By Noah Feldman
Justice Clarence Thomas has a message for Justice Brett Kavanaugh: Let’s roll. Kavanaugh, however, isn’t yet taking up the invitation. The newest member of the U.S. Supreme Court may eventually join a conservative majority of five to roll back large swaths of liberal jurisprudence. Yet it’s noteworthy that Thomas is already impatient with Kavanaugh, just a couple of months into the latter’s life tenure.
All this is the takeaway from the tea leaves of an otherwise opaque opinion issued Monday with Thomas dissenting from the court’s refusal to hear a case brought by Planned Parenthood.
The technical issue being put to the court was whether, when a state has decertified a Medicaid provider, individual citizens who use that provider may go to court and demand the provider be reinstalled. That issue arose for Planned Parenthood after several states decertified the provider based on the highly doubtful basis that the provider was engaged in fraudulent billing and the sale of fetal tissue.
The relevant statute, 42 U.S.C. §1396a(a)(23), doesn’t offer a crystal clear answer as to whether an individual Medicaid recipient can go to court to demand a provider’s recertification. Six federal courts of appeal have addressed the issue, juxtaposing the obscure Medicaid statute with 42 U.S.C. §1983, the extremely important statute that gives citizens the right to go to court to demand vindication when their federal rights have been violated. Of those six, five courts held that the citizen-Medicaid recipient may go to court; one court said no.
Planned Parenthood asked the Supreme Court to resolve this split between the circuit courts. In general, the Supreme Court prefers to take cases where there is a so-called circuit split.
In the arcane terms used by Supreme Court clerks who analyze petitions for a spot on the court’s docket, and the Supreme Court practitioners who write petitions aimed at them, this split is a “lopsided” one. When only a single court has held differently from a growing number of others, the Supreme Court will not infrequently wait to see whether the lone outlier court changes its mind. There’s no need to spend valuable judicial resources on resolving a split that will eventually resolve itself.
It takes four Supreme Court justices to vote to take a case. Thomas got the votes of Justices Samuel Alito and Neil Gorsuch in the Planned Parenthood case. We know that because both joined Thomas’s opinion dissenting from the denial. We also know that no other justice joined Thomas — because otherwise there would have been four votes to grant and the court would’ve agreed to hear the case.
There is little doubt that Thomas, Alito and Gorsuch would all have voted that an individual lacks the authority to sue for the reinstatement of a Medicaid provider. Indeed, Thomas hinted strongly in his opinion that they would like to go further. Thomas and his colleagues think the court should continue to make lawsuits to vindicate federal law more difficult to bring.
What’s fascinating is that Thomas called out Kavanaugh in his dissent. Not only did he call the court’s decision not to take the case “troubling.” He went on to offer the insinuation that Kavanaugh (and Chief Justice John Roberts) didn’t want to decide against Planned Parenthood. “I suspect [the decision not to grant] has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood,’” Thomas wrote, “even though the question presented has nothing to do with abortion.”
Thomas wasn’t done. He added that the justices should take on “politically fraught” issues regardless of consequences, because “the Framers gave us lifetime tenure.”
It’s hard to read this as anything other than Thomas lecturing Kavanaugh, the most recently appointed member of the court, about how he should do his job. Thomas genuinely doesn’t care about the political consequences of his opinions. His fearless dissents embody a “devil take the consequences” originalism. He quite clearly doesn’t mind the idea of the court upending established practices in the name of the original meaning of the Constitution.
The subtext of this mini-lecture is that Thomas expected better from Kavanaugh. Because the case had been on the court’s agenda before Kavanaugh’s appointment, Thomas already knew that Roberts didn’t want to hear it. But he must have expected Kavanaugh to join his team immediately — and Kavanaugh didn’t, at least not in this case.
There are multiple ways to interpret Kavanaugh’s refusal to go along now. One is that, as the new kid on the block, Kavanaugh is just being cautious. Supreme Court law clerks learn to be careful about recommending that the court ever hear a case. Kavanaugh, a former clerk himself, may simply want to go slow and find his feet before casting the deciding vote to grant a case that was clearly disputed before he got there.
A second possibility is that Kavanaugh, a consummate judicial politician, is interested in building political power on the court. To do that, you can’t just be a reliable vote for a team. You need to be a little unpredictable, so that your vote can be won over.
Declining to vote to take this case will have given Kavanaugh some clout with the moderate centrists on the court, like Justice Elena Kagan, who demonstratively joked with Kavanaugh on his first day in the Supreme Court courtroom — an act of personal solidarity that Kavanaugh can only have appreciated given the circumstances of his confirmation.
The last, tantalizing possibility is that Kavanaugh doesn’t plan to be a conservative commando, charging up hills with Thomas, Alito and Gorsuch, but a more cautious, safety-in-numbers conservative, who will want to make sure that Roberts is on board before seeking a conservative outcome.
After all, if Roberts didn’t want this case on the docket, it follows that there was some meaningful chance that he wouldn’t have voted with the conservatives at all. That would have meant a liberal win in the case.
Thomas couldn’t care less about gaming Roberts’s eventual vote. He’s used to losing, and it doesn’t bother him. But Kavanaugh may well think differently.
If this theory is correct, it means that Roberts may be able to exercise a moderating effect on the conservative wing of the court by having Kavanaugh as his potential ally. That doesn’t mean Kavanaugh will be quite as moderate as the still-conservative Roberts. But it does give Roberts support in his quest to stop the Supreme Court from being seen as a right-wing partisan body.
That would be good news for the court — and the Republic.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.