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| A Supreme Court Divided. On the Right. | A Supreme Court Divided. On the Right. |
| (about 4 hours later) | |
| Last week, after the Supreme Court turned down appeals by two states that had tried to terminate Planned Parenthood’s status as a Medicaid provider, much of the commentary understandably centered on the implications of the court’s action for the future of abortion rights. My interest here is the implication for the future of the Roberts court. | Last week, after the Supreme Court turned down appeals by two states that had tried to terminate Planned Parenthood’s status as a Medicaid provider, much of the commentary understandably centered on the implications of the court’s action for the future of abortion rights. My interest here is the implication for the future of the Roberts court. |
| The Supreme Court’s docket-setting process, by which it selects less than 1 percent of the appeals that reach it every year, is a black box. The justices almost never explain at the time why they agree to hear one appeal or turn down another. But in the case of the efforts by Louisiana and Kansas to “defund” Planned Parenthood — shorthand for disqualifying a health care provider from reimbursement eligibility under a state-administered Medicaid program for low-income individuals — the court’s three most conservative justices did us a great favor. | The Supreme Court’s docket-setting process, by which it selects less than 1 percent of the appeals that reach it every year, is a black box. The justices almost never explain at the time why they agree to hear one appeal or turn down another. But in the case of the efforts by Louisiana and Kansas to “defund” Planned Parenthood — shorthand for disqualifying a health care provider from reimbursement eligibility under a state-administered Medicaid program for low-income individuals — the court’s three most conservative justices did us a great favor. |
| In a dissenting opinion that can only be described as snarky, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch did more than permit some light to enter the black box. They trained a spotlight on the court’s most private proceeding, the weekly closed-door conference at which the justices, unaccompanied by law clerks or secretaries, meet to set the country’s legal agenda. | In a dissenting opinion that can only be described as snarky, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch did more than permit some light to enter the black box. They trained a spotlight on the court’s most private proceeding, the weekly closed-door conference at which the justices, unaccompanied by law clerks or secretaries, meet to set the country’s legal agenda. |
| Based on the court’s online docket, we could deduce during the run-up to last week’s action that the cases were controversial inside the court. The Louisiana petition, Gee v. Planned Parenthood of Gulf Coast Inc., went to the conference eight times since the current term began. It was nine times for the Kansas petition, Andersen v. Planned Parenthood of Kansas and Mid-Missouri. In a typical case, one or two conferences suffice for the justices to decide what to do. Extended review typically means one of three things: three or fewer justices want to hear the case and are trying to find the necessary fourth vote; those justices have given up on that effort and are working on a dissent to be circulated internally and then published to the world; or the court as a whole regards the case as so easy that it can be decided in conference without full briefing and oral argument. In the Planned Parenthood cases, it’s safe to assume that the third explanation was never on the table. What we most likely had was a failed search for a fourth vote that turned into the revealing dissent. | |
| Who might have provided a fourth vote? Chief Justice John Roberts, obviously, or the newest justice, Brett Kavanaugh, the successor to Justice Anthony Kennedy, whose votes in favor of maintaining the right to abortion were reluctant but fairly steady. Following the court’s normal practice, Chief Justice Roberts and Justice Kavanaugh kept to themselves their reasons for not voting to hear the cases. It was Justice Thomas, in a dissent joined by Justices Alito and Gorsuch, who broke the norm by accusing his two colleagues of “abdicating our judicial duty.” | Who might have provided a fourth vote? Chief Justice John Roberts, obviously, or the newest justice, Brett Kavanaugh, the successor to Justice Anthony Kennedy, whose votes in favor of maintaining the right to abortion were reluctant but fairly steady. Following the court’s normal practice, Chief Justice Roberts and Justice Kavanaugh kept to themselves their reasons for not voting to hear the cases. It was Justice Thomas, in a dissent joined by Justices Alito and Gorsuch, who broke the norm by accusing his two colleagues of “abdicating our judicial duty.” |
