1 00:00:00,200 --> 00:00:03,160 Speaker 1: On Monday, the Supreme Court refused to hear appeals from 2 00:00:03,200 --> 00:00:05,760 Speaker 1: two states who want to cut off Medicaid payments to 3 00:00:05,800 --> 00:00:10,160 Speaker 1: plan parenthood. The newest Justice, Brett Kavanaugh, cast the pivotal vote, 4 00:00:10,320 --> 00:00:13,039 Speaker 1: and that seemed to bother three of the other conservative 5 00:00:13,080 --> 00:00:16,560 Speaker 1: justices joining me is Neil Kinkoff, a professor at Georgia 6 00:00:16,600 --> 00:00:20,560 Speaker 1: State University College of Law. Neil, sometimes the Court says 7 00:00:20,600 --> 00:00:24,520 Speaker 1: as much by denying assert petition as by granting it. 8 00:00:24,720 --> 00:00:28,600 Speaker 1: Explain why, well, formally, the first thing to know is 9 00:00:28,640 --> 00:00:32,720 Speaker 1: that a denial of cert is not a ruling, So 10 00:00:32,760 --> 00:00:34,800 Speaker 1: it's not a ruling on the merits. That doesn't tell 11 00:00:34,880 --> 00:00:36,880 Speaker 1: us one way or the other what the court thinks 12 00:00:36,920 --> 00:00:41,280 Speaker 1: about what the lower courts did. And so normally that's 13 00:00:41,320 --> 00:00:43,240 Speaker 1: just the end of the matter, and we don't pay 14 00:00:43,240 --> 00:00:46,000 Speaker 1: a lot of attention. But in this case, I think 15 00:00:46,040 --> 00:00:49,239 Speaker 1: it really does. As you suggest, speak volumes. This is 16 00:00:49,240 --> 00:00:52,240 Speaker 1: a very rare situation where it does, and I think 17 00:00:52,240 --> 00:00:57,440 Speaker 1: it's because of Clarence Thomas's remarkable dissenting opinion in which 18 00:00:57,480 --> 00:01:01,000 Speaker 1: he decided to mind read as to the motives of 19 00:01:01,040 --> 00:01:04,240 Speaker 1: the six justices who voted not to hear the case. 20 00:01:04,920 --> 00:01:07,440 Speaker 1: So the case was a case that involved It was 21 00:01:07,480 --> 00:01:10,839 Speaker 1: two cases actually that involved planned parenthood, but they didn't 22 00:01:10,840 --> 00:01:15,640 Speaker 1: involve the question of abortion. And Justice Thomas speculated that 23 00:01:15,760 --> 00:01:18,360 Speaker 1: the reason the majority didn't want to hear the case 24 00:01:18,959 --> 00:01:22,240 Speaker 1: is that it had to do with planned parenthood and 25 00:01:22,520 --> 00:01:26,720 Speaker 1: they didn't want the political optics of ruling on a 26 00:01:26,760 --> 00:01:30,080 Speaker 1: case involving planned parenthood. And on that point, I think 27 00:01:30,120 --> 00:01:33,720 Speaker 1: Justice Thomas is absolutely right. It's really the only explanation 28 00:01:34,120 --> 00:01:36,520 Speaker 1: that makes any sense for why the Court didn't take 29 00:01:36,560 --> 00:01:40,600 Speaker 1: this case. Now we can further read Tea leaves, but 30 00:01:40,720 --> 00:01:43,160 Speaker 1: I think it starts to get a little precarious. So 31 00:01:43,280 --> 00:01:46,479 Speaker 1: one way of reading it is to say that, well, 32 00:01:46,760 --> 00:01:50,840 Speaker 1: Chief Justice Roberts and Justice Kavanaugh would like to overrule 33 00:01:50,960 --> 00:01:54,920 Speaker 1: roverss way, but not yet, and the other three conservative 34 00:01:55,000 --> 00:01:58,320 Speaker 1: justices are really eager to do it. Now, that's one 35 00:01:58,360 --> 00:02:01,480 Speaker 1: way of reading it, and that's possible. But I think 36 00:02:01,720 --> 00:02:05,720 Speaker 1: it may be the case that Justice Roberts and Justice 37 00:02:05,800 --> 00:02:10,639 Speaker 1: Kavanaugh don't want to overrule Roe versus Wage formally, that instead, 38 00:02:10,680 --> 00:02:14,280 Speaker 1: what they'd rather do is overrule a lot of other 39 00:02:14,360 --> 00:02:20,120 Speaker 1: cases that then give states the ability to regulate abortion 40 00:02:20,240 --> 00:02:24,839 Speaker 1: out of existence without formally overruling Row versus Wade. It's 41 00:02:24,840 --> 00:02:28,560 Speaker 1: sort of a sneaky left handed way of overruling Row 42 00:02:28,800 --> 00:02:32,200 Speaker 1: in effect without ever coming out and saying it, wouldn't 43 00:02:32,200 --> 00:02:35,639 Speaker 1: this case have been the opportunity to make let's say, 44 00:02:35,639 --> 00:02:38,120 Speaker 1: the first crack in the wall of Roe v. Wade 45 00:02:38,200 --> 00:02:42,800 Speaker 1: without specifically overruling it. No, this this case involved the 46 00:02:42,960 --> 00:02:48,120 Speaker 1: very technical question of whether individuals can sue under medicaid 47 00:02:48,520 --> 00:02:52,760 Speaker 1: when a state decides to not include within coverage a 48 00:02:52,880 --> 00:02:56,760 Speaker 1: particular doctor or medical provider um. And so the question 49 00:02:56,800 --> 00:02:59,840 Speaker 1: is whether an individual patient can bring that lawsuit or 50 00:03:00,000 --> 00:03:02,200 Speaker 1: whether it has to be the provider him or her 51 00:03:02,360 --> 00:03:06,280 Speaker 1: or itself that brings that lawsuit. It involves the question 52 00:03:06,280 --> 00:03:08,400 Speaker 1: of whether there's a private right of action. It's the 53 00:03:08,520 --> 00:03:12,359 Speaker 1: legal term of art. Deciding that question wouldn't in any 54 00:03:12,360 --> 00:03:15,839 Speaker 1: way implicate Row versus Way, So that really was never 55 00:03:15,960 --> 00:03:18,720 Speaker 1: on the table in this case. What was on the 56 00:03:18,760 --> 00:03:21,680 Speaker 1: table in this case was the court talking some about 57 00:03:21,720 --> 00:03:25,919 Speaker 1: planned parenthood and the reason states decided not to include 58 00:03:25,919 --> 00:03:29,280 Speaker 1: them as covered providers, which had everything to do with 59 00:03:29,320 --> 00:03:33,520 Speaker 1: that faked evidence that they were selling fetal fetal tissue 60 00:03:33,520 --> 00:03:38,040 Speaker 1: and body parts, which is against the law UM. And 61 00:03:38,120 --> 00:03:40,440 Speaker 1: I think the court didn't want well, I should say 62 00:03:40,480 --> 00:03:43,480 Speaker 1: Chief Justice Roberts and Justice Kavanaugh didn't want to get 63 00:03:43,520 --> 00:03:47,119 Speaker 1: into that political can of worms. It wouldn't have involved 64 00:03:47,200 --> 00:03:49,920 Speaker 1: anything though about Roe versus Way. So we should say 65 00:03:49,960 --> 00:03:52,760 Speaker 1: that it takes four votes to hear a case, and 66 00:03:52,920 --> 00:03:56,240 Speaker 1: this case only got three votes, which are just as 67 00:03:56,240 --> 00:04:00,520 Speaker 1: as Clarence Thomas, Samuel Alito, and Neil Gorst. So then 68 00:04:00,560 --> 00:04:04,480 Speaker 1: you do think that it's an indication of Justice Roberts 69 00:04:04,560 --> 00:04:07,880 Speaker 1: trying to steer the Court away from controversy. Right now, 70 00:04:08,240 --> 00:04:11,040 Speaker 1: I think that's absolutely true. And you know this isn't 71 00:04:11,040 --> 00:04:13,760 Speaker 1: the first time we think he's done that. Right with 72 00:04:13,920 --> 00:04:17,640 Speaker 1: the Obamacare case, there's a lot of speculation that the 73 00:04:17,680 --> 00:04:19,919 Speaker 1: reason he voted the way he did that is to 74 00:04:20,080 --> 00:04:23,760 Speaker 1: uphold the Affordable Care Act is because he didn't want 75 00:04:24,000 --> 00:04:30,880 Speaker 1: the optics of a five justice conservative bear majority striking 76 00:04:31,000 --> 00:04:36,760 Speaker 1: down the key um legislative accomplishment of a democratic president. 77 00:04:37,520 --> 00:04:40,480 Speaker 1: That doesn't look good for the Court. Coming more or 78 00:04:40,560 --> 00:04:44,320 Speaker 1: less on the heels of Bush versus Gore, Right, the 79 00:04:44,360 --> 00:04:48,800 Speaker 1: Court starts to look like a politically conservative institution. And 80 00:04:48,839 --> 00:04:51,960 Speaker 1: if that's how the public perceives the Supreme Court, well, 81 00:04:52,000 --> 00:04:56,479 Speaker 1: then it's legitimacy is gone, and I think Justice Roberts 82 00:04:56,600 --> 00:05:02,799 Speaker 1: perceives the real sort of sistential threat that the Kavanaugh 83 00:05:02,880 --> 00:05:06,719 Speaker 1: confirmation poses. That is, it's apt to lead the country 84 00:05:06,760 --> 00:05:10,839 Speaker 1: to see the Supreme Court as a conservative political group, 85 00:05:11,400 --> 00:05:15,960 Speaker 1: not as neutral umpires calling balls and strikes in Justice 86 00:05:16,080 --> 00:05:19,360 Speaker 1: Roberts his favorite metaphor, and it's the Roberts Court we're 87 00:05:19,400 --> 00:05:22,040 Speaker 1: talking about. So I think you're right that he didn't 88 00:05:22,040 --> 00:05:24,640 Speaker 1: want to see you see a Bush bee gore. But 89 00:05:24,839 --> 00:05:28,720 Speaker 1: let me ask you, then, we've seen him recently come 90 00:05:28,720 --> 00:05:32,520 Speaker 1: out and say, in contradiction to what President Trump said, 91 00:05:32,760 --> 00:05:36,400 Speaker 1: say that there are no Obama judges or Trump judges 92 00:05:36,560 --> 00:05:40,360 Speaker 1: or Bush judges. Was he sending a message to President 93 00:05:40,360 --> 00:05:43,560 Speaker 1: Trump at that point that he will draw the line there? No. 94 00:05:43,720 --> 00:05:45,839 Speaker 1: I think he was sending a message to the public 95 00:05:46,360 --> 00:05:51,239 Speaker 1: that we're neutral, right, we just apply the law. And 96 00:05:51,640 --> 00:05:54,040 Speaker 1: this is of a piece with that. I think you're 97 00:05:54,080 --> 00:05:57,359 Speaker 1: right to point out that quote because this is another 98 00:05:57,400 --> 00:06:00,839 Speaker 1: way that he tries to avoid the block forming a 99 00:06:00,960 --> 00:06:06,359 Speaker 1: perception that there are justices who are conservative or liberal 100 00:06:06,680 --> 00:06:09,839 Speaker 1: and a broader stance. Five of the six appeals courts 101 00:06:10,000 --> 00:06:13,520 Speaker 1: that have considered the issue in the cases before the 102 00:06:13,560 --> 00:06:17,000 Speaker 1: court that we're talking about sided with the clinics. So 103 00:06:17,320 --> 00:06:20,200 Speaker 1: if this were not a controversial area, would this be 104 00:06:20,279 --> 00:06:22,720 Speaker 1: the kind of case that the court would take or 105 00:06:22,760 --> 00:06:26,040 Speaker 1: should take. Normally a court would take this kind of 106 00:06:26,080 --> 00:06:29,000 Speaker 1: case because there is a split between the circuits, even 107 00:06:29,040 --> 00:06:31,640 Speaker 1: though it's five on one side and only one