Supreme Court Justice Clarence Thomas rightfully excoriated six of his colleagues for refusing to consider a high-profile case involving Planned Parenthood — and, in the process, further ramped up fears on the political right that new justice Brett Kavanaugh is less of a judicial conservative than the court needs.
Even some of us who strongly defended Kavanaugh from smears once he was nominated had earlier expressed concerns about his jurisprudential approach. Today, not only did he join Chief Justice John Roberts and the four justices often identified as “liberal” in punting away the case at hand, but he also did real damage to principles of federalism that the high court should be upholding.
This case arose when several states purged Planned Parenthood from their lists of “qualified” medical providers. Individuals in a number of those states sued to block the move. Different U.S. circuit courts of appeals reached different conclusions as to whether those individuals had legal standing to challenge the states’ determinations.
When different federal appeals courts reach diametrically opposed conclusions on important matters of federal law, the Supreme Court almost always grants certiorari to consider the case, thus resolving the dispute and the confusion. If four of the nine justices vote to grant cert, the high court will indeed hear the case. But today, only justices Thomas, Samuel Alito, and Neil Gorsuch voted to hear the case, thus leaving in place the lower court decisions.
Thomas’ dissent from that denial was, as is his wont, a model of clarity and judicial eloquence. He explained the unfairness that will result in practical terms: “Because of this court’s inaction, patients in different states — even patients with the same providers — have different rights to challenge their state’s provider decisions.” This is not equal justice under the law.
Thomas also accused his colleagues of ducking the question because, even though the legal issues at hand don’t directly involve abortion rights, Planned Parenthood’s well-established association with abortions gave his colleagues the willies. “Some tenuous connection to a politically fraught issue,” he wrote, “does not justify abdicating our judicial duty.”
In terms of broader judicial principles, however, what concerns me most is that the justices’ apparent cowardice does great harm to federalism, which is the ability of different states to make determinations about questions of public interest within their own borders.
“The question presented also affects the rights of the states,” Thomas wrote. “Not only are the lawsuits themselves a financial burden on the states, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. … Moreover, allowing patients to bring these claims directly in federal court reduces the ability of states to manage Medicaid, as the suits give Medicaid providers ‘an end run around the administrative exhaustion requirements in [the] state’s statutory scheme’.”
Chief Justice Roberts already has a reputation for punting away tough decisions rather than addressing them directly. Today, Kavanaugh gives more evidence (in addition to indications he gave as an appeals court judge) that he is of the same mind and temperament as Roberts. This is distressing. It bodes ill for federalist principles, for consistent jurisprudence, and for the clarity necessary for public understanding of and respect for our Constitution and attendant laws.
