A Noteworthy Dissent by Justice Thomas

Yesterday the Supreme Court declined to hear the case of Gee v. Planned Parenthood. The case posed the question of whether Medicaid recipients have a private right of action to challenge a state’s determination of who counts as a qualified Medicaid provider. The issue has given rise to a significant circuit split, which normally leads to a cert grant. But not in this case. 

Justice Thomas, joined by Justices Alito and Gorsuch, dissented from the denial of certiorari in a caustic and quite interesting opinion. Here is a portion of what Thomas wrote (I’ve omitted the citations):

“This question is important and recurring. Around 70 million Americans are on Medicaid, and the question presented directly affects their rights. If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider. Because of this Court’s inaction, patients in different States—even patients with the same providers—have different rights to challenge their State’s provider decisions. . . .

So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’ That makes the Court’s decision particularly troubling, as the question presented has nothing to do with abortion. It is true that these particular cases arose after several States alleged that Planned Parenthood affiliates had, among other things, engaged in ‘the illegal sale of fetal organs’ and ‘fraudulent billing practices,’ and thus removed Planned Parenthood as a state Medicaid provider. But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act. Resolving the question presented here would not even affect Planned Parenthood's ability to challenge the States’ decisions; it concerns only the rights of individual Medicaid patients to bring their own suits.

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.’ We are not ‘to consult popularity,’ but instead to rely on ‘nothing ... but the Constitution and the laws.’

We are responsible for the confusion among the lower courts, and it is our job to fix it. I respectfully dissent from the Court's decision to deny certiorari.”

You can find the full dissent on the Supreme Court website here. Professor Noah Feldman sees the dissent as evidence of an early split between Justice Thomas and Brett Kavanaugh. In a new Bloomberg Opinion column, he writes:

“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. . . . 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.”

Obviously, it is far too early to know where Kavanaugh will ultimately sit among the conservative justices. A single vote to deny cert doesn’t necessarily mean anything in the big picture.

But still it is undeniably fascinating to see the Court’s internal dynamics play out in such a public way. Although one expects attorneys, journalists, and law professors to engage in tea leaf reading as a matter of course, it is quite another thing entirely when a sitting Supreme Court justice like Clarence Thomas joins the parlor game. And it is even more remarkable when the justice does so in such a public and provocative fashion.

Justice Thomas’s dissent suggests that the whole Court is just as curious as the rest of us to find out what kind of justice Brett Kavanaugh will ultimately prove to be. This intriguing new dynamic on the nation’s high court bears watching. 

Comments

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

When is he going to pay for those Corvette tires?

[J. Bogart]

Thomas believes that four justices voted against cert because one of the parties was Planned Parenthood; why would one do that? Because one believes that Thomas and his co-signers will hold against Planned Parenthood whatever the merits. Also suggested by mention of proven false allegations against Planned Parenthood.

[Mm]

I think the more plausible reason for Kavenaugh’s position is that he and Roberts don’t want to prove Kavenaugh’s critics correct immediately. Roberts is concerned with appearances so that he can gut civil rights law quietly. They will find another case soon enough. This tells us nothing about Kavanaugh as a judge except that he let Roberts convince him he could have his cake and eat it too if he waited a bit.

[anon]

My my. How the liberals hate and rant.

Everyone they hate they say is evil; they ascribe the worst possible motives to those they loathe (often if not usually without proof, as in this case).

They rant and rave; make constant accusations (based often, as here, on speculation); they foment hate and promote division.

And then, they puff out their chests and claim to be morally superior to anyone who disagrees.

What a sad bunch of haters and shallow thinkers. Ill informed, low information, narrow minded, hateful types who live privileged lives yet can't stand themselves either.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

anon^^^Use any search engine and input Clarence Thomas and gifts or Corvette. But for his position, would he have been given those "gifts?" Facts are facts. I am not a liberal or a conservative. I eschew labels. Your argument is the same as this. Just because President Obama wanted to address race relations, he was labeled a racist by some. Or simply by being civil, one is trolled as "politically correct."