Diverging Supreme Court Trends May Leave Some Conservatives Out In the Cold

The replacement of Justice Anthony Kennedy was an opportunity for a different kind of Supreme Court, much to the delight of many conservatives and the dismay of many liberals. But December 10, 2018 may be the day that showed us that the Supreme Court of the future may not be the one that all conservatives longed to see.

On that day, the Court considered two cases that addressed concerns long deemed problematic by conservatives. The first was a case that could reconsider the deference federal courts give to federal agencies when the agencies are interpreting their own regulations. The second was a case that could have clarified that federal courts cannot imply a cause of action in a federal statute for private parties when Congress has not expressly done so.

Both cases sound dry. The Court chose to hear one and not the other. And in its decision to do so, it suggested that the Court’s newly configured membership may eschew the concerns of social conservatives.

Deference to Federal Agencies

The first case, which the Court agreed to hear, concerns a doctrine known as Auer deference. Many are familiar with Chevron deference, a doctrine arising from a 1984 decision. There, the Court concluded that courts should defer to reasonable federal agency interpretations of law when the statute is ambiguous. That doctrine remains controversial, but it at least has a sensible theoretical underpinning: when Congress leaves an ambiguity in a statute, it might expect the agency in charge of administration the statute to resolve that ambiguity. Again, this justification remains contested, but it at least explains why deference exists.

Auer deference, named after a 1997 decision (sometimes known as Seminole Rock deference after a 1942 decision), is another thing altogether. Federal agencies promulgate regulations through a notice-and-comment period, a time-consuming process that gives the public—and regulated entities—an opportunity to weigh in on a regulation that has the force of law. If an ambiguity arises in that regulation, one would expect the agency to go back through the onerous process to clarify what the regulation means, rather than simply interpret what the regulation means and receive deference in courts when challenged.

Auer is a more controversial proposition than Chevron, and on December 10 the Supreme Court agreed to hear Kisor v. Wilkie to address this precise issue. There is much to read about the debate over Auer deference, so I’ll avoid a more nuanced discussion about its merits.

But it is worth mentioning that the administrative state is a longstanding and frequent target of those concerned about the separation of powers. Consider the Federalist Society’s National Lawyers Convention, which centers on a theme. In 2018, it was “Good Government through Agency Accountability and Regulatory Transparency.” In 2017, it was “Administrative Agencies and the Regulatory State.” Auer is one piece of the separation-of-powers concern. It is unsurprising, then, to see the Supreme Court taking up the issue.

Judge-Made Causes of Action

The second case, which the Court chose not to hear, concerned implied private causes of action. When Congress enacts a statute, it often expressly creates a way for individuals harmed under the statute to file a lawsuit. That’s a private cause of action. Congress may want individuals to be able to sue under a statute, to seek monetary damages or injunctive relief to compel someone to do or to refrain from doing something.

But Congress doesn’t always create private causes of action. Congress may prefer the President or federal agencies to enforce the law, which can provide uniformity and prevent piecemeal litigation.

This determination ought to be a simple matter of statutory interpretation. But by the 1960s, the Warren Court began to expand “implied” causes of action for private parties in statutes. The Court would look at a statute and determine whether allowing individuals to sue would advance the goals of the statute, even without express approval from Congress. The Court later rephrased this test as one of discerning the intent of Congress.

But Congress passes statutes, and Congress provides the remedies in those statutes. Implied causes of action were judicial fictions to suggest that Congress intended to create such actions without using the words to do so. That raises a bicameralism and presentment problem—laws go through both houses of Congress and a presidential signature, so tacking on unwritten implications raises concerns about how laws are made. The Court always couched this implied causes of action inquiry as one of furthering Congress’s intent. But what better indication of intent could there be than the very text of the statute?

In 2001, the Supreme Court started to trim back on these implied causes of action. In Alexander v. Sandoval, Justice Antonin Scalia wrote an opinion emphasizing that the Court would focus on the text of the statute and not on greater purposes that judges deemed wise. In a memorable turn of phrase, Justice Scalia wrote, “Having sworn off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to have one last drink.” The text and structure of the statute answered the inquiry—no express cause of action meant that the private plaintiff was out of luck. In a follow-up case in 2002, Gonzaga University v. Doe, the Court reaffirmed this approach.

