The Volokh Conspiracy

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Did Justice Thomas Cover for Justice Barrett's Vote To Deny Cert To Reconsider TWA v. Hardison?

Only two justices dissented from the denial of cert in Small v. Memphis Light, Gas & Water.


On Monday, the Supreme Court denied cert in two Free Exercise Clause cases. First, Dalberiste v. GLE Associates asked the Court to reconsider TWA v. Hardison (1977). Second, Small v. Memphis Light, Gas & Water asked the Court to overrule TWA v. Hardison (1977). (Judges Thapar and Kethledge wrote about this issue on the 6th Circuit). The latter petition noted that three Justices had already called on the Court to reconsider that Burger Court precedent:

Three current Justices, the United States, and commentators across the spectrum have called for the Court to "consider whether Hardison's interpretation should be overruled." Patterson v. Walgreen Co., 140 S. Ct. 685, 686 (2020) (Alito, J., concurring in the denial of certiorari). As the three Justices recognized, Hardison's de minimis standard is not "the most likely interpretation" of "'undue hardship.'" Ibid.

In February 2020, the Court denied cert in Patterson. Justice Alito dissented, joined by Justice Thomas and Gorsuch. We can infer that Justice Kavanaugh was not willing to join that dissent. Had he been willing to grant, there would have been four votes. But presumptively, the three members of that dissental were ready to give Hardison a second look. But with Justice Barrett on the bench, Justice Kavanaugh need not be the fourth vote.

On Monday, Justice Gorsuch wrote a dissent of denial of cert in Small. He was joined only by Justice Alito. Here, Gorsuch and Alito called on the Court, again, to reconsider Hardison. But Justice Thomas did not join this dissent. What happened? I think we can draw a few reasonable inferences. Justice Kavanaugh was not willing to revisit TWA in Walgreen. I doubt he changed his mind. And Justice Thomas was willing to revisit TWA in Walgreen. I doubt he changed his mind. And Thomas is usually not bashful about voting to grant cert, even if he knows his position will lose. But by declining to join Gorsuch's dissental, Thomas made the math harder. Had the Patterson trio dissented, it would have been obvious that Barrett was unwilling to grant cert. But Thomas's decision not to join the dissental gave Barrett cover. It is tougher to count to 4. We cannot know for certain why the Court denied cert. Of course, I engage here in rank SCOTUS Kremlinology. But we have to take the scraps from the shadow docket as we can.

In any event, even if I am wrong about Thomas covering for Barrett, it is now clear that Barrett was unwilling to grant review in this case. The vehicle was perfectly teed up. Michael McConnell's name was on the cover. It was wrapped in a bow. I speculated about my concern back in December after several relists.  Yet here we are. The question has been delayed for another year, or longer. Perhaps the Court does not want to decide the Title VII issue because the Equality Act may pass. But that punt would be a very-Robertsian form of minimalism.

In his dissental, Justice Gorsuch addressed the Court's reticence:

Not even Mr. Small's employer tries to defend this stateof affairs. The company candidly acknowledges that Hardison "very likely is not the best possible gloss" on Title VII's language. Brief in Opposition 23. Two of the three judges on the panel below agreed, writing separately to explain their view that Hardison "rewr[o]te [the] statute." Small, 952 F. 3d, at 826–829 (Thapar, J., joined by Kethledge, J., concurring). Yet, today, this Court refuses evento entertain the question. It's a struggle to see why. . . .

There is no barrier to our review and no one else to blame. The only mistake here is of the Court's own making—and it is past time for the Court to correct it. 

Likewise, I am struggling to see why Justice Barrett failed to grant on this case. Truly. The case presented an easy statutory interpretation case, that was bolstered by the Free Exercise Clause. What is the holdup? Fear of Justice Kagan opening up another Janus-can- of-stare-decisis-whoopass? Come on.

So far, Barrett has yet to decide an important case on the regular docket. Yet, her actions on the shadow docket are putting her smack dab in the Roberts-Kavanaugh caucus. She declined to review the Pennsylvania election case. Her first published opinion was to rule against the houses of worship with respect to singing–and Kavanaugh joined this statement. Now, she refuses to revisit a Free Exercise Clause case that is woefully inconsistent with any textualist reading of Title VII. And, to date, the Court has not yet granted an abortion petition. Barrett could have provided decisive votes in each of these matters. But she hasn't. Pending on the docket are other petitions involving abortion, and the Second Amendment. We will soon see where Justice Barrett falls.

Update: I wrote that three justices dissented in Patterson v. Walgreen. That was incorrect. Justices Thomas, Alito, and Gorsuch concurred in the denial of cert. They would have revisited TWA in an appropriate case.