The Volokh Conspiracy

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Justices Alito, Thomas, and Gorsuch Dissent On An "Emotional and Highly Politicized" Case

And they charge that Justices Barrett and Kavanaugh "lost the will" to decide the case.


In Moyle v. United States, Justices Alito, Thomas, and Gorsuch would have maintained the stay. Indeed, they signaled that they would rule for Idaho on the merits. But they were in dissent. And at times, it was a cantankerous dissent. (Justice Gorsuch did not join Part III of the dissent, for reasons he did not explain.)

Justice Alito provides a peek behind the curtain, and suggests the stay was granted in January based on the "likelihood of success on the merits."

Recognizing the flaws in the Government's theory and Idaho's "strong" likelihood of success, this Court stayed the preliminary injunction pending appeal on January 5. And, wisely or not, the Court also took the unusual step of granting certiorari before Idaho's appeal was heard by the Ninth Circuit. See this Court's Rule 11. Now the Court dismisses the writ and, what is worse, vacates the stay.

The Court's order granting the stay offered no rationales. Here, Alito is at least signaling what was important to the three dissenters, but I would suspect this was also what persuaded Justices Kavanaugh and Barrett. After all, Kavanaugh's concurrence in Labrador focused primarily on the likelihood of success on the merits. Moreover, Alito acknowledges that whether or not it was a good idea to grant cert before judgment, it was a mistake to DIG the writ now.

Alito repeats this point later:

Having already taken the extraordinary step of granting certiorari before judgment in order to decide whether the Government's new interpretation of EMTALA is correct, we have no good reason to change course now.

And why did the Court DIG it? The Court "lost the will." Or to be more precise, Justices Kavanaugh and Barrett "lost the will."

Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.

And why did they lose the will? The suggestion here is because this case is "emotional" and "highly politicized." Alito implies that Justices Barrett and Kavanaugh changed their minds because abortion is an "emotional" topic and the case has become "politicized." I learned long ago not to use the word "emotional" when describing anything a woman does. If Justice Alito used that line with Mrs. Alito, he would certainly need an appeal to heaven. But this barb made it into a draft opinion. (Maybe it will be dropped in the final opinion.)

Alito repeats this claim at the end of his opinion:

Today's decision is puzzling. Having taken the unusual step of granting certiorari before Idaho's appeal could be heard by the Ninth Circuit, the Court decides it does not want to tackle this case after all and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this Court now ducks.

Alito accuses Barrett and Kavanaugh of ducking and hiding for cover.

This isn't the first time the conservatives have used such language. Back in 2021, Justices Thomas, Alito, and Gorsuch wrote that Barrett and Kavanaugh lacked "fortitude." I observed at the time:

In an excessive force case, the conservative trio wrote that the two newest Justices were "unwilling to…bear[] the criticism that" denying the prisoner's appeal "would inevitably elicit." And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the "fortitude" to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

These attacks remind me of Justice Scalia's attacks on Justice O'Connor in Webster v. Reproductive Health Services (1989). They will backfire.

I think the Court's conservatives need some sort of reset or intervention. It will be a long three decades ahead.