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The Supreme Court’s conservatives just split on whether to hear a Planned Parenthood-related case. Four votes are required to grant a case, but just three of the conservative justices favored hearing it. They were peeved enough to dissent from their colleagues’ denial of certiorari. The split isn’t of tidal importance, but it’s almost certainly significant to some degree.
At immediate issue is whether Medicaid recipients have a right to challenge state-made determinations about qualified providers. If they do, Medicaid patients can challenge states over highly-politicized decisions to eliminate access to Planned Parenthood affiliates. Five federal appeals courts have ruled that patients do have that right; just one disagreed.
The oldest of these rulings, from 2006, concerns a state’s provision of pediatric screening; it has nothing to do with Planned Parenthood. That decision proves just why it is so critical that Medicaid patients be able to hold the state accountable for providing care as mandated by federal law. If they can’t, patients’ mechanisms for challenging access to and quality of care under Medicaid would be severely curtailed.
The four-page dissent from the court’s denial of certiorari—a not-so-usual phenomenon—was authored by Justice Clarence Thomas and joined by Justices Samuel Alito and Neil Gorsuch. They argue that the Supreme Court is shirking its responsibility to resolve circuit splits and “confusion among the lower courts.” Sure, states were motivated by anti-abortion animus revved via false claims of fetal organ sales, but this isn’t a case about abortion, Thomas writes indignantly. Planned Parenthood would still be welcome to challenge states’ determinations; it’s just a matter of whether individual Medicaid patients can do the same.
There are plenty of reasons Chief Justice John Roberts and Justice Brett Kavanaugh might’ve withheld their votes that have nothing to do with their ultimate willingness to hear the issue or their position. A pessimist could posit that the justices want to address some more fundamental issue surrounding reproductive rights, rather than this derivative issue. It could also be that the defectors don’t think a 5-1 circuit split requires Supreme Court intervention or that this case isn’t a good vehicle, to their minds, for addressing the issue.
A better-case scenario: Roberts and Kavanaugh don’t want to hear that case for public policy-related reasons. They’ll let individual circuits make the law for the states they cover. If that’s the case, it could bode well for a host of other deeply important issues queued for the court, as ACLU’s Joshua Block points out.
Block is a staff attorney with the ACLU’s Lesbian Gay Bisexual Transgender & HIV Projects. The Title VII cases he’s referring to are cases in which LGBT employees subjected to anti-LGBT discrimination have sued under Title VII’s prohibition against sex discrimination.
Establishing that sex discrimination under one federal statute protects LGBT people paves the way to secure additional protections under other laws. On the other hand, given the Supreme Court’s composition, these cases also create the risk that the court could find definitively that sex discrimination does not protect LGBT people. That’d be a setback of enormous proportions for LGBT rights.
Several circuit courts have already adopted the view that discrimination on the basis of sexual orientation or gender identity is sex discrimination under Title VII. The 7th U.S. Circuit Court of Appeals pronounced in 2017 that ”discrimination on the basis of sexual orientation is a form of sex discrimination.” The 2nd Circuit joined the 7th this past February.
“In the context of sexual orientation,” wrote the 2nd Circuit, “a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women.” Come March, the 6th Circuit held that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”
The 11th Circuit, meanwhile, punted, citing a lack of guidance from the Supreme Court, among other things.
Three petitions—appeals from the decisions of the 2nd, 6th, and 11th Circuits—now await the Supreme Court’s consideration. Until now, many have been interpreting the circuit split and the issue’s national importance as creating a high likelihood the court will grant a hearing on the Title VII issue. With Roberts’ and Kavanaugh’s refusal to hear an abortion-adjacent, high-profile case with the same characteristics (and same potential for polarization) comes the hope that the Supreme Court will leave Title VII to the circuit courts for now.
On a broader note, the prospect of a Kavanaugh who aligns himself more closely with Roberts than Thomas, Alito, and Gorsuch is an intriguing one. It’s in line with the image he cultivated on the D.C. Circuit, with his careful acquisition of allies on both sides of the aisle, if not the persona he presented before the Senate Judiciary Committee.
An optimist would say that having two conservative justices who are able to place the court’s legacy and the public’s well-being before politics, at least on occasion, would be significant, regardless of their reasons for doing so. Until now, Roberts has been the sole hope for moderation, based largely on his vote to save the Affordable Care Act. The existence of a slightly more moderate dyad, especially one routinely alienated by the far-right triad, bodes far better for moderation than a single voice capable of moderation. It’s also a position that those justices could come to enjoy.
A law professor who knew him well once told me former Justice Anthony Kennedy reveled in his role as swing vote, in being the focus of persuasive efforts. While a lone justice willing to moderate might find that role thankless, especially a chief justice, two justices banding together could reinforce one another’s logic, provide cover to one another, and acquire the same prominence and respect as Kennedy—every brief would be written for that pair, every argument prepared in relation to their views.
Just a thought.