Of the Supreme Court opinions issued today, the one that will draw the greatest public attention is Food and Drug Administration v. Alliance for Hippocratic Medicine, unanimously holding that the pro-life organizational plaintiffs in the underlying cases lacked Article III standing to challenge the Food and Drug Administration’s (FDA’s) actions regarding the regulation of mifepristone.

Used in conjunction with another medicine, mifepristone, also known as RU 486, is taken to end a pregnancy within 70 days of conception. The opinion also resolved the companion case of Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine.

What might surprise some observers is that not only was the decision unanimous but the opinion was written by Justice Kavanaugh, a Catholic jurisprudential conservative (Thomas, J., wrote an additional concurring opinion). However, the decision is not at all about reproductive rights, though its outcome surely affects—indeed upholds—them. The reason Justice Kavanaugh wrote the opinion and could obtain the concurrence of all the other Justices is that the gravamen of the case is standing, a constitutional matter that has been an important issue for the Court, particularly for the conservatives aligned here with the expected views of the liberals.

In blocking the ability of the plaintiffs to attack the FDA’s relaxed regulation of mifepristone, the Court rejected a series of arguments concerning alleged downstream injuries to the consciences of certain physicians, potential downstream economic injuries, and related alleged trade association injury. In doing so, the Court neatly sidestepped arguments concerning the FDA’s compliance with its governing statute and any factual matter related to the approval process, use, and effect of the drug at issue.

To those of us who deal with standing issues regularly in a variety of areas of the law, the Court’s ultimate point is of particular interest. One of the arguments made by the respondents was that the Supreme Court’s denial of standing to them would result in no one having standing to challenge the regulatory decisions of the FDA with respect to mifepristone. However, as Justice Kavanaugh notes, the Supreme Court has long rejected that kind of argument. Instead, while the path to the courts might be unavailable, matters like this can be addressed by the democratic processes of the political branches.

A final note: The unanimous Court’s decision on the procedural ground of standing in such a controversial case suggests an intention to avoid wading into the social and political arena involving reproductive rights. Can one therefore expect an analogous result in the presidential immunity case of Trump v. United States, where a substantial majority of the Court might hold simply that the defeated ex-president does not enjoy complete immunity from criminal prosecution, either approving the Special Counsel’s going forward with a case that likely cannot conclude before the upcoming presidential election, or even just remanding the case for the trial court’s determination in the first instance the charges that necessarily survive in view of a Supreme Court holding that, for example, election fraud might not be a protected activity? Such a result might convey the message that the Court wants to avoid repeating a Bush v. Gore-type scenario, and leave the matter to the public’s access to political processes, as is the case today. That hypothetical soon will be answered.

In Starbucks Corp. v. McKinney, the Court decided a case of particular interest to the labor lawyers who follow this blog, striking a blow to the National Labor Relations Board’s (NLRB’s) attempt to be subject to a more lenient standard than that burdening other litigants in seeking preliminary injunctive relief. In an opinion written by Justice Thomas and joined by seven other Justices (the ninth Justice, Jackson, J., concurred and dissented in parts), the Court rejected a “reasonable harm” standard and endorsed the “irreparable injury” standard that generally applies to evaluating requests for injunctive relief. The case concerned the application of the National Labor Relations Act section 10(j), dealing with emergency injunctions. Seeking what several commentators have described as “Most Favored Litigant” status, the NLRB had argued that it should be empowered easily to get reinstatement orders pending the ultimate outcome of administrative proceedings in order to prevent situations where the ultimate outcome of the case would come too late to remedy the harm.

Reversing the Sixth Circuit’s ruling that upheld an order requiring Starbucks to reinstate a pro-union group known as the “Memphis Seven,” the Supreme Court held that NLRB requests for preliminary injunctive relief under section 10(j) should be reviewed under the same criteria as applied in any other preliminary injunction requests made in private litigation.

Especially with reference to the element of irreparable injury, the NLRB’s rejected argument for a more lenient standard than that applied to other litigants is noteworthy in view of the opinion of many practitioners and academics that the NLRB’s now-rejected stance has been a significant weapon in preventing companies from suppressing union organizing activities. Those representing the interests of employers will take great comfort in the fact that the entire Supreme Court has concluded that the NLRB is not entitled to special status with respect to judicial relief.

In a third unanimous opinion of the day, the Court’s opinion in Vidal v. Elster gives proof to the point that “Trump Too Small” is not a big enough deal to warrant trademark protection. This is another technical opinion in a case entirely divorced from matters of social import and controversy that Justice Thomas, who wrote the opinion, is frequently drawn to.

Here, the Court held that the U.S. Patent and Trademark Office correctly concluded that the phrase, which originated in a presidential primary debate reference to the size of Donald Trump’s hands, could not be awarded a registered trademark in view of the law’s prohibiting the use of a living person’s name without his or her consent.

As Justice Thomas wrote, rejecting Steve Elster’s claim that his First Amendment rights were violated, the so-called “names clause” of the Lanham Act did not discriminate against any viewpoint, as it applies to anyone, irrespective of particular views. Moreover, Elster is free to use the phrase, as he had intended, on T-shirts and hats, only without trademark protection. The Supreme Court reversed the Federal Circuit, which had held that Elster’s right to criticize a public figure had been violated. However, the fact that he remains able to use the phrase on the products he wishes to sell to the public would seem to render that point untenable, notwithstanding that others could make commercial use of the same phrase.

That’s it for today, but there is plenty more on the horizon as the term winds down.

Back to Commercial Litigation Update Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Commercial Litigation Update posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.