| As a formal matter, the state’s appeals presented simply a jurisdictional question. The Medicaid law contains what’s known as the “free choice of provider” provision, entitling Medicaid recipients to obtain care from any provider who is both qualified and willing. The issue in the cases was whether this provision gives Medicaid patients the right to sue to keep a provider on the list. Five United States Courts of Appeals have said yes, including those for the Fifth and Tenth Circuits in these cases, while the court for a sixth circuit, in a decision last year, said no. A conflict among the federal circuits is a typical indication that an issue is worthy of the Supreme Court’s attention, although a lopsided 5-to-1 split is not the kind of entrenched conflict that makes a grant of review nearly automatic. | As a formal matter, the state’s appeals presented simply a jurisdictional question. The Medicaid law contains what’s known as the “free choice of provider” provision, entitling Medicaid recipients to obtain care from any provider who is both qualified and willing. The issue in the cases was whether this provision gives Medicaid patients the right to sue to keep a provider on the list. Five United States Courts of Appeals have said yes, including those for the Fifth and Tenth Circuits in these cases, while the court for a sixth circuit, in a decision last year, said no. A conflict among the federal circuits is a typical indication that an issue is worthy of the Supreme Court’s attention, although a lopsided 5-to-1 split is not the kind of entrenched conflict that makes a grant of review nearly automatic. |
| Stressing the circuit conflict, Justice Thomas asked: “So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion.” | Stressing the circuit conflict, Justice Thomas asked: “So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion.” |
| Of course, the cases had everything to do with abortion in a real-world sense. The attack on Planned Parenthood by red states — 16 had signed a friend-of-the-court brief — was fueled by a fraudulently obtained and dishonestly edited video purporting to show that Planned Parenthood clinics sell body parts of aborted fetuses. As lower courts have found, the accusation is false. | Of course, the cases had everything to do with abortion in a real-world sense. The attack on Planned Parenthood by red states — 16 had signed a friend-of-the-court brief — was fueled by a fraudulently obtained and dishonestly edited video purporting to show that Planned Parenthood clinics sell body parts of aborted fetuses. As lower courts have found, the accusation is false. |
| “It is true,” Justice Thomas continued, “that these particular cases arose after several states alleged that Planned Parenthood had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider. But these cases are not about abortion rights.” | “It is true,” Justice Thomas continued, “that these particular cases arose after several states alleged that Planned Parenthood had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider. But these cases are not about abortion rights.” |
| Without bothering to mention that the allegation against Planned Parenthood has been thoroughly debunked, Justice Thomas went on: “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.” | Without bothering to mention that the allegation against Planned Parenthood has been thoroughly debunked, Justice Thomas went on: “Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.” |
| Quoting Number 78 of the Federalist Papers, Justice Thomas lectured his colleagues: “The Framers gave us lifetime tenure to promote ‘that independent spirit in the judges which must be essential to the faithful performance’ of the courts’ role as ‘bulwarks of a limited Constitution,’ unaffected by fleeting ‘mischiefs.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing but the Constitution and the laws.’” | Quoting Number 78 of the Federalist Papers, Justice Thomas lectured his colleagues: “The Framers gave us lifetime tenure to promote ‘that independent spirit in the judges which must be essential to the faithful performance’ of the courts’ role as ‘bulwarks of a limited Constitution,’ unaffected by fleeting ‘mischiefs.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing but the Constitution and the laws.’” |
| In other words, we have three conservative justices calling out two other conservative justices as wimps at best, unprincipled strivers for public approval at worst. And this may be just the tip of the iceberg. Now in recess until the second week in January, the court has issued only two opinions in argued cases since the current term began on Oct. 1, a slow start that makes it much too early to take the court’s temperature. But it’s notable that a similar split emerged last month in response to the Trump administration’s effort to enlist the court in stopping a trial on the legality of the disputed decision to add a citizenship question to the 2020 census. Only three justices voted to grant the administration’s request: Justices Thomas, Alito and Gorsuch. | In other words, we have three conservative justices calling out two other conservative justices as wimps at best, unprincipled strivers for public approval at worst. And this may be just the tip of the iceberg. Now in recess until the second week in January, the court has issued only two opinions in argued cases since the current term began on Oct. 1, a slow start that makes it much too early to take the court’s temperature. But it’s notable that a similar split emerged last month in response to the Trump administration’s effort to enlist the court in stopping a trial on the legality of the disputed decision to add a citizenship question to the 2020 census. Only three justices voted to grant the administration’s request: Justices Thomas, Alito and Gorsuch. |