on 108 00:06:31,760 --> 00:06:35,600 Speaker 1: the other, because the court denied the certain petition in 109 00:06:35,600 --> 00:06:39,120 Speaker 1: this case, all of those ruling stand, which means that 110 00:06:39,200 --> 00:06:44,000 Speaker 1: in five circuits what the state did in um not 111 00:06:44,160 --> 00:06:49,000 Speaker 1: covering services provided by planned parenthood is illegal, and in 112 00:06:49,080 --> 00:06:53,360 Speaker 1: the one circuit that's upheld it, then those denials are legal, 113 00:06:53,720 --> 00:06:57,920 Speaker 1: and that creates incoherence. Lower court judges who hear these 114 00:06:57,920 --> 00:07:00,760 Speaker 1: cases in the future really don't know what to do. 115 00:07:01,240 --> 00:07:03,359 Speaker 1: And it's supposed to be the job of the Supreme 116 00:07:03,400 --> 00:07:06,039 Speaker 1: Court to resolve these kinds of what are referred to 117 00:07:06,080 --> 00:07:10,080 Speaker 1: as circuit splits, and so normally the Supreme Court would 118 00:07:10,080 --> 00:07:13,640 Speaker 1: take this kind of case. And Justice Thomas's dissent or 119 00:07:13,760 --> 00:07:15,600 Speaker 1: spells all that out in a way that I think 120 00:07:15,680 --> 00:07:19,040 Speaker 1: is pretty accurate. Why do you think Justice Thomas decided 121 00:07:19,080 --> 00:07:23,040 Speaker 1: to write such a burning sort of dissent? Who is 122 00:07:23,040 --> 00:07:25,800 Speaker 1: he addressing that too? Is he talking to the conservatives 123 00:07:25,800 --> 00:07:29,200 Speaker 1: out there, the Federalist Society, or just Supreme Court watches 124 00:07:29,240 --> 00:07:33,280 Speaker 1: in general. Yeah, I think he's frustrated that the Court 125 00:07:33,440 --> 00:07:36,160 Speaker 1: isn't moving quickly. He's been on the Court a long 126 00:07:36,240 --> 00:07:39,720 Speaker 1: time now, and that role used to be played by 127 00:07:39,800 --> 00:07:43,400 Speaker 1: Justice Scalia. So I think we see Justice Thomas trying 128 00:07:43,400 --> 00:07:47,320 Speaker 1: to assert his own position on the Court as a 129 00:07:47,520 --> 00:07:51,400 Speaker 1: leader of the conservative wing right, and so this is 130 00:07:51,520 --> 00:07:55,239 Speaker 1: him kind of opposing the direction that Roberts is trying 131 00:07:55,280 --> 00:07:58,200 Speaker 1: to chart for the Court and for the conservative wing. 132 00:07:58,920 --> 00:08:03,560 Speaker 1: Justice Thomas is trying to push for a much more 133 00:08:04,080 --> 00:08:09,320 Speaker 1: immediate and radical approach. Neil, are there any other cases 134 00:08:09,440 --> 00:08:13,640 Speaker 1: this term that this Justice is decided not to hear 135 00:08:14,000 --> 00:08:19,240 Speaker 1: that might have been done to avoid controversy. Um, Off 136 00:08:19,280 --> 00:08:21,400 Speaker 1: the top of my head, I'm not. I'm not aware 137 00:08:21,440 --> 00:08:23,440 Speaker 1: of any. But there's still a lot of time for 138 00:08:23,480 --> 00:08:26,119 Speaker 1: those kinds of cases to go to the court. Um. 139 00:08:26,120 --> 00:08:30,200 Speaker 1: But I think you know, given its actions yesterday, should 140 00:08:30,240 --> 00:08:32,280 Speaker 1: any of them get there, they're going to do everything 141 00:08:32,320 --> 00:08:36,480 Speaker 1: they can to avoid to avoid deciding them. I think 142 00:08:36,520 --> 00:08:38,800 Speaker 1: for the next several years, they're going to do everything 143 00:08:38,840 --> 00:08:42,000 Speaker 1: they can to avoid deciding any case that