Last night, by a vote of 5 to 4 (in June Medical Services v. Gee), the Supreme Court granted the request of abortion providers to block a Louisiana law from taking effect until the Court acts on their intended petition for certiorari seeking review of the Fifth Circuit decision below. Chief Justice Roberts joined the four liberal justices in granting the stay. Justice Kavanaugh wrote a brief dissent setting forth the very narrow grounds on which he voted to deny the request. Justice Thomas, Justice Alito, and Justice Gorsuch dissented without further explanation (as is common on such requests).
Much as I was hoping that the Supreme Court would deny the abortion providers’ request, I think that those who discern grand significance in yesterday’s order are reading the tea leaves with far too much assurance. In this post, I will offer some observations on the actions of the Chief Justice and Justice Kavanaugh. I will offer some broader observations in a second post.
1. I see several possible (and overlapping) explanations for why the Chief Justice voted as he did.
First, it is eminently plausible that the Chief genuinely concluded that the abortion providers had satisfied the three-part test for granting a stay pending filing of a certiorari petition. The first part of that test is that there must be a reasonable probability that four members of the Court would vote to grant certiorari. It’s safe to assume that his four liberal colleagues made clear that they would vote to grant cert. The second element is that there must be a “significant possibility” that the lower court’s decision would be reversed. Although I’ve explained why I think that this element wasn’t satisfied, the standard is so indeterminate that there’s plenty of room for someone to conclude otherwise. The third element is a likelihood of “irreparable harm” if the decision is not stayed. The parties’ competing claims about the likely effect of the Louisiana law also allow reasonable room for disagreement on whether this element is satisfied. (Given existing precedent, the state did not argue that making abortion more difficult to obtain did not qualify as a cognizable harm.)
Second, knowing that his four liberal colleagues would provide the votes needed to grant certiorari in the case, the Chief might well have figured that preserving the case in the procedural posture of a facial challenge to Louisiana’s law was sensible. Among other things, that posture offers the best opportunity for the Court to establish clearly that in a facial challenge to abortion laws, the plaintiff bears the usual burden of establishing that no set of facts exists under which the challenged law would be valid. That would be an important advance. (I discuss this facial-challenge issue more extensively in this essay.) By contrast, if the Louisiana law were to go into effect, the abortion providers’ challenge to it could easily morph into an as-applied challenge.
Third, the Chief might hope that by accommodating the liberal justices on process, he will build good will that will give him more leeway to set things right. Or, to modify the point somewhat, he might hope that his vote enhances the perceived legitimacy of the Court. For what it’s worth, I think that concerns about perceived legitimacy involve impossible calculations and too readily collapse into trying to satisfy the New York Times editorial board.
2. I don’t think that the Chief’s vote signals anything about how he will rule on the merits of the case. I would be very surprised if he regards the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (from which he dissented) as sound precedent. Nor should he. (Note, as one point of comparison, that the liberal justices haven’t regarded Citizens United v. FEC as binding precedent.)
3. In his three-page dissent, Justice Kavanaugh explains that “the status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period” and that he would therefore “deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction” at the end of that transition period. Kavanaugh notes that all parties “agree that Whole Woman’s Health is the governing precedent for purposes of this stay application” and proceeds to apply that precedent.
Amazingly, on the basis of this very narrow opinion, some folks on the Left are making frantic charges that Kavanaugh “has declared war on Roe,” and they are trying to beat up Senator Susan Collins for voting for his confirmation. (To be clear: My own expectations for Kavanaugh are very different from those that Senator Collins has voiced. His dissent yesterday, though, does not speak meaningfully to the question of whose expectations will be vindicated.)