The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Once again, Justice Barrett lines up with Chief Justice Roberts and Justice Kavanaugh
Justices Thomas, Alito, and Gorsuch would have allowed Ohio and 18 other states to intervene and defend Title X rule.
In February, the Court granted review in a trio of companion cases concerning Title X and abortion. At the time, it was fairly obvious that the Biden Administration would reverse the Trump-era rule. Why did the Court grant? Who knows.
After the change in administration, the parties submitted a joint stipulation to dismiss the case. A few days earlier, Ohio filed a motion to intervene on behalf of 18 other states. Then, on April 15, the Acting Solicitor General notified the Court that the administration published a notice of proposed rulemaking, and a final rule will be in place by December 2021.
Eleven days later, on April 26, the Court asked the parties to brief a specific question:
The Acting Solicitor General is directed to file a letter brief addressing the following question: Whether the Government intends to continue to enforce the challenged rule and regulations outside the State of Maryland until the completion of notice and comment; and, if further litigation is brought against the challenged rule and regulations outside of Maryland, how the Government would intend to respond. The brief, not to exceed three pages, is to be filed by Monday, May 3, 2021. The non-federal parties and the proposed intervenors may submit any responses in letter briefs, not to exceed three pages each, by Monday, May 10, 2021.
Today, the Court issued a one paragraph order denying the motion to intervene, and dismissing the petition:
The Government has filed a letter brief representing that it will continue enforcing the challenged rule and regulations outside the State of Maryland for as long as they remain operative. If further litigation is brought against the challenged rule and regulations outside of Maryland, the Government represents that it will either oppose that litigation on threshold grounds or seek to hold the litigation in abeyance pending the completion of notice and comment. In light of the Government's representations, the motions for leave to intervene are denied, and the petitions in Nos. 20-429, 20-454, and 20-539 are dismissed pursuant to Rule 46.1. If the Government fails to enforce the challenged rule and regulations outside of Maryland prior to the completion of notice and comment, or if litigation is brought against the challenged rule and regulations outside of Maryland, any aggrieved party may file an application in this Court after seeking relief in the appropriate District Court and Court of Appeals. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the motions for leave to intervene and deny the stipulations to dismiss the petitions.
The final rule will be adopted in December 2021. It will be impossible for an "aggrieved party" to seek relief in the Supreme Court during that time, if the parties have to begin in the District Court and then go to the Court of Appeals. The Supreme Court has washed its hands clean of this case.
There were three signed dissents: Justices Thomas, Alito and Gorsuch. They would have allowed Ohio to intervene, and kept the case on the docket. It is safe to assume that the Kagan-three was happy to get rid of this case. Ditto for the Chief. But that tally makes four. And you need five to dismiss. Justices Kavanaugh and/or Barrett would have had to agree with Roberts. The safe assumption is that Barrett went along with Kavanaugh and the Chief.
Once again, two of the Trump appointees sided with Roberts, and the other Trump appointee sided with Thomas. I am still trying to figure out where Justice Barrett will fall on the Court. Check back with me after the end of the term.