Implied causes of action, like Auer deference, reflect a longstanding separation-of-powers concern. And on Monday, the Supreme Court had the opportunity to shut down the “implied” cause of action and this hunt for unexpressed congressional intent. It could reserve rights of action to those expressly or necessarily implied in the statute, a domain of Congress, not the courts. (The necessarily implied is a caveat that even Justice Scalia acknowledged was appropriate in his book with Bryan A. Garner, Reading Law: The Interpretation of Legal Texts—those situations where the text itself acknowledges the existence of a private cause of action.) But the Court refused to take this case.

The Abortion Question

It only takes four justices to agree to hear a case. Given that three justices—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—joined a dissent, the other six justices on the Court—including Chief Justice John Roberts and Justice Kavanaugh—did not agree to hear the case. Why wouldn’t the same justices who agreed to reconsider Auer deference also join the Court to reconsider implied private rights of action?

Justice Thomas listed important hallmarks that made this case worth of being heard before the Supreme Court. Lower courts had divided on the issue as to whether Medicaid recipients have a private causes of action to contest State determinations of which Medicaid providers are “qualified” under federal law. Panels of judges issuing decisions divided, with recurring dissenting opinions. One such opinion finding no private right of action came from the Eighth Circuit and was written by Judge Steven Colloton, one of the eleven candidates Donald Trump first listed as prospective Supreme Court justices.

Then again, Justice Thomas suggested there was a clear reason why there weren’t four votes to hear the case: “I suspect,” he writes, “it has something to do with the fact that some respondents in these cases are named “Planned Parenthood.’” And perhaps the answer comes from the caption of the case: Gee v. Planned Parenthood of Gulf Coast, Inc.

It might be that both Chief Justice Roberts and Justice Kavanaugh didn’t want to take a hot-button abortion case. For Justice Kavanaugh, proponents of his nomination wrote on the topic of abortion and assured that he would be “rock solid” on issues for social conservatives. But Justice Thomas’s observation suggests that Justice Kavanaugh is less “solid” than advertised.

It could also be that one of these two justices expressed reservations about the case, which suggested that there weren’t five votes on the merits. While it takes just four votes to hear the case, it takes five votes to win—and perhaps one of them chose not to grant certiorari to ensure that case didn’t come out the wrong way and enshrine implied private causes of action. Then again, what’s the worst that could happen? Most circuits have already found an implied private cause of action for Medicaid recipients. A Court ruling that affirmed that view would have little impact.

All this is speculation. Perhaps Chief Justice Roberts and Justice Kavanaugh believed this case was the wrong vehicle to address implied private causes of action. Perhaps it was the wrong moment in time to address abortion in their judgment. Perhaps this is a prudential moment from the justices, a strategic decision to refuse to wade into a contested controversy at this moment.

Then again, Senator Susan Collins, a crucial vote in the confirmation hearings for Justice Kavanaugh, and a defender of the right to abortion, felt “vindicated” after learning that the Court would not hear the Medicaid case involving Planned Parenthood.

But frustratingly, as Justice Thomas explained, Gee, at its core, wasn’t even about abortion. It was about implied private causes of action, and it only by chance affected abortion in this particular case. Indeed, Planned Parenthood might ultimately be right on the merits—it simply cannot contest the merits as a private litigant in a federal court because the statute does not authorize it to do so. If cases that even by happenstance affect abortion are too hot for Justice Kavanaugh right now, one wonders when the right time, if ever, will be.

Many self-proclaimed pro-life conservatives have been reluctant supporters of President Trump because of the perceived importance of the federal judiciary, particularly the Supreme Court, and especially when it comes to the topic of abortion. The Senate has been little more than a human resources agency, and as long as it continues to confirm judges, social conservatives have been along for the ride—sometimes loudly in support, and other times in silent observation.

But December 10, 2018, revealed something about the Court. It will be conservative in some ways. It took up a case like Kisor regarding Auer deference, a matter that doesn’t touch on social issues, the kind of issue that Rockefeller Republicans or Country Club Republicans or libertarians might support. But it wouldn’t take up Gee, another run-of-the-mill rule of law and separation of powers case that only incidentally involves abortion, a case that has the potential to offer the most modest of victories for social conservatives.

While it of course remains too early to tell, and while there of course remain alternative explanations, that date remains one worth reflecting upon as the Court continues on, leaving, perhaps, social conservatives behind.

Reader Discussion

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on December 20, 2018 at 08:37:05 am

The erroneous notion that private morality and public morality can serve in opposition to one another and are not omplementary, has led to grievous error in both Faith and reason.

