Misrule of Law

This essay originally appeared in American Greatness on December 14, 2018 (here). Thanks to Instapundit! (here) And also thanks to How Appealing. (here) And SCOTUSblog (here). And Linda Greenhouse in the New York Times! (here)

“Justice Brett Kavanaugh.” Savor those words: They were the culmination of a harrowing ordeal—for Kavanaugh, his family, and the entire nation. At his despicable confirmation hearing, Kavanaugh was subjected to a pummeling more brutal than the gauntlets faced by Robert Bork and Clarence Thomas, combined. Kavanaugh’s replacement of moderate Justice Anthony Kennedy, long the fickle swing vote on the sharply-divided Court, was expected to create a conservative majority for the first time in decades. Understandably, therefore, Court watchers have been monitoring Kavanaugh closely to discern any shift in the Court’s direction.

Good grief. He’s only been sitting on the Court for a couple of months—still learning where the bathrooms are. All the speculation about how Kavanaugh will vote and what his judicial philosophy will look like is premature. Ocean liners don’t turn on a dime, and neither do decades of constitutional jurisprudence. Give him a chance to actually write some opinions or join in other Justices’ opinions on the merits. As someone who has been harshly critical of the Court, I believe it is too soon to be disappointed in Kavanaugh—or, for that matter, to draw any meaningful conclusions about his alignment on the Court. What we know is that he served with distinction on the D.C. Circuit for over a decade.

My esteemed Law & Liberty colleague, Northwestern University law professor John McGinnis, recently decried Kavanaugh’s apparent attitude toward stare decisis—the precedential weight of the Court’s prior rulings—based on a question Kavanaugh asked at oral argument in an important Double Jeopardy case.  McGinnis fears that Kavanaugh may be too cautious regarding the Court’s overruling of previous decisions, declining to do so unless they were “grievously wrong.” McGinnis’s concerns may prove to be well-founded, but I’m willing to give Kavanaugh the benefit of the doubt until I see how he actually votes in the case, Gamble v. United States. Until then, observers are simply reading tea leaves.

Another kerfuffle, involving the Court’s discretionary decision not to hear a case (the denial of certiorari, to be precise), has provoked widespread commentary about Kavanaugh’s willingness to overrule the notorious decision in Roe v. Wade.  This is silly. The Court typically receives over 8,000 cert petitions (requests for review) each year, but only accepts review of about 80 to 100 of them. In other words, the Court decides to hear only one in a hundred of the cases submitted to it for review. Roughly 99 percent of the cases are rejected. The denial of review is not a ruling on the merits, does not signify the Court’s agreement with the decision below, and is generally made summarily—without any written opinion by the Court. Four of the nine Justices have to agree to “grant cert” (or accept review) in a case.

The recent spate of conjecture surrounds Gee v. Planned Parenthood of Gulf Coast, a decision from the Fifth Circuit raising a technical–but important and contentious–legal issue: whether Medicaid recipients have a private right of action to challenge a state’s determination of “qualified” Medicaid providers under a federal statute. The case was fraught with political implications because it arose in Louisiana, where the state had removed Planned Parenthood as a state Medicaid provider due to that organization’s (and its affiliates’) involvement in the illegal sale of fetal organs and fraudulent billing practices. The case, while not about abortion rights per se, involved the nation’s leading abortion provider and concerned the rights of individual Medicaid patients to bring suits challenging the state’s decision to remove Planned Parenthood as a provider.

The federal courts of appeals are split on the legal issue raised by Gee, which is one of the factors the Court normally uses to determine whether to grant review.  What made the denial of review in Gee noteworthy is that Justice Clarence Thomas—joined by Justices Alito and Gorsuch—issued an unusual, four-page dissenting opinion explaining the importance of the issue and implicitly criticizing the Court for declining to grant review.  Thomas is generally regarded as the most conservative Justice on the Court, with Alito and Gorsuch not far behind. The dissent seemed to be directed at one or both of their Republican-appointed colleagues, Chief Justice John Roberts and the newly-seated Justice Kavanaugh. Thomas’s dissent could be interpreted as scolding Roberts and Kavanaugh for timidity in not voting to grant review, going so far as to contend that the Court was “refusing to do its job” for political reasons:

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 Framers gave us lifetime tenure to promote “that independent spirit in the judges which must be essential to the faithful performance” of the courts’ role as “bulwarks of a limited Constitution,” unaffected by fleeting “mischiefs.” The Federalist No. 78, pp. 469–470 (C. Rossiter ed. 1961) (A. Hamilton). We are not “to consult popularity,” but instead to rely on “nothing . . . but the Constitution and the laws.” Id., at 471. We are responsible for the confusion among the lower courts, and it is our job to fix it.

Commentators are reading all kinds of silly things into Kavanaugh’s failure to join Thomas, Alito, and Gorsuch in granting review in Gee: he’s aligned with the liberal bloc, he’s going to be a moderate like Kennedy, he won’t vote to overrule Roe v. Wade, he’s been intimidated by the opposition to his confirmation, he’s lying low, he’s under the sway of Roberts, he’s unwilling to jeopardize the institutional legitimacy of the Court, et cetera. We don’t know why Kavanaugh didn’t join his colleagues. Absent the unusual dissenting opinion, which strikes me as not-very-collegial, we wouldn’t even know how many Justices voted in favor of review, let alone who.

Give Kavanaugh a chance to develop a record on the Court before judging him. Thomas has been on the Court for nearly three decades, Alito since 2006. Gorsuch, who assumed the High Court bench in 2017, is on his second term. Each of these Justices has developed, and exhibited, a distinctive profile on the Court. Kavanaugh hasn’t, yet.

There are many possible reasons why Kavanaugh felt Gee wasn’t deserving of review, out of the many thousands of cases seeking to be heard by the Court. Justices don’t have to explain why they didn’t grant cert to the 99 percent of cases they reject. Until Kavanaugh has produced a track record of rulings on the merits, reading the tea leaves such as questions asked during oral arguments and votes on cert petitions will produce noting more substantial than a fortune teller’s divinations, an astrologist’s celestial insights, or the reading of tarot cards.