The frenzy surrounding Brett Kavanaugh’s nomination — including, but hardly limited to, the weakly supported charge of sexual assault — obscured the fact that Kavanaugh was by no means the most conservative plausible candidate for elevation to the Supreme Court. In my view, Justice Kavanaugh was likely to be somewhere between Chief Justice Roberts and former Justice Scalia/Justice Alito on the ideological spectrum.
That’s not a bad place to be, and it’s certainly a big improvement over Justice Kennedy. However, it was bound (if true) to leave conservatives disappointed in some cases.
Yesterday, Justice Kavanaugh sided with the Chief Justice and the four liberal Justices in two cases involving Planned Parenthood. The issue in both was whether individual recipients of Medicaid who receive services from Planned Parenthood have a right to challenge under federal law a state’s decision to cut off funding to such providers.
U.S. Courts of Appeals have split on this question. Five have said individuals can bring these challenges; one has said they can’t. Such a split normally leads the Supreme Court to resolve the dispute, but in these cases it did not.
It takes only four Justices to accept a case for review. With five conservative Justices, all of them socially conservative and pro-states rights, one might have expected the Court to review these cases. However, only three Justices voted to do so.
We don’t need to guess which three. Justice Thomas wrote a blistering dissent from the decision not to take the cases. Justices Alito and Gorsuch signed the dissent.
Justice Thomas noted that “one of this Court’s primary functions is to resolve important matters on which the courts of appeals are in conflict.” The matter in question here is important, Thomas argued, because “around 70 million Americans are on Medicaid, and the question presented directly affects their rights.”
Justice Thomas explained that “if the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider.” Moreover, “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.”
Thomas blamed this confused state of the law in part on the Supreme Court. He observed that lower courts have described the Supreme Court’s shifting decisions as an “evolution in the law,” which is “a tactful way of saying that this Court made a mess of the issue.”
Thomas then took up the question of why the Court won’t clean up its “mess”:
[W]hat 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. It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates 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. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood’s ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.
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.
The long and short of Thomas’ dissent is this admonition to the Court: Do your job.
But the Chief Justice believes, I think, that part of his job is to navigate the Court through challenging political waters and to keep it out of such waters in some cases. In this instance, the first of the term in which these notions competed, Justice Kavanaugh sided with the Chief.