Abortion, the intentional destruction of the life of a son or daughter residing in their mother’s womb, due to the denial of that particular son or daughter’s personhood, is, like slavery, a Human Right’s Issue, not a State’s Right Issue.

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on December 20, 2018 at 08:47:45 am

Tea leaves. https://amgreatness.com/2018/12/13/kavanaugh-too-soon-to-be-reading-tea-leaves/

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Mark Pulliam
on December 20, 2018 at 08:48:13 am

That should read:

The erroneous notion that private morality and public morality can serve in opposition to one another and are not complementary, has led to grievous error in both Faith and reason.

Abortion, the intentional destruction of the life of a son or daughter residing in their mother’s womb, due to the denial of that particular son or daughter’s personhood, is, like slavery, a Human’s Right Issue, not a State’s Right Issue.

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on December 20, 2018 at 09:55:19 am

God put Brett Kavenaugh on earth first and then Trump supporters put him on the Supreme Court, so far as Trump supporters care, for one reason and only one reason, to overturn Roe and Casey.

Doubts arise about Justice Kavenaugh fulfilling his supranatural and worldly destiny from reading numerous of his C of A opinions, some of which show undue deference to stare decisis and little boldness of mind but most of which reflect a collegial temperament, the desire to get along, which in Washington decision-making circles usually implies the "go along" corollary. That Roberts reflects all of these characteristics in his decision-making, especially NFIB vs Sibelius, merely increases doubt about the ultimate deaths of Roe/Casey.

Doubt became fear when Senator Collins declared that she would vote against any nominee who "showed hostility" to Roe, after which Kavenaugh (allegedly) assured Senator Collins both of his opinion that Roe is "settled law" and of his support for the previously-enunciated Roberts' doctrine, i.e., Roberts' needless and needlessly broad declaration during confirmation that Roe is “settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes..."

Finally, one's Kavenaugh/Roberts doubts became anxiety-in-need-of-medication when Senator Collins, giving what is likely the best speech of her dismal Senate career, threw the drowning judge a lifeline and literally assured Kavenaugh that he would be confirmed, her lifeline speech a dramatic rhetorical step above and beyond the call of political duty and Party loyalty, a step so far that it might strike a swamp-dwelling realist as reflecting a tacit quid pro quo understanding between her and the judge.

That several lower court decisions affirming a private right of action under Medicaid involved Planned Parenthood must surely be seen as evidence that the nation's most lucrative abortion factory relies on private right of action Medicaid litigation to shore up the flanks of abortion rights, now under relentless assault on all sides by the Right. That Justice Thomas, the Court's most assured voice against Roe and Casey, expressly referenced Planned Parenthood as the likely reason for the denial of cert is the gasping canary in the coal mine signaling that the atmosphere has changed for the worse.

Together, all the evidence is ominous: 1) Roberts' confirmation statement about Roe/Casey before the Senate Judiciary Committee, 2) Senator Collins' threat to veto a Roe opponent and her extraction both of Kavenaugh's endorsement of the Robert's declaration and of Kavenaugh's"settled law" confession followed by 3) her Senate speech/lifeline to the drowning judge, 4) Planned Parenthood's notable involvement in right of action cases, 5) Senator Collins' expression of pleasure and Justice Thomas' expression of dismay that the Court denied cert, and 6) the denial of cert accompanied by the unusual addition of written dissent ( all the more noteworthy for its irritable expression.)

THIS Court is very unlikely to overturn Roe/Casey as it is hoped and expected to do by constitutional conservatives and Trump supporters. The determining votes are Roberts and/or Kavenaugh, and at least one of them is opposed to overturning Roe/Casey. If both are conjoined on the fundamental right to abortion on demand as stare decisis, there is no hope and THIS Court will not even rule on any existential challenge to Roe/Casey. If either is for reversal, precedent be damned, no existential challenge will be accepted by THIS Court and Roe/Casey's fate must await the death and replacement of Justice Ginsburg and/or of Justice Breyer, neither of whom will retire while Trump or Pence is president.

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Pukka Luftmensch
on December 20, 2018 at 10:55:46 am

Excellent commentary above. My contribution is more mundane: Roberts and Kavenaugh are wine and cheese justices. They want to be well thought off by the belt-way elites, and will decide cases accordingly. Kennedy, a wine and cheese justice himself, put Trump in a bind. He would retire, but only if Tump appointed someone like himself to take his place; and trump did. The Bush's love Kaenaugh too. Any other evidence needed? I hop I am wrong, but don't think so. Roberts and Kavenaugh are two peas in a pod and will dominate the court for years.

