Brett Kavanaugh cannot be allowed to join the Supreme Court. Here’s your latest reason why: We’ve just learned justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wanted to grant a request that would have prevented Philadelphia from refusing to direct foster children to a social services organization that rejects all LGBTQ parents—a policy upheld by the district court.
Catholic Social Services (CSS) claimed Philadelphia’s “vindictive conduct will lead to displaced children, empty homes, and the closure of a 100-year-old ministry.” The city pointed out that it gets to decide how government funds are spent, there’s a clear city-wide non-discrimination policy, and CSS’s contract is contingent on compliance. Thomas, Alito, and Gorsuch’s support more than subtly signals how they’d decide the case itself. (For background on the district court ruling, see this July post.)
CSS needed five justices. You might think, “ah, then Kavanaugh would only be the fourth vote in crazy cases like these.” Problem is, when it comes to deciding whether the court will hear the case itself (versus weigh in on whether the initial decision should be stayed), it only takes four votes.
This case will be back. CSS has appealed to the Third Circuit Court of Appeals, covering Pennsylvania, New Jersey, and Delaware, plus the Virgin Islands. Republicans have plenty of time to try to force Kavanaugh onto the court before the justices are asked to decide this case on the merits (rather than just weigh in on the initial stages).
What would happen if Kavanaugh joined the court to give Thomas, Alito, and Gorsuch the fourth vote they need to hear cases like this? Roberts will almost certainly defect. Roberts toed the precedential line on same-sex marriage in a case called Pavan the summer Gorsuch joined, but these “religious liberty” suits are a different matter entirely. The marriage decision, Obergefell, did not confer protections on gay people, just our marriages. And, reminder: Roberts dissented in Obergefell.
There’s no statutory cover, either. Contrary to public belief, discrimination against LGBTQ people is not prohibited by federal law; only half of states, roughly, have protections in place, and many protect only sexual orientation, not gender identity.
Would Roberts really, in the absence of firm precedent or law to shield him, defy the right? No. The conservative bloc could rule for CSS without overturning precedent—not that he’s shy about that, as Citizens United taught us. Conservative litigators, and their donors, have created entire organizations dedicated to distorting the concept of religious liberty so it can be used as a cudgel rather than a shield. They’ve been at it for years now in dozens of suits across the country. Hate group Alliance Defending Freedom claims to have more than 3,200 “allied” attorneys and 300-plus partner organizations; they’ve trained more than 2,000 attorneys and boast about benefiting from more than a million pro bono hours. Then there’s this: Though ad hominem reasoning is generally overblown, it’s worth noting Roberts is Catholic—and an adoptive father.
If Kavanaugh is confirmed, our only hope for avoiding the annihilation of the rule of law is John Roberts. When I say “hope,” it's not that there’s any reason to think he’ll be a true swing vote or swing our way often. Just often enough to prevent his tenure as chief justice from being taught as a debacle. He’s not going to be a barrier to razing regulations—there goes clean water, air, consumer safety, financial protections, you name it—and there’s nothing to suggest he’d lift a finger to protect civil rights, especially not for LGBTQ people.