Kavanaugh shows his stripes on Supreme Court's 'shadow docket'

Over the last several weeks, the Supreme Court has issued a number of important rulings on its “shadow docket” — cases that are heard on motions to grant a stay or for other immediate relief without oral argument and usually without written opinions by the justices. In three of these rulings, Supreme Court Justice Brett KavanaughBrett Michael KavanaughThe impeachment controversy drags Supreme Court into the politics of the Trump era Supreme Court can prove its independence — or its partisan capture Overnight Health Care — Presented by Coalition Against Surprise Medical Billing — Planned Parenthood plans M campaign for 2020 | Dem candidates embrace aggressive step on drug prices | Officials propose changes to encourage 'value-based' care MORE has more than lived up to President Donald TrumpDonald John TrumpBusiness school deans call for lifting country-specific visa caps Bolton told ex-Trump aide to call White House lawyers about Ukraine pressure campaign: report Federal prosecutors in New York examining Giuliani business dealings with Ukraine: report MORE’s expectations that he will be far to the right on the court, including on crucial issues for the Trump administration.

In January, the court voted 5-4 to dissolve preliminary injunctions that had halted the Trump ban on transgender service members as the lawsuit against the ban moved forward. As a result, while the litigation continues over the next year or so, the military can prevent transgender individuals from enlisting and “courageous transgender service members will face discharges.”  As one veteran put it, in addition to the hardship and discrimination against transgender individuals, the court’s 5-4 ruling “has made it harder for every commander in the military,” since each will “have to look at some of the best troops we have and kick them out for being honest about who they are.”

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Kavanaugh cast one of the deciding votes to lift the injunction against the ban. This ruling, as well as the final vote on the ban in the future, could well have rejected Trump’s discrimination against transgender individuals if Justice Kennedy were still on the court. But as many have pointed out, Justice Kavanaugh has “evinced no interest in defending” the LGBTQ community’s rights or their dignity. Trump’s other Supreme Court nominee, Neil Gorsuch, also voted to dissolve the injunction.

Kavanaugh and Gorsuch were part of the 5-4 majority again in February, when the court voted 5-4 to reverse an Eleventh Circuit Court of Appeals ruling that had temporarily stayed an execution because of a “powerful” claim that prison officials had violated the prisoner’s religious liberty. The court of appeals was concerned that Alabama refused to allow a Muslim prisoner to have an imam present to offer him religious guidance in his last moments, even though it allows that religious accommodation for Christian prisoners. Even though Kavanaugh has been called a “warrior for religious liberty” by conservatives, he voted against religious liberty in this case. As Justice Kagan wrote in a strong dissent joined by the court’s other moderate justices:

"This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed… Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the State can meet its preferred execution date."

Votes by Kavanaugh and Gorsuch were recently almost enough to allow a restrictive Louisiana anti-choice law to go into effect, even though it is virtually identical to a Texas provision struck down by the Supreme Court three years ago.  By a 5-4 vote with Justice Roberts joining the court’s four moderates, however, the court halted the state law pending a decision on a request that the court review the case on the merits. As one commentator put it, if the court had declined the stay, the net result would have made Roe v. Wade “all but dead.”

Originally enacted in 2014, Louisiana’s restrictive law would severely limit women’s reproductive choice by imposing the onerous and medically unjustified requirement that doctors performing abortions have nearby hospital admitting privileges. The requirement was almost identical to a similar mandate passed by Texas that was struck down in a 5-3 vote by the Supreme Court in 2016 in Whole Woman’s Health v. Hellerstadt. The court had stayed enforcement of the Louisiana law in 2016 and directed the lower courts to reconsider the statute in light of the Texas decision.

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The district court in Louisiana then held a six-day trial and issued a 116-page decision entering a permanent injunction against the law in June Medical Services v. Gee in April 2017. The court specifically found that as a result of the law, there would be only “one provider and one clinic” in the entire state that could perform abortions, as opposed to six doctors and five clinics before the law was passed. The court concluded that “a substantial number” of Louisiana women – 70 percent of those who choose to seek abortion – would be unable to obtain one in the state. The court also found that the hospital privileges requirement would produce “no medical benefit” and would thus not further the state’s interest in women’ s health, but instead would increase delays and  health risks to Louisiana women, as well as substantially burdening their right to reproductive choice.

But the Fifth Circuit reversed the district court’s decision 2-1, with Reagan appointee Patrick Higginbotham vigorously dissenting. He explained that the majority “fails to give the appropriate deference” to the extensive factual findings of the district court, and instead was improperly and “essentially conducting a second trial” based on “the cold appellate record.” Based on the trial court record, Higginbotham explained, it was clear that the Louisiana law had both the purpose and effect of creating a “substantial burden” on women’s reproductive rights, as did the law in Texas. When the full Fifth Circuit decided not to rehear the case, the plaintiffs went immediately to the Supreme Court for a stay of the order.

On February 7, 2019, the Supreme Court decided 5-4 to stay the Fifth Circuit ruling and prevent the law from taking effect, pending a decision on a request that the court review the case on the merits. