The Volokh Conspiracy

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The Court Punts by Granting Cert in Cameron v. EMW Women's Surgical Center

SCOTUS potentially keeps this case in limbo till 2025.


On June 2, 2020, a Sixth Circuit panel declared unconstitutional Kentucky's regulation of second-trimester abortions. At the time, June Medical was pending before the Supreme Court. Of course, the panel could have waited till the end of June to render its decision. We all knew the decision was coming. But Judges Clay and Merritt decided time was of the essence. In dissent, Judge Bush urged the panel to "delay issuing an opinion in this case pending the Supreme Court's disposition of June Medical Services."

After the panel issued its decision, the Secretary for Health and Family Services (a Democrat) declined to defend the statute. The Attorney General (a Republican) tried to intervene. But the panel denied the motion to interview. The Attorney General filed a motion for rehearing. Once again, the panel denied that motion.

On October 30, the Attorney General filed a petition for a writ of certiorari. The petition presented two questions:

1. Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.

2. And if so, whether the Court should vacate the judgment below and remand for further consideration in light of June Medical.

The case was distributed for the March 19 conference, and was relisted for the March 26 conference. Today, the Court granted cert only on the first question presented. In other words, the Court will decide if the Attorney General could intervene.

The case likely will not be decided until June 2022. By granting cert, the Court has managed to keep the status of the abortion law in limbo for about more 15 months. If the Court rules against the Attorney General, then the case is over. And the Court will never decide if the Kentucky law survives June Medical review. But if the Court rules that the Attorney General can intervene, the case will go back to the Clay/Merritt panel. And, if history is any guide, the Attorney General will lose by late 2022 or early 2023. At that point, the Attorney General can seek rehearing en banc. A favorable decision may be had from the en banc court at some point in late 2023 or early 2024. No doubt, a cert petition will follow. And by that point, the Supreme Court may have 11 members. And in June 2025, Chief Justice Vanita Gutpa will write the majority opinion upholding the statute.

This statute was enacted in 2018. Because of the Supreme Court's cert grant, this law could remain in limbo for 7 years. Nothing prevented the Court from granting cert on both questions. If the Court found the Attorney General could intervene, the Court would not need to decide the merits issue. But if the Attorney General could intervene, the merits question was teed up.

In December, I identified a taxonomy of four types of Supreme Court punts. Today's order is a new one for me. Here, the Court granted cert on a procedural question, to delay ruling on the merits question. At least 6 Justices did not want to touch the second issue. If Justices Thomas, Alito, Gorsuch, and Kavanaugh/Barrett were ready, the Court could have granted cert on the second question. I half expected to see Thomas dissent, and say he would have granted both questions.

Now, there may be some strategery here. Perhaps the Court will grant one more abortion case next term that will clarify the scope of June Medical. (It surely isn't Dobbs). Thus, the Court could rule for the Kentucky Attorney General, and remand in light of the new abortion precedent. But if the Court does not decide any abortion cases in OT 2021, the Kentucky issue could linger past the next presidential election.

NEXT: Biden Administration Extends CDC Eviction Moratorium Until June 30 - the Legal Battle Over it Will Continue

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  1. I'm in a really sarcastic & cynical mood, and I emphasize that.

    But perhaps the solution here is to have police officers simply shoot (and kill) those doctors who are performing these abortions. They can claim "resisting arrest" or whatever, and they can hide behind sovereign immunity or whatnot.

    And as doctors aren't stupid, after the first 10, 20, 100 are killed with total impunity -- BLM won't care about the death's of White males -- the rest will understand that they can either comply with the police mandate -- or die.

  2. Probably true...except it may be Chief Justice Gupta writing a majority opinion for a 15 member Supreme Court.

    1. No, I don't think so.

      Team Bite Me realize just how tenuous a position they are in -- and their calling out the National Guard the way they did makes me wonder if they know more than we do.

      Court packing ain't gonna make it. Too many Democrats have too much to lose, including Liz Warren.

      1. Being in a tenuous position can either cause somebody to be cautious, or to double down. All the evidence I've seen so far says to me the Democrats are in a doubling down mood, or at least the people at the controls are.

        Now, their majority is razor thin, so maybe the cautious minority can prevail by denying the hotheads a legislative majority. But the Democrats have always, in my experience, been able to pull the party together when it counts, either by bribes or threats.

        I've never been able to forget the way, in '94, they managed to get NRA board member John Dingel to vote for the AWB. Which legislation he himself had denounced. Not just him, but a fair number of Democratic members of Congress were, somehow, persuaded to fall on their swords and commit political suicide. Clinton literally thanked them in a speech for sacrificing their seats to get it passed!

        The Democratic party has terrifying vote discipline when something is important to its leaders.

        If they were to view Court packing as a step in political entrenchment that would actually save those seats, the pressure they could bring to bear would be nothing to sneeze at.

        And, as I've pointed out, they don't need perfect vote discipline in the House or the Senate, if they're willing to be ruthless, and hold the vote without warning, when fewer members are present. It would be political dynamite, but that's baked in if they're considering Court packing, and they clearly are considering it.

        1. Two Points :

          (1) It always amuses me two see partisans of one side - left or right - insist their opponents are more focused, ruthless, disciplined, intractable, united, etc. Try this experiment : Have someone open comment sections full of this drivel while your back is turned, then try and guess which end of the political spectrum you're looking at.

          You can't, because they both say EXACTLY the same thing - each with the same mix of disgust & admiration at the pure evil efficiency of their foes. In this case it's doubly hilarious to have Brett complain his enemies are intractable & inflexible partisans, willing to abandon any ethics for their team. Brett !! Saying that !!!!

          (2) Still, no one can rival the Right for political discipline on the issue of abortion. Just consider the skill involved : If they ever actually managed to impose sharia law on the rest of us, the voter's wraith would drop on their heads like a ton of bricks. They know it. But not just that: They'd also lose many core single-issue voters. Yet still they manage to keep the jihad machinery humming year after year without ever arriving anywhere. Damn it, but that's discipline......

          1. The Republicans had the White house and a legislative majority just 3 years ago. Remember the anti-abortion law they passed on a party line vote?

            No, neither do I. I don't recall ANYTHING passing on a party line vote. Democrats pass big things on party line votes all the time.

            "Both sides do it!" has more sting when it's true.

          2. Yes, partisans always view the opposition as having incredible discipline and tenacity.

            We have to remember that our opposition consists of people. We share the same strengths and weaknesses. And we are all manipulated by politicians.

            1. My point is that there's actual data here. It's easy to point to bills Democrats passed, fairly controversial bills, on party line votes. Gun control bills in the 90's. Obamacare. The recent stimulus package.

              Where are the Republican counterparts, if both parties are equally disciplined? Maybe I'm just overlooking them, and you can provide a list.

              1. The Tax Cuts and Jobs Act did not have a single Democratic supporter.

                1. Hurrah, we have somebody who's actually bothering with evidence!

                  The House vote, 227 Republicans for, 12 Republicans and 191 Democrats against. 2 Democrats not voting/absent.

                  House vote, reconciliation, 224 Republicans for, 12 Republicans and 189 Democrats against. 3 Republicans and 4 Democrats not voting/absent.

                  Edge in party discipline? The Democrats.

                  Senate, 51 Republicans for, 1 Republican and 48 'Democrats' against.

                  Edge in party discipline? The Democrats. Though I'll call that a close tie.

                  And that's one bill in 4 years. Got any more? Because Democrats have matched that in the first few months of Biden's administration.

              2. How many half-baked (young and/or unqualified), Trump-nominated judicial nominees were confirmed by Republicans with 52 or fewer votes?

                Something appears to be interfering with your memory or perception.

        2. I’ve never been able to forget the way, in ’94, they managed to get NRA board member John Dingel to vote for the AWB. Which legislation he himself had denounced. Not just him, but a fair number of Democratic members of Congress were, somehow, persuaded to fall on their swords and commit political suicide. Clinton literally thanked them in a speech for sacrificing their seats to get it passed!

          Setting aside the rest of your stupidity, John Dingel clearly committed political suicide, since he was only able to serve in Congress for another twenty years after that vote. (Which was for the crime bill, not the AWB.)

          1. Dingell lost his NRA board seat, he was in a Democratic enough district to survive otherwise. Many Democrats were not as fortunate, which is why control of Congress switched hands.

  3. About "At least 6 Justices did not want to touch the second issue." Or five Justices did not want to make a major change to abortion law and the court did not want to waste its time setting up a 5-4 decision with minimal precedential value. A 5-4 vote to abolish the penumbra would be huge. A fractured 5-4 decision on whether a state can make second trimester abortions more difficult but not quite illegal is not a good use of the court's time.

    1. John,
      But, if your speculation is correct, and there are 5 Justices who don't want to waste their own time; that means that there were 4 super-conservative Justices who *were* willing to waste the court's time. (Using your own terminology, for argument's sake.)

      All you need is 4 Justices, to get the case to the Sup. Ct, right?

      I did think it was weird that they could not get 4 of the 5 far-far-far-right Justices to do this. That's worthy of being pointed out and discussed. I don't believe any of the batshit-crazy or loopy conspiracy theories that have been (and, undoubtedly, will be) thrown out here by the usual suspects. But it is odd . . . .

      1. I think justices, ideally, should not regard resolving a case as a waste of their time.

        1. There is an opportunity cost. Only a limited number of wrongs can be righted, a limited amount of judicial activism dispensed.

          1. And they are taking an historically high number of cases these days, such that they have to be careful about their workload?

            No, they're not. The number of cases they've been taking has been declining for years.

            Opportunity cost is only an issue when you're using the opportunity for something else, not when you're wasting the time you save.

