The Supreme Court’s recent reluctance to hear cases involving controversial issues is likely to come to an end in 2019, as a number of high-profile cases are knocking on the bronze doors of the nation’s highest court.
So far this term, the court, after the bruising battle over Justice Brett Kavanaugh’s confirmation, has spurned cases that touch on hot-button issues, turning down appeals from two states involving Medicaid funding for Planned Parenthood.
But a number of blockbuster disputes are awaiting action from the justices, and the Trump administration has continued to urge the Supreme Court to consider challenges to its policies, even if it means bypassing the lower courts.
“We’ll see very soon if the court is willing to push ahead and take some controversial cases,” Josh Blackman, a professor at South Texas College of Law Houston and a member of the conservative Federalist Society, told the Washington Examiner.
The court gave an indication this week it was avoiding divisive cases when it declined to hear two appeals by Louisiana and Kansas of its efforts to block Planned Parenthood from receiving Medicaid funds.
That rebuff drew a dissent from Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. Chief Justice John Roberts and Kavanaugh joined the court’s liberal wing in voting not to weigh in on the dispute.
[Opinion: Brett Kavanaugh sides with liberal justices in declining to hear Planned Parenthood defunding case]
In his dissent, Thomas hinted the court’s decision not to take the case stemmed from its desire to avoid controversy. “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,’” he wrote. “That makes the court’s decision particularly troubling, as the question presented here has nothing to do with abortion.”
Blackman said that Thomas’s dissent seemed to be directed at Roberts and Kavanaugh. “They were signaling that, ‘Brett, you got confirmed, you have life tenure, move on with it. No one cares what kind of beer you like anymore,’” he said, a reference to Democratic senators’ focus on Kavanaugh’s drinking habits during his confirmation hearings.
The Trump administration has asked the Supreme Court to bypass the lower courts and take up challenges to a number of its policies. It asked the Supreme Court to intervene in a legal dispute over the president’s decision to ban transgender people from serving in the military. Both the 9th Circuit and the U.S. Court of Appeals for the District of Columbia Circuit have heard arguments but have yet to issue rulings.
Blackman attributed the frequency with which the Trump administration has sought to leapfrog the lower courts to “aggressive” district court judges who issue nationwide injunctions and an “aggressive” solicitor general, Noel Francisco.
Since the lower courts have dealt the Trump administration a series of losses, Francisco is “going to the only court where he may get a victory, which is the Supreme Court,” Blackman said.
Among the cases awaiting action from the Supreme Court in the new year are three appeals involving whether federal civil rights law protects gay and transgender people from employment discrimination.
Also on the docket are a pair of gerrymandering cases, which could set the Supreme Court up to address the issue of partisanship in the redistricting process for the second term in a row. The justices are already scheduled to discuss at their first conference of 2019 one of the cases, involving North Carolina’s congressional voting maps, which were invalidated by a lower court.
