SCOTUS GVRs Roman Catholic Diocese of Albany v. Lacewell and Denies Cert in Dignity Health; Justices Thomas, Alito, and Gorsuch Would Have Granted Cert

Justices Kavanaugh and Barrett have no interest in deciding another Free Exercise Clause case now.

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Today, the Supreme Court GVR'd Roman Catholic Diocese of Albany v. Lacewell in light of Fulton. I blogged about this case last month, which involves a New York mandate that insurance policies must cover abortions. The case was GVR'd after four conferences. Once again, Justices Thomas, Alito, and Gorsuch signaled they would have granted cert. By the process of elimination, we know that neither Justices Kavanaugh nor Barrett voted to grant cert. And, once again, by signaling three dissents, the Court's conservatives shined a light on their new colleagues.

It is very obvious to me that Justices Kavanaugh and Barrett have no interest in deciding another Free Exercise Clause case now--especially after the denial of review in the Maine case. Barrett signaled that there were not four votes for cert. She would know--she was the potential fourth vote for review who voted no!

For now at least, Justices Thomas, Alito, and Gorsuch are alone on the Court to provide guidance of how to apply Fulton.

Now, time to listen to the abortion oral arguments. Today at 1 ET/12 CT, I am speaking at the  Texas Tech Federalist Society Chapter. I will provide a recap of the arguments. Stay tuned for a YouTube link.

Update: The Court also denied cert in Dignity Health v. Minton. This case had also been distributed at four conferences. Dignity Health, Inc. v. Minton presents the question whether a California Catholic hospital can be required to perform a hysterectomy on a transgender patient. Once again, Justices Thomas, Alito, and Gorsuch would have granted cert. Justices Kavanaugh and Barrett didn't even favor a GVR here.

Now, neither case will be held pending 303 Creative. There will probably be a deny in that case as well.

NEXT: #MeToo, #TheyLied, and Sealing

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  1. This issue is easily resolvable with single payer health care.

    1. Or at least getting employers out of the health insurance business.

      1. Yet another problem to be solved by universal health care . . . coming soon to a modern country near you!

      2. Actually most (except for health care providers) are. They are in the business of paying for health care. And absent a "single payer scheme" unions would balk mightily about eliminating that untaxed perk.

        1. It can't be beyond the wit of man to design a tax offset that makes employees whole when they have to buy their own health insurance.

    2. This issue is easily resolvable with single payer health care.

      Single payer health care is such a good idea that people must be forced to participate.
      They don't do so voluntarily.

      1. That's far from clear. A majority of Americans want single payer health care, as shown by both polling data and the fact that majorities vote for Democrats in both presidential and congressional races. I think the more accurate statement would be that some people don't like it, but that's true of any policy.

        1. " A majority of Americans want single payer health care,"

          But, it's not 'single payer' if the people who don't want it are given any choice in the matter. So, yes, people must be forced to participate.

          1. Single payer means the government pays for it. It does not mean the government requires unanimous consent.

            1. "They don't do so voluntarily." = "It does not mean the government requires unanimous consent."

              Single pay means, inevitably, some people get their choices taken away from them. And that's exactly what you were denying was clear, while also confirming you were OK with.

              1. "The majority" would do so voluntarily, and in a democratic society, sometimes the majority gets to make choices for the minority. You seem to think that everything requires unanimous consent. It doesn't. The answer to "I didn't choose it" is so what?

                1. The "so what" should be obvious to anyone who actually places any value on human liberty. Which I guess lets you out, since you don't even seem a bit regretful about people having their liberty taken away.

                  1. Liberty is an important value, but it's not the only value. Other values are important too.

                2. The answer to "I didn't choose it" is so what?

                  Which part of "voluntarily" do you not understand?

                  1. Its relevance to this conversation.

                    1. Its relevance to this conversation.

                      I said:

                      Single payer health care is such a good idea that people must be forced to participate.
                      They don't do so voluntarily.

                      You asserted:

                      The answer to "I didn't choose it" is so what?

                      That assertion clearly indicates that do not understand the meaning of the word "voluntarily".

                    2. I understand the meaning of the word voluntary. I just don't think it's relevant to public policy that some people don't want to participate; there are probably few if any laws that don't have individuals who don't want to be part of it. The very fact that we have murders indicates that not everyone is on board with laws against murder, but that's hardly a reason to repeal laws against murder.

        2. I don't think the majority of politicians could accurately describe single-payer, much less a useful portion of a polled population, so it's hardly a persuasive argument that it's a good idea.

    3. Single payer = Shitty healthcare for everyone!
      Now that is equality (or is that equity...?)

    4. Single payer health care makes a lot more sense at the state level…so the fact Vermont and Massachusetts don’t have single payer tells you liberals are satisfied with the status quo.

