Milbank conveniently ignores the actual legal principle underlying Alito's comment of "if at first you don’t succeed, sue, sue again.” The same plaintiff, Whole Women's Health, brought the same suit several years ago and lost. They filed the suit again. This falls under a legal principle called res judicata, which can be defined as "something already decided by the courts and, therefore, not necessary for, indeed precluded from, further judicial review." Their case should have been dismissed immediately, because the court should not adjudicate the same case twice. With its ruling, the majority has now undone this principle, or they have chosen to ignore it because of the specific topic of abortion.

Alito had other serious points about the majority's flouting of standing, and adding a cost-benefit test to the "undue burden" test, each of which would dictate a different outcome. Milbank ignores these also. Courts exist to decide issues based on law, not find ways to create new laws.