Supreme Court Has ‘Tension’ Over Key Issue, Ex-Clarence Thomas Clerk Says

The U.S. Supreme Court justices hold differing views over the ability of lower courts to issue nationwide decisions, Josh Divine, a former clerk to Justice Clarence Thomas and the current Missouri solicitor general said.
Divine participated in a recent panel in Denver where legal experts discussed the most recent Supreme Court term, which wrapped up earlier this summer after the court rushed to wrap up several high-profile rulings, such as those regarding presidential immunity and abortion access, before their term ended. Justices will reconvene for their upcoming term in October. In the panel discussion, experts evaluated the “blockbuster-plus” session that recently finished.
However, among the landmark rulings is reportedly a source of “tension” among justices over how lower courts’ abilities to issue nationwide rulings, Divine said, according to a report by Colorado Politics.
A recent example is in April 2023, when U.S. District Judge Matthew Kacsmaryk, a Donald Trump appointee in Texas, ruled in favor of a November 2022 lawsuit filed by the anti-abortion organization Alliance for Hippocratic Medicine against the U.S. Food and Drug Administration (FDA).
The group argued that the FDA “never” had the authority to approve the use of mifepristone—one of the two drugs used in abortion medication—and that its approval, given over two decades ago, should now be rescinded. However, on the same day, U.S. District Judge Thomas O. Rice, a Barack Obama appointee in Washington, ruled the opposite way, preserving access to the drug.
In June, Supreme Court justices ruled unanimously to protect mifepristone from federal restrictions, overpowering Kacsmaryk’s ruling. Although the justices were united in the ruling, Divine said that there’s “tension” among the justices regarding the ability of lower courts to issue national rulings.
“I don’t know if or when it will be resolved soon,” he said, according to the Colorado Politics report. “There’s definitely a lot of tension, a lot of differences among the justices, on this issue.”
Newsweek has reached out to the Supreme Court by email for comment.
The alleged tension among justices comes not even a month after President Joe Biden unveiled his plan to reform the Supreme Court at the end of July. Biden delivered remarks on his plan in the first public engagement since he forfeited his election campaign and endorsed Vice President Kamala Harris as the Democratic nominee instead.
During the speech, the president expressed his concerns regarding recent decisions by the conservative-leaning court, particularly regarding presidential immunity. He also spoke in favor of an 18-year term limit for justices to prevent “an extreme court.”