    5. The "Reply" links at the end of the thread have disappeared.
      I therefore reply to your last reply to me here.

      You seem to believe that single payer health care, like laws against murder, is such a good idea that people must be forced to participate, because they will not do so voluntarily.

  2. Krychek_2
    November.1.2021 at 10:04 am
    Flag Comment Mute User
    This issue is easily resolvable with single payer health care."

    the one size that fits all - provides bad outcomes for all

    1. Why do you think single payer = one size fits all?

      1. More to the point, why do you think it necessarily provides bad outcomes for all?

        1. "For all"? That's a bit of an exaggeration, the nomenklatura usually do well under such systems. And, of course, you can't really say that somebody has a bad outcome under such a system if they have no particular health care needs to begin with.

        2. I agree that "necessarily" requires robust evidence.
          As for "unsatisfactory," that only requires anecdotal evidence and there are plenty of examples of long delays for care in but the Canadian and UK NHS.
          Much also depends on whether the "single payer" system allows one to purchase privately paid for care. Not all countries permit that.
          So in my brother's case he could wait 5 months for a gov't paid appointment or pay himself for an appointment 3 days later. He chose to pay hinself for his appointment

          1. Delays in noncritical care, sure. But medical bankrupcies aren't a thing, and our actual health outcomes are pretty bad compared to European single payer countries.

            And if you just think about it, the demand signal for health care is screwed up - it's minor until it's infinite. Doesn't seem great for having a normal market deal with it.

      2. Well, let's see: Is the government trying to insist that people who've already had Covid get vaccinated anyway? Why, yes. Is this not a 'one size fits all' policy?

        Of course you should expect single payer to equal one size fits all. Bureaucratic convenience dictates one size fits all, and, without a competitive market, why wouldn't bureaucratic convenience prevail?

        1. Covid vaccinations are a separate issue from single payer health care. As I've repeatedly pointed out in other contexts, though, any policy will provide less than optimal results for certain individuals but that's the cost of living in society. Maybe I can safely drive through a school zone at 60 MPH but that's not the issue. The issue is whether it's a sensible policy overall.

          1. "As I've repeatedly pointed out in other contexts, though, any policy will provide less than optimal results for certain individuals but that's the cost of living in society. "

            IOW, you've defended one size fits all. Because that's not the cost of living in society, that's the cost of insisting that everyone be subject to the same policy. One size fits all!

            1. So you're opposed to speed limits in school zones because it's one size fits all? Maybe there weren't any children in the crosswalk when I breezed through at 60 MPH. So maybe I shouldn't have to be forced into a one size fits all cubbyhole since I safely made it through.

              For that matter, making me stop at a red light when nobody is coming is a one size fits all solution. As is requiring that I stop at stop signs even if nobody is coming.

              1. One size fits all may, in some limited contexts, be appropriate, but it's always a defeat, not a celebration, when you conclude that.

                "You can't drive 60MPH in a school zone, so I can force you to get this vaccination for a disease you're already immune to!"

                Takes a special sort of mind to think that's a rational argument.

                1. DeathSantis has killed more Americans than Osama Bin Laden and Saddam combined!! Take any logical grouping of states and if one of the states has a Democrat governor that believes in science and public health mitigation measures then state will have a significantly lower death rate. So North Carolina has by far the lowest death rate in the SE and Arizona has the highest death rate in the SW.

                2. I didn't say one follows the other. What I said is that your argument that one size fits all is necessarily bad is bogus.

              2. "So you're opposed to speed limits in school zones because it's one size fits all? "
                C'mon. That argument is cheap sophistry. You can do better than that

        2. Competitive market?

          And if you haven't noticed, private insurance companies are very much bureaucracies.

          Slogans aren't helpful.

          1. A natural consequence of the degree to which health care already isn't a free market, and hardly an excuse for abolishing the last free market elements.

            1. Nah, health care would be a massive bureaucracy even without government intervention.

            2. Health care is not a free market for any number of good reasons.

              Get off your ideological high horse and think.

              1. There is simply no appetite for single payer among liberals…most Americans are satisfied with the mix of programs we have now. I wish Massachusetts would at least give single payer a shot but the liberal state employees and liberal college professors and liberal medical professionals just don’t want to waste the energy implementing a single payer system.

              2. bernard11, I'm thinking that a whole lot of physicians will think 'F this' and opt out. If you're a specialist, like a transplant surgeon, are you really going to say, "Hey, no problem. I'll be happy to take the medicare reimbursement rate. Those medical school payments I am making and S&W + OH of my staff...meh. I'll just eat that cost out of altruism." Uh, that ain't happening. We both know that.

                I get that healthcare financing is complex, but human motivation and behavior is not all that hard to figure out. Nobody is talking about the HCPs themselves and how they will respond to a 'single payer' system and whether they will blithely accept a huge pay cut. And that is a real problem.