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Mike Jankanish
on December 20, 2018 at 11:30:56 am

“They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment.”


From the moment of our conception, when each one of us are created and brought into being, In The Image and Likeness of God, The Most Holy And Undivided Blessed Trinity, as a reflection of Love, equal in Dignity, while being complementary as a beloved son or daughter, Willed By God, worthy of Redemption, our inherent unalienable Right to Life, to Liberty, and to The Pursuit of Happiness exists.

To segregate a particular group of innocent sons and daughters residing in their Mother’s womb, and deny them their inherent Right to Life, upon which their Right to Liberty and The Pursuit of Happiness depends, is a violation of The Equal Protection Clause of The Fourteenth Amendment.

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on December 20, 2018 at 12:13:29 pm

While you note that "[t]here are many possible reasons" for denying cert, you note the case was "fraught with political implications," which, I think, is cold comfort for the precise reasons I raise in my piece. (We agree, of course, that political concerns may well have been the reason for Kavanaugh's decision.) Also, you note, "We don’t know why Kavanaugh didn’t join his colleagues," which, while true, seems a less impressive conclusion when read against Thomas's "unusual" commentary--for, of course, Thomas knows more than we know and chose to make a "not-very-collegial" dissent weeks into Kavanaugh's term on the Court. Finally, the failure to act is an decision, even if it may not be accompanied by reasons. I see no concern in spending time thinking about (with significant caveats--my piece is hardly sky-is-falling stuff) the implications of the decisions of the Court without calling such thinking "tea leaves" or "tarot cards," and particularly to keep it as a (not *the*) data point that, of course, will be supplemented in the decades to come.

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Derek Muller
on December 20, 2018 at 12:59:23 pm

From a non-lawyer perspective: The Supremely Political Court. "We are under a constitution but the constitution is what the judges say it is." Over the generations, the Court's Members have varied from liberal to archconservative. However, by class background, professional training, and political selection, the judges have more commonly identified with the....

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on December 20, 2018 at 13:00:52 pm

Not AnthonyK but Anthony

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on December 20, 2018 at 13:15:16 pm

I hope that Mark Pulliam is correct and that it is either too early too read the tea leaves or that we have not been provided all of the leaves for study.


"Woah, the price you pay, oh, the price you pay
Now you can't walk away from the price you pay" - Springsteen

I argued during the confirmation "show" that the secondary aim of the Leftist mobs screeching at the barricades was to so emasculate Kavanaugh that he would think long and hard about ruling against any / all womens issues.
The actions / speeches of that reprehensible little Senator from Maine lends credence to the assertion that Kavanaugh both recognized and agreed to "the price." Indeed, there need not have been a specific quid pro quo - only an understanding.

I still hope I am wrong BUT Justice Thomas' rather unique certiorari *dissent* would indicate that something more than a simple prudential decision to wait for a more appropriate case was operative.

Then again, it may be that Kavanaugh, like Roberts, is not only unmindful of the price he (they) pay but actually welcomes it as the price is offset by the "vindication" that Collins expresses. I read "vindication" to mean that Kavanaugh is not only capable of *growing* but is a rather precocious *grower*.

Still, in this instance, I agree with The Boss:


Most disheartening if Kavanaugh continues to *grow.

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on December 20, 2018 at 16:15:23 pm

