Faculty Blog, Friedman

The Supreme Court Declines to Resolve Yet Another Lower Court Conflict  

Supreme Court Justice Clarence Thomas is unhappy again – not with a substantive ruling by the court, but with a decision by the majority to decline to hear a particular case.

Last year, Thomas, joined by Justice Samuel Alito, dissented from a decision by the majority – one in a long line – not to consider an appeals court decision involving the scope and breadth of the individual right to bear arms under the Second Amendment. And this week, Thomas, joined this time by both Alito and Justice Neil Gorsuch, dissented from the decision to decline consideration of Gee v. Planned Parenthood, a dispute over whether Medicaid recipients have a right to challenge determinations regulating the providers qualified to deliver services in a particular state. The case concerns allegations that Planned Parenthood affiliates had engaged in practices disqualifying them as state Medicaid providers.

As with the Second Amendment case, Thomas accused the majority of shirking its constitutional responsibility. It seems clear that Thomas and the majority, likely led by Chief Justice John Roberts, have different ideas about what that responsibility entails—and these differing views say a great deal about the internal struggles the Chief Justice is likely to face in the coming years.

One view of the judicial function is, as Thomas put it, fulfilling the responsibility to “fix” problems that result from confusion surrounding prior Supreme Court decisions in a particular area. Thomas averred in his dissenting opinion in Planned Parenthood that this responsibility weighs heavier “when political issues are in the background”—after all, political actors need to know the rules, no less than citizens.

The justices typically do not explain their reasons for declining to take an appeal, but Thomas is probably correct that at least one factor at play in refusing Planned Parenthood was the decision’s political implications. Whether or not the court ultimately would uphold the right of individual Medicaid recipients to challenge a state’s determination as to provider qualifications, the ruling would likely stoke already-smoldering partisan fires around the scope of a woman’s right to choose and the authority of the states to regulate certain medical services.

In contrast to the purity of Thomas’s conception of the judicial role, then, there is the pragmatic view that the court’s authority to review lower court decisions should be regarded as a matter of discretion. And, in the exercise of that discretion, political issues in the background may well  be a factor, because some cases may put at risk the court’s institutional legitimacy—and because some cases can wait for another day.

In this light, it seems a majority of the court, in declining to take the Planned Parenthood appeal, embraced the pragmatic view. This should not be terribly surprising. The past few years have been bruising for the court’s reputation—in no small part because the opportunity to fill vacant seats on the court has become a purely partisan end for both political parties. The court’s institutional reputation has suffered, in other words, due to actions beyond its control. Recent statements by many of the justices as to their certainty that the court engages in strictly neutral decision-making attest to an institutional anxiety, not to mention the Chief Justice’s unusual response to a provocation from President Trump about whether the judiciary is politically independent in our system of government.

What may be surprising about the majority’s decision not to hear Planned Parenthood is that Justice Brett Kavanaugh joined the majority. It is difficult to know for sure where Kavanaugh stands with regard to the tension between the need for clear rules and the desire to protect the court’s institutional legitimacy – the sample size is perilously small – but there is a reasonable possibility that he sides with the Chief Justice’s pragmatism, rather than Thomas’s purity.

In the end, the court’s decision to decline to hear Planned Parenthood may be explained by resort to the Chief Justice’s favorite analogy. Supreme Court justices, like umpires, call balls and strikes—and they also get to say when the players should take the field, and when the game should begin.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of the second edition of Modern Constitutional Law.