Perspectives: ‘Strange bedfellows’ in recent high court cases

Four high-profile cases involving abortion, gun rights, workplace discrimination and environmental protection, including one from Minnesota, shared an unusual commonality this spring in the recently concluded 2024-25 term of the U.S. Supreme Court. The four reflect the observation that law, like politics, can make “strange bedfellows.”

One of them concerned the Trump administration adopting the stance of the Biden administration in opposing a challenge to the availability of the mifepristone abortion pill. Another involved Minnesota Attorney General Keith Ellison, a strong advocate for gun safety measures, sharing the same position on a firearms regulation case as the National Rifle Association (NRA), the nation’s largest and pre-eminent advocate for the constitutionally protected Second Amendment right to keep and bear arms.

Yet a third concerns “reverse” discrimination in the workplace, and a fourth pertained to vehicle emissions.

These four unusual juxtapositions warrant examination and explanation in the continuing politicization of litigation.

Abortion anomaly

The abortion anomaly — the Trump administration embracing the position of its predecessor to fend off a challenge to mifepristone, the popular abortion-inducing pill is at the center of the issue of reproductive rights claims.

The unusual alignment occurred in Missouri v. FDA, No. 2-22-cv-00223 (N.D. Tex. 2025), in which attorneys general of three red states — Missouri, Kansas and Idaho — had their challenge rebuffed on grounds that the claims have “no connection” to the state where it is brought, divesting the court of jurisdiction to hear the dispute, which the U.S. Supreme Court had dismissed last year due to a lack of standing by the anti-abortion group of physicians who brought a predecessor case entitled FDA v. Alliance for Hippocratic Medicine, 602 US. 367 (2024).

The outcome of the mifepristone litigation may not have much effect here in Minnesota, where nearly unrestricted reproductive rights exist under the state constitution and statute. Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995); Minn. Stat. § 145.409, Personal Reproductive Options Act (PRO Act). But the Trump administration’s legal machinations in the case could have significant impact here and elsewhere for other reasons.

The Trump administration has been ambivalent regarding availability of the drug, which most of its base opposes. But there may be an ulterior motive underlying its adhering to the Biden era position. The jurisdictional rationale was addressed to the ultra-conservative, avowed anti-abortion judge Matthew Kaczmarek, who is overseeing the case and is likely to find its way to the conservative 5th U.S. Circuit Court of Appeals. A ruling rejecting jurisdiction, as advocated by both the Biden and now Trump administrations could form a useful precedent for the current administration to fend off challenges by blue states or progressive organizations or individuals in jurisdictions hospitable to regulations imposed by various agencies, presidential executive order and even statutes enacted in red states or Congress.

That underlying desire to block litigation challenges to current and future administrative and legislative actions probably overshadows the stated legal technicality asserted by the Trump administration or political grounds surmised by some commentators for echoing the Biden era position in the pill case.

More matters

But, wait, there’s more.

The maneuvering in the mifepristone case is only one of several more matters being deployed or under consideration by anti-abortion forces that are a long way from the bed co-occupied temporarily by the Trump administration with its predecessor in the Mifepristone litigation.

One of them is legislation proposed by Republican Sen. Josh Hawley of Missouri, one of the three mifepristone-objecting states, to restrict the abortion medication. While that proposition stands little chance of passage, a more likely vehicle is the revocation or limitation by a Trump-dominated FDA of its prior approval of the pharmaceutical.

Another method is the pursuit of criminal lawsuits in some red states where abortion is effectively barred or substantially restricted against women who leave the state to seek them or against out-of-state medical providers who treat them or send reproductive-related items to them.

The administration also is contemplating a nuclear option, urged on by anti-abortion forces like Hawley and others. It’s the resuscitation of a dormant 1873 federal criminal law, the Comstock Act, 18 U.S.C. §552, 1462, 19 U.S.C. § 1305, and 39 U.S.C. § 3001, which prohibits use of the mail or other interstate commerce like the internet for distribution of abortion medication, devices to aid in the procedure, or information about it, a measure introduced by Minnesota’s William Windom of Winona, a U.S. representative, later senator, and subsequently secretary of the Treasury in the Benjamin Harrison administration. While First Amendment concerns, among others, hover over the activation of this so-called “zombie” law, that inhibition has not stood in the way of a bevy of other Trump administration anti-abortion initiatives.

