the drug mifepristone in 2000, despite a six-year statute of limitations on such claims. He relied on discredited studies that have since been retracted by their publisher. And he relied on testimony from a “doctor” who isn’t actually a physician at all.
Then his decision was appealed to the United States Court of Appeals for the Fifth Circuit, a court dominated by MAGA Republicans, which narrowed Kacsmaryk’s decision but still effectively banned the drug. It was this decision by the Fifth Circuit that a unanimous Supreme Court reversed on Thursday.”