Opinion | Kavanaugh Ticks Off Conservatives 2 Months After Taking Oath of Office


When Supreme Court Justice Brett Kavanaugh was finally confirmed to the court after an arduous and controversial Senate confirmation process, his ascension to the high bench was heralded as yet another huge victory for Constitutional conservatives in the era of President Donald Trump.

However, mere months after that purported “win” for conservatives, the much-heralded conservative judge just sided with the liberal justices on the Supreme Court to reject a petition requesting a hearing and ruling on cases involving states attempting to defund abortion-provider Planned Parenthood via state funding of Medicaid programs.

Townhall reported that the states of Kansas and Louisiana had attempted to defund Planned Parenthood through Medicaid in the aftermath of the series of undercover videos released in 2015 that revealed the abortion provider was apparently engaged in an atrocious scheme to illegally traffic in the sale of aborted baby body parts for profit.

Those efforts were, of course, met with lawsuits from Planned Parenthood that claimed that the states had no right to pick and choose who would or would not be deemed a “qualified provider” eligible to receive Medicaid funds. Planned Parenthood’s lawsuits have largely prevailed at the lower court level — though there was some conflict in appeals court rulings — and those lower court rulings will now stand after the Supreme Court has declined to take up the case.

A request for the court to take up a case requires the agreement of no less than four of the nine justices. Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch wanted to take up the case, but were outnumbered by the four liberal justices, who were joined by nominally conservative Chief Justice John Roberts — and Kavanaugh, who declined to hear the case.

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The majority of the justices also declined to offer any written opinion or reasoning behind the decision to deny cert to the Kansas and Louisiana cases against Planned Parenthood, and while such an opinion or stated reasoning is certainly not required in instances like this, it would certainly help Kavanaugh’s reputation among conservatives if he were to provide some sort of compelling logic or reason to his choice.

But while the majority didn’t provide an opinion on their decision to reject the cases, Thomas did provide a tersely written four-page dissent from that decision that seemed to accuse the justices of wanting to avoid the controversial cases for political reasons.

Thomas noted that the cases weren’t even really about abortion, per se, even though they involved Planned Parenthood, but rather were focused on the question of whether states and individuals had a right to challenge the qualifications and eligibility of those who receive Medicaid funds in exchange for provided services.

After noting the conflict at the appeals court level over this question — which typically would lead to a hearing and decisive ruling on the matter by the Supreme Court — Thomas cited prior precedence that would support the court hearing the cases and chided his colleagues for allowing confusion on the matter to remain with the conflicting lower court rulings, even writing at one point, “We created this confusion. We should clear it up.”

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Then Thomas got down to the crux of the seemingly inexplicable decision by his fellow justices, including Kavanaugh, and wrote, “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,” he continued. “But these cases are not about abortion rights. They are about private rights of action under the Medicaid Act.”

“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,” Thomas wrote.

He added that the “Framers” of the Constitution had specifically granted the justices “lifetime tenure” in order to make them independent of political whims, and quoted Alexander Hamilton from The Federalist No. 78 to write, “We are not ‘to consult popularity,’ but instead to rely on ‘nothing … but the Constitution and the laws.'”

Thomas concluded as the reason for his dissent, “We are responsible for the confusion among the lower courts, and it is our job to fix it.”

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To be absolutely clear, by no means are we, as conservatives, writing off Justice Kavanaugh as a lost cause or a liberal in Republican clothing like some Republican-appointed justices have proven to be. Indeed, we retain high hopes that Kavanaugh will turn out to be a staunch defender of the Constitution and laws as they are written and that future decisions by him will be more in line with that ideal.

That said, his decision to join with the liberal justices in refusing to take up the cases surrounding the state efforts to defund Planned Parenthood through Medicaid — which, again, is more about individual and state’s rights and less about actual abortion — is a cause for concern, one we hope will eventually be classified as an odd outlier for the conservative originalist jurist going forward.

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Ben Marquis is a writer who identifies as a constitutional conservative/libertarian. He has written about current events and politics for The Western Journal since 2014. His focus is on protecting the First and Second Amendments.
Ben Marquis has written on current events and politics for The Western Journal since 2014. He reads voraciously and writes about the news of the day from a conservative-libertarian perspective. He is an advocate for a more constitutional government and a staunch defender of the Second Amendment, which protects the rest of our natural rights. He lives in Little Rock, Arkansas, with the love of his life as well as four dogs and four cats.
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