“Misery acquaints a man with strange bedfellows.”
William Shakespeare, The Tempest (1611)

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“Politics makes strange bedfellows.”
French Marxist politician Jules Guesde

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“Politics doesn’t make strange bedfellows — marriage does.”
Actor Groucho Marx (1890-1977)

Firearm friends

Another strange alignment occurred in an appeal of a firearms case from Minnesota brought by Attorney General Ellison of a ruling by the 8th Circuit late last year, upholding a decision by U.S. District Court Judge Kathleen Menendez invalidating a state law barring issuance of gun permits to individuals under 21 years old in Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2024).

The lower court ruling was affirmed on appeal, following the precedent of the Supreme Court in New York State Rifle & Pistol Association v. Bruen, _597 U.S. 1 (2022), which looked to “historical traditions” in deciding Second Amendment cases, a standard that Judge Menendez somewhat reluctantly followed in striking down the state statute, and the 8th Circuit concurred.

That’s when both the progressive AG and the National Rifle Association (NRA) concurred. Ellison sought certiorari, and the NRA filed amicus friend of the court brief beseeching the High Court to exercise its discretion and hear the appeal of the 8th Circuit decision that the NRA applauded.

Both sides had different goals in their common desire for high court review. Ellison and gun safety advocates wanted to overturn the ruling and clear the path for Minnesota and 13 other states and the District of Columbia to impose their firearm age restriction laws. The NRA, the nation’s premiere Second Amendment advocacy organization, desired the justices to hear the case and uphold the ruling in order to achieve a uniform nationwide ban on these restrictions.

But, alas, it was not to be, as the hopes of both strange bedfellows were dashed when the Supreme Court declined to review the cases by denying to grant certiorari to Ellison’s appeal. No. 24-782 (April 21, 2025),

‘Reverse’ ruling 

In yet another manifestation of the “strange bedfellows” phenomena at the Supreme Court, forces normally opposed to each other joined last month to support the victorious claim of a straight woman, who sued the Ohio juvenile corrections agency when she worked for “reverse” gender discrimination after she had been bypassed for a promotion and then demoted, both times in favor of gay employees, in Ames v. Ohio Department of Youth Services, 145 S.Ct. 1540 (2025). Both the Biden administration and conservative legal groups weighed in with briefs supporting the woman’s appeal of lower court trial and appellate rulings dismissing her case in summary judgment by applying a heightened standard of proof, used in about half the jurisdictions, requiring proof of “background circumstances” rather than the preponderance of evidence three-party burden shifting standard used in other workplace bias cases.

The Supreme Court, in a decision authored by liberal Justice Ketanji Brown Jackson, unanimously agreed with the unusual duo, holding that there should be no “distinction between majority-group plaintiffs and minority-group plaintiffs,” and remanded the case for trial. Justice Clarence Thomas, striking his usual blow for “color-blind” jurisprudence, joined by fellow conservative Justice Neal Gorsuch, weighed in with a concurrence pointing out the difficulties of identifying “who is a member of the majority” in many gender, race and religious discrimination cases.

The case heads back to trial now, or a settlement, with both progressive and conservative forces cheering on the straight woman claimant in the “reverse-discrimination” case that may make employers in both public and private sectors wary of bypassing promotions, demotions, or even failing to hire straight whites in favor protected “minority” groups and facilitate lawsuits when they do so.

Standing suit 

The Trump administration even strangely carried on a Biden-era defense of the Environmental Protection Agency (EPA) in a challenge by fuel providers contesting a waiver by the agency allowing California to exceed federal standards for restricting emissions in Diamond Alternative Energy v. EPA, 2025 WL 1716141.

The current Justice Department legal team picked up the preceding administration’s position that the challengers lack standing because they have not yet been harmed by any regulations yet to be enacted by that state.

But the court disagreed with the Biden-Trump argument and allowed the lawsuit to proceed on grounds that the “targets” of a measure should not be “locked out” from challenging it. The 6-3 conservative majority ruling drew a sharp rebuke from Justice Jackson, who lamented that the court was favoring “moneyed interests” at the expense of “ordinary citizens” and expressed revulsion at the deference given to “corporate interests.”

The odd position of the Trump administration backing the EPA’s stance against the fuel industry that formed a portion of its base and heavy monetary contributor to President Donald Trump’s campaign last year may be attributable to its desire to strengthen the authority of federal regulatory enactments during the current administration.

But it all may become moot, anyway, since Congress has rescinded the EPA’s waiver authority, and the president is expected to sign that measure soon.

This quartet of cases shows that, from Shakespeare to today, strange bedfellows have temporarily set aside their deep differences and shared their views for varying reasons on important legal issues.

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NRA By The Numbers

Membership, 2023: 3.8 million

Membership, 2018: 5.2 million

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Marshall H. Tanick is an attorney at the Twin Cities Law Firm of Meyer, Njus, Tanick, Linder & Robbins, PA.