would lead 144 00:08:42,000 --> 00:08:44,839 Speaker 1: them to side to row versus way. I want to 145 00:08:44,880 --> 00:08:47,679 Speaker 1: ask you a question about the way Justice Kavanaugh has 146 00:08:47,720 --> 00:08:51,800 Speaker 1: been asking questions in the various oral arguments. But I 147 00:08:51,840 --> 00:08:55,079 Speaker 1: noticed that a couple of times he has cited precedent 148 00:08:55,320 --> 00:08:59,160 Speaker 1: and the importance of precedents. Is he sending a message 149 00:08:59,360 --> 00:09:04,319 Speaker 1: by emphasizing precedent and that he'll follow precedent. Well, I 150 00:09:04,360 --> 00:09:07,840 Speaker 1: think he's trying to create that perception. But here's the 151 00:09:07,920 --> 00:09:10,480 Speaker 1: thing to keep your eye on, right. It's one thing 152 00:09:10,600 --> 00:09:14,160 Speaker 1: to not overrule a precedent, but it's also not that 153 00:09:14,240 --> 00:09:19,040 Speaker 1: hard to distinguish a precedent and turn in a different direction. 154 00:09:19,600 --> 00:09:25,480 Speaker 1: It's what Justice Roberts's mentor um Justice Renquist generally did. 155 00:09:25,960 --> 00:09:31,640 Speaker 1: It's also what Justice Kavanaugh's mentor, Justice Kennedy most frequently did. 156 00:09:32,040 --> 00:09:36,200 Speaker 1: Instead of forthrightly saying we're overruling a precedent, even once 157 00:09:36,240 --> 00:09:40,480 Speaker 1: they disagreed with like Miranda, instead of overruling it, they 158 00:09:40,480 --> 00:09:44,000 Speaker 1: would create exceptions to it and exceptions and exceptions, and 159 00:09:44,040 --> 00:09:48,120 Speaker 1: the exceptions would proliferate to the point where the initial 160 00:09:48,240 --> 00:09:53,040 Speaker 1: ruling was just completely hollowed out and as a practical matter, 161 00:09:53,440 --> 00:09:59,280 Speaker 1: completely ineffective. So it may be that Justice Kavanaugh will 162 00:09:59,679 --> 00:10:02,880 Speaker 1: not ever vote to over rule ro versus way that 163 00:10:03,000 --> 00:10:05,520 Speaker 1: it will stand as a precedent, but it will stand 164 00:10:05,559 --> 00:10:09,079 Speaker 1: as a meaningless precedent if it doesn't prevent the state 165 00:10:09,960 --> 00:10:13,560 Speaker 1: the states from adopting any restriction on abortion that they 166 00:10:13,640 --> 00:10:17,640 Speaker 1: might want that isn't an out and out criminal prohibition. 167 00:10:17,840 --> 00:10:20,400 Speaker 1: Are there any other cases coming down the pike in 168 00:10:20,440 --> 00:10:23,280 Speaker 1: the lower courts that may reach the Supreme Court on 169 00:10:23,400 --> 00:10:27,120 Speaker 1: an abortion issue. Oh? There, there are plenty of them percolating, 170 00:10:27,120 --> 00:10:29,200 Speaker 1: and they can come up in a variety of ways. 171 00:10:29,240 --> 00:10:32,200 Speaker 1: So there will be some cases out of states that 172 00:10:32,360 --> 00:10:37,199 Speaker 1: deal with restrictions on who can provide abortions, right, requiring 173 00:10:37,280 --> 00:10:40,439 Speaker 1: doctors to have admitting privileges, all those sorts of things 174 00:10:40,840 --> 00:10:43,800 Speaker 1: which are the kinds of restrictions that have made abortions 175 00:10:43,840 --> 00:10:48,000 Speaker 1: as a practical matter unavailable in states like Mississippi. Thanks 176 00:10:48,000 --> 00:10:50,440 Speaker 1: so much, as always, that's Neil Kincoffee's a professor at 177 00:10:50,520 --> 00:10:52,839 Speaker 1: Georgia State University College of Law.