Block on Trump's Asylum Ban Upheld by Supreme Court
Not every appeal to the Supreme Court gets heard. In fact, you need four of the nine Justices to agree to grant what is known as certiorari before a case can move forward to arguments. And because the Court doesn't normally elaborate on the reasons for declining to hear appeals, such decisions are ripe for interpretation.
Take the recent refusal to hear appeals from two lower court decisions regarding Planned Parenthood. Those lower courts ruled that Medicaid recipients can sue states that strip funding for the nonprofit or remove it from their lists of qualified service providers. The Court voted 6-3 to leave those decisions in place, leading to speculation as to why a supposedly conservative court declined to take on an abortion-related appeal.
One Justice's thoughts needed no speculation. Justice Clarence Thomas penned a decent to the decision, blasting what he thought was his colleague's attempt to dodge a controversial issue. "So what explains the Court's refusal to do its job here?" Thomas asked. "I suspect it has something to do with the fact that some respondents in these cases are named 'Planned Parenthood.'"
Thomas, who was joined in his dissent by Justices Alito and Gorsuch, also pointed a potential split among circuit courts on the issue. The Court declined to review Gee v. Planned Parenthood of Gulf Coast (decided by the Fifth Circuit Court of Appeals in New Orleans, Louisiana) and Andersen v. Planned Parenthood of Kansas and Mid-Missouri (decided by the Tenth Circuit Court of Appeals in Denver, Colorado). Thomas pointed also to Does v. Gillespie, decided recently by the Eighth Circuit in St. Louis, ruling that three patients did not have a right to sue the Arkansas Department of Human Services after it terminated its Medicaid provider agreements with Planned Parenthood. Such a circuit split, in his view, ought to be resolved. "We are responsible for the confusion among the lower courts," Thomas concluded, "and it is our job to fix it."
Fight Isn't Finished
As we noted above, we don't know exactly why the other six Justices declined to hear the appeals. Anna North, at Vox Media, ventured the guess that newly minted Justice Brett Kavanaugh joined the majority in order to avoid another fight after his drawn-out confirmation battle. There is no secret, however, as to why Kavanaugh, Gorsuch, and the other conservative Justices were appointed to the Supreme Court. So even if the Court is ducking abortion-related cases now, it surely won't forever.