  4. The Supreme court should not rush to decide questions, but it shouldn’t unnecessarily delay either.

    My best guess of the situation is that if legislatures pass a law that simply defies past decisions in the hopes of getting them overturned by a new majority, a block of Supreme Court institutionalists, Roberts of course, likely Kavanaugh, and perhaps Barrett, will keep things in play, using procedural tactics much like this, to send a message that outright defiance of the Court will not be rewarded.

    Instead, what state legislatures need to do to get things past the Court is to do something incremental, and something new not covered by past decisions, that they the Court can then present as consistent with past precedent while slowly rolling the impact of past precedent back.

    It’s a message that Roe v. Wade isn’t going to be overturned in one quick decision, change will occur in an orderly fashion, and legistatures are going to have tune in to the alternative approach.

    And why might Barrett and Kavanaugh go along? Perhaps they agree with the institutionalist philosophy. Alternatively, perhaps it means Justice Thomas is going to retire soon, and Roberts has told Barrett and Kavanaugh that if they vote to overturn Roe, he will vote to reinstate it the minute Biden appoints Thomas’s replacement, so unless they go along with the no-defying-the -Court incremental approach, there will be no rolling back at all.

    1. The problem with that approach to past rulings that really should just be overturned, is that you get baroque work-arounds that way, not straightforward readings of the text.

      Like, they didn't want to just overturn the Slaughterhouse cases, so we ended up with incorporation via 'substantive due process', with all sorts of distorting effects such as piecemeal incorporation, instead of just straightforwardly incorporating via P&I as the drafters made no secret of intending.

      If you eventually get around to rendering Roe 'inoperative' without actually overturning it, the result is likely to be a confusing mess.

      1. Roe inoperative? Democrats would enlarge the Supreme Court before or shortly after any ruling rendering Roe inoperative.

  5. That said, it seems to me that the question of whether a state attorney general can intervene to defend a state law is solely a question of state law, and if the Kentucky Attorney General is right that Kentucky’s laws give him this power, I don’t see how federal courts could refuse it.

    Otherwise collusive lawsuits would be incredibly easy. Activist groups seeking to overturn laws wouldn’t merely get to pick their plaintiffs. They would also get to pick their defendents. You simply sue any state official, or even a private party, who happens to also disagree with the law and is willing to give it no or maybe a hollywood-code defense (that is, go through the motions of a defense for show while avoiding the sorts of arguments and actions someone interested in winning would make.) Or they simply settle and agree that the law will be struck down.

    Allowing federal courts to be the facilitators for these types of shenangans would go completely against not just Justice Roberts’ institutionalism, but I think most of the other Justices as well. I suspect the court would be near-unanimous the attorney general of a state can intervene when the constitutionality of a state statute is challenged. A state has a right not just for its statutes to be defended, but to decide who it wants to defend them.

    It would be a radical infringement of state sovereignty for federal law or the discretion of federal judges to let plaintiffs, or federal judges, decide which individuals they choose to do something as fundamental to a state’s autonomy as the defense of its own laws. Federalism and state sovereignty means a state has the right to choose that.

    States rights mean the state gets to pick its own lawyer, just as individual rights mean individuals get to pick theirs.

    And in many if not most states, the state’s top lawyer is the attorney general. A state law that authorizes a state attorney general to intervene to defend state laws is fully consistent with federalism. The 10th Amendment’s reservation of powers to the several states demands that federal courts honor it and permit the intervention.

    1. Yes, this seems like a very interesting/important question. Even though a controversial abortion case is the vehicle, this doesn't seem like a "punt" of the abortion topic; it's actually trying to grapple with a separate issue that is also important to resolve.

      Plenty of other states that don't have a party split between the governor and attorney general have passed restrictive abortion laws recently, so if the court wants to take up the abortion question there's cleaner vehicles that allow them to do so.

  6. Democrats like the idea of walls when they surround DC and protect the elites. Protecting borders - well that is racist or something....

    We can also use the National Guard to man the walls in DC that protect the elites, but on the borders - well that is racist or something....

    1. "Hi, I'm Jimmy the Dane. I can't tell the difference between people coming to the U.S. for jobs and people coming to the Capitol to attack the people there."

  7. If the Justices find the Kentucky Attorney General’s claim that he is entitled to intervene as a matter of state law dubious or disputable, perhaps they could certify the issue to the Kentucky Supreme Court. After all, whether a state official’s opinion about the scope of his own powers under state law is entitled to any deference is itself a matter of state law.

    Whether the Justices are motivated by an interest in punting or not, this would have the effect of adding an additional step to the timetable laid out by Professor Blackman, with additional time needed for the Kentucky Supreme Court to hear the case, decide, and return its decision to the US Supreme Court.

    1. My understanding (not having read the case) is that it was his timing at issue, not his authority. So it's not suitable for certification, which generally I agree is a useful way to punt. Meanwhile, there is plenty of time for someone to bring a case under the kentucky state constitution. If that case were filed in federal court (along with at least 1 federal claim) it would then be appropriate to certify to the kentucky supreme court, which could end up mooting the scotus case. KY is not on the bleeding edge of state con law, but wasson v kentucky is the sort of precedent one could point to.

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