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.

NEXT: In Terry v. United States, SCOTUS Grants The SG's Motion For Leave To File A Brief Out Of Time For First Time In Four Decades

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  1. You know you’re allowed to not post, right?

    1. Seriously, it’s like he doesn’t understand the difference between blogging and tweeting.

      1. Seriously, you are a lawyer, and everything that implies.

  2. Seems like the Federalist society wasn’t such a good source for a short list, after all. At least that’s what I’m drawing from this.

    1. ‘We can’t win, especially not in modern America’ might be another one to ponder.

      1. We’re all slaves now, and you can thank modern America for that.

        1. Can’t use vile racial slurs without consequence anymore, can’t engage in bigoted voter suppression without consequence anymore, can’t get applause for treating gays like dirt anymore, children getting school lunches for free, can’t abuse Asians without consequence anymore, gays can get married, children taught evolution but not led in prayer in school anymore, black men no long required to lower their gaze in the company of respectable white women . . . modern America is a flaming hellscape (for some people).

          1. All diversity is denial of reality. All PC must be cancelled. This nation will never turn into a permanent one party Dem state without violence.

    2. Why would you think that the Federalist Society is in lockstep with you opinions?

    3. Gorsuch has been great. But Kav and Barrett have been disappointments. They will be like mini-Roberts, failing to do their jobs and protect the people. Because the people are icky and their nice socialite friends don’t like them.

  3. “Her first published opinion was to rule against the houses of worship with respect to singing–and Kavanaugh joined this statement.”

    Ok, this is really, really, disingenuous. She said it wasn’t in the record, and ruled in favor of the churches. If something isn’t in the record it isnt in the record. That doesn’t tell you anything.

    1. And she implicitly supported Kavanaugh’s most-favored class Free Exercise doctrine which I think would have the effect of reversing Smith

      Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.

      As a side note, the above use of “of course” is a pet peeve of mine. It’s usage reads “of course (you idiot),” which is no way to persuade people. I think it should be reserved for things like “of course you are correct about [some detail], but nonetheless you are wrong about [the overall conclusion].”

  4. Perhaps some justices are particularly fond of the number nine, and recognize that a period of precedent-shattering, against-society’s-grain judicial activism might promote interest in another number?

    Or perhaps the conservatives recognize they have substantially less ammunition that others believe, and are therefore choosing their shots with care, to avoid (or delay) being overrun by superior forces?

    1. An old quote from a Western, but it applies here: “I’d rather have my horse shot out from under me, than shoot him myself.”

      Either way the horse is dead, but it matters to some people who’s guilty of killing it.

      1. If you are saying that old-timey conservatism is dead in modern America, I disagree.

        It is dying, and doomed, but not yet dead.

    2. Agreed. Most likely Roberts has convinced Barrett to wait until after the midterms before taking on any cases that will upset the liberal side of the political equation. If the Republicans can take back one or both houses there will be time for the saucer to cool after any court decisions that upset the “let’s just appoint enough ‘yes’ men to get the answer we want every time” crowd.

    3. “and are therefore choosing their shots with care,”
      once in a while I must agree with RAK. They don’t like shoot outs, especially when there is little to gain and when they might “get shot.”

      1. That might cause me to buy a lottery ticket today.

        Thank you for the inspiration . . . especially if I win $100 million.

  5. One of the interesting arguments made was a Bostock argument – that because Bostock had established that gender etc. is identified by behavior, and is not just a matter status, it would be incongruous not to apply the same concept to religion, which has historically been identified by behavior rather than mere status.

    1. “that because Bostock had established that gender etc. is identified by behavior”

      That is not what Bostock says at all. In fact, it basically says the opposite of that: you can’t discriminate based on behavior based on what someone’s gender is.

  6. I would also disagree that this type of speculation on Justices’ motives isn’t really helpful and doesn’t advance knowledge of anything.

    Justices’ thoughts and motives are relevant, but I would suggest basing discussion about them on reliable sources rather than engage in rank speculation.

    The academy is supposed to engage in legal scholarship, not run gossip columns on legal celebrities.

  7. “The academy is supposed to”
    That is generous of you to refer to a Tier 5 school as “the academy.”

  8. I see a pattern here. An ever broader spectrum of controversial issues is now being treated as a no-go zone by the conservatives on the court, lest they so provoke Biden that he uses extraordinary means to get a vote on packing the court. (Or lest they be forced to rule against their principles to avoid so provoking.)

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