The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Unlike Justices Sotomayor and Kagan, Justice Jackson has no problems criticizing Justice Barrett.


Justice Kagan, and for the most part, Justice Sotomayor, seem intent on building bridges to Justice Barrett to help garner her vote. Justice Jackson, on the other hand, takes a different approach.

In Moyle, Justice Jackson accuses Barrett, as well as Chief Justices Roberts and Justice Kavanaugh, of ducking the case because of a "convenient" argument by Idaho.

Some of my colleagues appear to view this convenient rhetorical maneuver as a material change that (also conveniently) reduces the conflict between state and federal law to the point that a ruling from this Court is no longer warranted. See ante, at 6–7 (Barrett, J., concurring). But it is both legally and factually implausible to say that Idaho's current litigating position actually mitigates the conflict between that State's law and EMTALA.

She claims that the Barrett-troika is "shirking its duty."

So it is strange, to say the least, that this Court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities.

She accuses the middle-three with using an "escape hatch."

Still, some of my colleagues latch onto the bald representations of ldaho's counsel, using them as an escape hatch that justifies our dispensing with having to issue a merits ruling in these cases.

And taking a "mulligan."

We cannot simply wind back the clock to how things were before the Court injected itself into this matter. Our intervention has already distorted this litigation process. We permitted Idaho's law to go into effect by staying the District Court's injunction in the first place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The Court has made this bed so now it must lie in it-by proceeding to decide the merits of the critical pre-emption issue this case presents.

Justice Jackson is sounding many of the same notes as Justice Alito's dissent. I sense a brooding frustration on the Court with Justice Barrett. Justices Sotomayor and Kagan will take a vote where they can. Their time horizon is much shorter than the other members.

Moreover, Justice Jackson calls out Justice Barrett for at least signaling that Idaho's case may have some merit.

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects. See ante, at 4–7 (Barrett, J., concurring); post, at 4–11 (Alito, J., dissenting). The majority opts, instead, to dismiss these cases. But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law. See post, at 11-14 (Alito, J., dissenting). And three more decline to disagree with those dissenters on the merits. See ante, at 4–7 (Barrett, J., concurring). The latter group offers only murmurs that "petitioners have raised a difficult and consequential argument" about Congress's authority under the Spending Clause. Ante, at 6 (Barrett, J., concurring). So, as of today, the Court has not adopted Idaho's farfetched theories-but it has not rejected them either.

For good measure, Justice Jackson takes a shot at the Fifth Circuit for "flouting EMTALA."

Instead, the Court puts off the decision. But how long must pregnant patients wait for an answer? Until we confront the pending petition that the Government filed with us after the Fifth Circuit enabled Texas's flouting of EMTALA? Until these very cases return to us in a few years? Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time? Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable States to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment.

As I noted earlier, the petition from the Fifth Circuit will likely be ready for the long conference. I have to imagine that Jackson, and the three conservatives, will be a lock for cert. Of course, if Trump wins, this case will simply enter limbo.