The matter is far more than reading tea leaves. Rather it's reading the writing on the wall. The denial of cert means that either or both Kavenaugh and Roberts is not (yet) prepared to reverse Roe and Casey. Otherwise cert would have been granted. The only other explanation, given in that lame "tea leaves" article (by the normally sober AG) is that the case did not present a good vehicle for addressing the Medicaid/implied private right of action issues. Yet, for several reasons it's hard to imagine a better case for addressing that matter: 1) The Medicaid statute is not ambiguous as to Congressional intent, it neither expressly nor implicitly authorizes private enforcement litigation; 2) an implied right of private litigation as a means to advance the Medicaid purpose/goals of Congress comports with the Breyer "purposivism" school of constitutional and statutory interpretation but not with the "textualism" that, ostensibly" is the approach favored, now, by at least 4 members of the Court all four of of whom could have granted cert in Gee and advanced their textualism agenda; 3) an implied right of action for Medicaid matters is a terrible financial and administrative burden on the federal and state governments and on the Medicaid system, itself, ( all three already badly financially-strapped and administratively-overburdened) because of the very high transactional costs of litigation, the needless expansion of the number of cases brought against the states and the added financial burdens that occur when the courts rule in favor of rent-seekers and expand Medicaid coverage. 4) The Courts of Appeals are divided on the Medicaid question, which, thus, raises a national conflict on very important, very costly constitutional and statutory matters. Heretofore, such conflict, division and cost have constituted textbook reasons for granting cert. 5) While other federal statutes may also raise implied private right of action issues, I can think of none other in which the matter is of greater financial and constitutional significance than it is with Medicaid, involving as it does a) Congress'(rather than the judiciary's) control of the nation's spending and b) the states' powers under federalism to control their Medicaid budgets, rather that private, special-interest litigants with rent-seeking objectives cajoling Leftist judges, as they did to start this mess in the first place, to join them as social justice warriors and "just do the right thing."

I lost an implied "right of action" case of first impression years ago in the First Circuit when the court raised sua sponte during oral argument a matter not argued below as to whether 1) a Congressional ban on the use of federal funds for a specific purpose in a specific location in Puerto Rico combined with 2) a Presidential order entered at the behest of and as part of an official agreement with Puerto Rico prohibiting such spending, 3) both enacted for the express benefit of Puerto Rico as third part beneficiary 4) created an implied right of action for the Commonwealth to challenge the unlawful spending by the federal government that was uncontested as being in violation of the Congressional ban and the President's order.

The First Circuit judicially-fabricated a denial of a right of action that, while not "express," was surely both intended and "implied" by any measure of statutory interpretation and that was undertaken to enjoin federal spending that was held to be unlawful by the trial court, a finding of law that was uncontested in the District Court and the Court of Appeals. Yet, without opinion, the Supreme Court denied cert in the case, leaving on the books an awful precedent against implied right of action where it was intended and served constitutional, statutory and Executive Order purpose. Last week the Court denied cert and left standing a bunch of similar awful precedents by several Courts of appeal. We might call the recent case "Gee Whiz."

The Court needs to start getting more right than they get wrong. For decades the reverse has been the case.

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Pukka Luftmensch
on December 20, 2018 at 17:10:47 pm

To be honest, the only non wine and cheese justices are Alito and Thomas. It was evident during the oral arguments for masterpiece cake shop- all the other justices kept creating hypotheticals involving gourmet chefs, and Alito said something to the effect of ‘Am I the only one here who eats at Pizza Hut?’ Almost all are part of ‘the elites’ as Thomas calls them

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Cj wolfe
on December 20, 2018 at 17:12:12 pm

Do you mean "sua sponte" or "et condicionum ac iudiciorum propositos asinum"

There is much that is concealed beneath those billowing Black Robes.

BTW: Here is something from Mark Pulliam mentioning the anticipated (by the left) Greenhouse effect, otherwise known as *growth, on Kavanaugh whilst Mark visualizes a potential Pulliam effect.

I am rooting for Mark!

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Image of gabe
on December 20, 2018 at 17:20:02 pm


Here is something to get your blood boiling:


wherein it is revealed that Planned Parenthood, that great and wondrous provider of womens "health" services DISCRIMINATES AGAINST THEIR OWN PREGNANT EMPLOYEES.

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Image of gabe
on December 21, 2018 at 16:13:08 pm

And this just in:


We may have questions about Kavanaugh BUT there is no denying where Chief John "I changed my mind on mandates and taxes" Roberts stands.
Once again, he sides with the Leftists. This time on immigration and asylum.

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on December 21, 2018 at 16:56:56 pm

OH My!

Eisenhower did the worst vetting of all time, that of Warren and Brennan who wrote fiction and called it law; Nixon then of Blackmun who fabricated facts to suit his abortion sympathy, while Ford gave us Stevens from La La Land; Reagan his O'Connor (not good sometimes) and Kennedy(not bad sometimes), GHWB his always awful Souter and W Bush "go figure" Roberts.

Dem's always vet extremely well. I can't think of one regret they've had since they started packing the Court with ideological madmen during FDRs reign of judicial terror.

Maybe Republicans should outsource the Supreme Court selection process to a head hunting firm.

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Pukka Luftmensch
on December 28, 2018 at 10:13:19 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.