| Where were the chief justice and Justice Kavanaugh then? The answer is unknowable from the outside, but the question is crucial. Has it occurred to the Thomas three that something more significant may be at stake than dragging the court into ideological battle? Something like the court’s own short-term welfare and long-term legitimacy? | Where were the chief justice and Justice Kavanaugh then? The answer is unknowable from the outside, but the question is crucial. Has it occurred to the Thomas three that something more significant may be at stake than dragging the court into ideological battle? Something like the court’s own short-term welfare and long-term legitimacy? |
| We know Chief Justice Roberts is concerned about public perception of the Supreme Court, and of all federal courts, as tools of political partisanship. That concern, which he has expressed repeatedly, finally led him to push back last month against President Trump’s latest attack on federal judges. We also know that despite his usually genial demeanor, the chief justice is an isolated figure, scorned on the right as a traitor for having saved the Affordable Care Act and mistrusted on the left for having eviscerated the Voting Rights Act, among other decisions. It’s odd to think of this most powerful person in the federal judiciary, 13 years into his tenure, as needing a friend, but perhaps he does, and just maybe Brett Kavanaugh is it. | We know Chief Justice Roberts is concerned about public perception of the Supreme Court, and of all federal courts, as tools of political partisanship. That concern, which he has expressed repeatedly, finally led him to push back last month against President Trump’s latest attack on federal judges. We also know that despite his usually genial demeanor, the chief justice is an isolated figure, scorned on the right as a traitor for having saved the Affordable Care Act and mistrusted on the left for having eviscerated the Voting Rights Act, among other decisions. It’s odd to think of this most powerful person in the federal judiciary, 13 years into his tenure, as needing a friend, but perhaps he does, and just maybe Brett Kavanaugh is it. |
| Clearly, there is concern on the right about that very prospect. In a recent blog post on the website American Greatness, a conservative lawyer named Mark Pulliam, who describes himself as having “fled California” for his current home in Texas, addressed such fears and sought to allay them. “Commentators are reading all kinds of silly things into Kavanaugh’s failure to join Thomas, Alito, and Gorsuch” in the Planned Parenthood cases, Mr. Pulliam wrote in an essay titled “Kavanaugh: Too Soon to Be Reading Tea Leaves.” “Good grief,” Mr. Pulliam exclaimed. “He’s only been sitting on the court for a couple of months — still learning where the bathrooms are.” | Clearly, there is concern on the right about that very prospect. In a recent blog post on the website American Greatness, a conservative lawyer named Mark Pulliam, who describes himself as having “fled California” for his current home in Texas, addressed such fears and sought to allay them. “Commentators are reading all kinds of silly things into Kavanaugh’s failure to join Thomas, Alito, and Gorsuch” in the Planned Parenthood cases, Mr. Pulliam wrote in an essay titled “Kavanaugh: Too Soon to Be Reading Tea Leaves.” “Good grief,” Mr. Pulliam exclaimed. “He’s only been sitting on the court for a couple of months — still learning where the bathrooms are.” |
| If despite Mr. Pulliam’s fondest wish the newest justice proves an ally for a chief justice caught in the middle, the real test may come when last week’s aggressively implausible decision purporting to render the Affordable Care Act unenforceable reaches the court. If there’s any fun to be had these days in contemplating the march of events, The Wall Street Journal’s editorial response to the decision is not to be missed. That newspaper has been relentlessly anti-Obamacare for years. Now its editorial board is nervous. “Texas Obamacare Blunder,” the editorial’s headline read, along with, “A judge’s ruling will be overturned and could backfire on Republicans.” The editorial warned that Democrats would use the decision “to further pound Republicans for denying health insurance for pre-existing conditions,” an issue that proved an albatross for Republican candidates in this fall’s midterm elections. | If despite Mr. Pulliam’s fondest wish the newest justice proves an ally for a chief justice caught in the middle, the real test may come when last week’s aggressively implausible decision purporting to render the Affordable Care Act unenforceable reaches the court. If there’s any fun to be had these days in contemplating the march of events, The Wall Street Journal’s editorial response to the decision is not to be missed. That newspaper has been relentlessly anti-Obamacare for years. Now its editorial board is nervous. “Texas Obamacare Blunder,” the editorial’s headline read, along with, “A judge’s ruling will be overturned and could backfire on Republicans.” The editorial warned that Democrats would use the decision “to further pound Republicans for denying health insurance for pre-existing conditions,” an issue that proved an albatross for Republican candidates in this fall’s midterm elections. |
| And here’s the really fun part. Back in 2012, Chief Justice Roberts saved the Affordable Care Act from the Republicans. Now influential voices on the right are being raised in prayer for him to save the law for the Republicans. | And here’s the really fun part. Back in 2012, Chief Justice Roberts saved the Affordable Care Act from the Republicans. Now influential voices on the right are being raised in prayer for him to save the law for the Republicans. |
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