The most significant developments in the past year suggest a potent originalist future.
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.