                1. A lot of the nonsense paperwork is because we've kludged onto a market system, but tried to keep it from being horrifyingly immoral (in a 'poor people die all the time' sense).

                  The ridiculous paperwork we have right now is not an argument against single payer.

              3. "not a free market for any number of good reasons"
                There is only one very good reason: its price structure is highly manipulated by government intervention.

                1. That what’s so good about our UAW/New Deal Democrat designed health care system—we have some free market forces which then allow Medicare and Medicaid allocate resources and set prices. So at the end of the day…why get rid of the free market forces and go to strictly Medicare?? We essentially have a VAT to pay for health care and the revenue stream is controlled by big employers in states and state governments and people are satisfied…don’t ever say the UAW didn’t do something for you because they gave you your health care system! 😉

                2. Because if you don't change the price structure, you have Dickensian England.

    2. More like one size that fits nobody.

  3. Barrett 's omens recently are not good. Hopefully she's not going wobbly.

    She is on the court for her abortion views. If she does not come through, its Roberts and Obamacare for her.

    Does she want Marjorie Taylor Green as a future justice?

    1. She is on the court for her abortion views.

      You're not meant to say the quiet bit out loud...

      1. Its no secret.

        1. I don't know, Trump might have had something like that in mind, but the Federalist society generated his short list, and it's possible that they were more interested in somebody who'd be highly reluctant to rock any boats, than in justices who'd give the right wins.

          1. McConnell picked the justices…the Federalist society probably had more input at the lower courts. Remember it was George W Bush that saved Kavanaugh by calling Collins personally and urging her to support him.

          2. IIRC none of the people that were on Trump's original list were nominated to the Supreme Court, although some were nominated for other seats.

    2. I knew she was a problem when I saw her adopted family.

    3. She is on the court for her abortion views.

      What??? I thought it was because she is a careful, objective jurist, dedicated to the rule of law, not a partisan hack.

      1. No more or less so than RBG was. I'm not sure why you're making a big deal of this.

      2. Now do the "Wise Latina".

    4. MTG is more qualified than RBG.

      1. Well, RBG is indeed currently unqualified.

        In general, however, it's pretty hard to argue RBG was unable to Justice in the big leagues. Latter day Marshall, I'll give you. But disagreeing with you doesn't make her bad at her job.

        It's the usual politics of delegitimacy. I think Alito suuuuucks. But he's qualified just fine.

  4. "For now at least, Justices Thomas, Alito, and Gorsuch are alone on the Court to provide guidance of how to apply Fulton."

    Sounds wrong. Some may not like the guidance offered by others, but those three throwbacks are not the exclusive source of guidance.

    (still not a documentary, although some of those three may disagree)

    1. Whatever guidance Justices Thomas, Alito, and Gorsuch provide on how to apply Fulton needs to be viewed skeptically -- they don't command even 4 votes on the Court.

      1. So because presidents didn't pick enough jurists who agree with Thomas, Alito and Gorsuch, no one should listen to those three? Seems like a weak argument.

  5. You shouldn't use jargon such as "GVR," especially without explaining what it means. Some people use jargon in the belief that it makes them sound smarter, but it's much better to write in plain English so that your audience--which includes people who are intelligent but who may not understand the meaning of the term "GVR"--can understand you.

    1. https://en.m.wikipedia.org/wiki/Grant,_vacate,_remand_order

      Web search engines can be very helpful if you ask them about "Supreme Court GVR".

    2. This is a legal blog. Jargon is used because the writer assumes the audience has some familiarity with legal jargon, and because it's much faster than writing "grant the petition for writ of certiorari, vacate the decision of the court of appeals, and remand for further proceedings." If you don't understand it, Google it.

      1. If you wrote that, doubtless A. Friend would complain that you shouldn’t be using words like “writ,” “certiorari,” “remand,” etc. Those are all jargon words and won’t do. You should write in language ordinary readers can understand.

        Perhaps you might be able to get it done in a paragraph.

    3. The term "GVR'd" is a hyperlink to the Court's order that says:
      "The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded ...."

  6. It seems the way to interpret Fulton is exactly the way Alito complained about it. Fulton addressed a one-off act of stupid legal drafting, just as Masterpiece Cakeshop addressed a one-off act of stupid hearing officer conduct, that competently-advised government officials are going to be unlikely to repeat again.

    Otherwise it pretty much means nothing. Smith remains in place as the primary means of addressing the Free Exercise clause, aka the Free Exercise Clause doesn’t have much in the way of teeth.

    1. Well, the court could give the Free Exercise Clause some teeth back by putting some teeth into Smith's "generally applicable law" requirement for getting around the free exercise issue.

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