New U.S. Supreme Court Justice Brett Kavanaugh has been exactly what many of us who preferred other potential high court nominees, such as Amy Coney Barrett, thought he would be — avoiding controversy and hewing too closely to stare decisis, making legal decisions based on previous legal rulings rather than the wording of the law.
And it’s possible that the dirtiest, meanest, most reprehensible of all confirmation hearings may have made him even more hesitant to take on the most controversial issues of our time — particularly the kingpin of them all: abortion.
This was revealed again Monday when the Supreme Court declined to accept two lower-court rulings that blocked states from cutting off funding to Planned Parenthood — what seems like an eminently states’ rights issue. In that decision, Kavanaugh joined one moderate justice and all of the Court’s liberal justices in letting the lower court ruling stand.
It kind of makes a farce of all the shrill hysteria about how Kavanaugh was going to return women to back-alley, coat-hanger abortions. Of course, the whole hearing and surrounding leftist circus was a sham from beginning to bitter end — including threats to try to impeach Kavanaugh.
The Washington Post reported:
New Justice Brett Kavanaugh did not join the court’s three most conservative members in calling to accept the cases. Justice Clarence Thomas rebuked his colleagues for what he said was a dodge, attributing it to their aversion to taking up the issue of abortion that lurked in the case.
“Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty,” Thomas wrote. “If anything, neutrally applying the law is all the more important when political issues are in the background.”
Thomas’s dissent from the court’s decision to pass on the case revealed a split among the court’s five conservatives: Justices Samuel Alito Jr. and Neil Gorsuch signed on to the statement. Kavanaugh and Chief Justice John Roberts Jr. did not.
Four justices are required to vote in favor of accepting a case. So essentially, Kavanaugh was the deciding vote, and he went with moderate Roberts and the liberals on the court.
So much hysteria in September. So little need.
Louisiana and Kansas announced plans to end funding for Planned Parenthood through Medicaid after an anti-abortion group released videos in 2015 that revealed Planned Parenthood executives laughingly discussing the sale of baby parts. Both were challenged in Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri.
The two cases raise the issue of whether individuals receiving Medicaid — which is dispensed through each state — have a right to challenge a state’s decision to cut off funding to Planned Parenthood. Five lower courts said the recipients of Medicaid do, while one said they do not.
Typically when there is a split at the appeals court level, the Supreme Court will take the case to make the final ruling. Justice Clarence Thomas was clearly frustrated when he wrote his dissent on the decision.
“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,” he wrote. “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 Thomas went on to explain this was not an abortion issue. At stake are the rights of individuals under a major federal law.
“…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.”
Still, Roberts and Kavanaugh ducked it. There will be more opportunities. But the trendline is not good.
If the Democrats takeaway is that even when they cannot stop a nominee they can scar the person into less conservative action, nominations will become even worse — if possible.
Rod Thomson is an author, TV talking head and former journalist, and is Founder of The Revolutionary Act. Rod is co-host of Right Talk America With Julio and Rod on the Salem Radio Network.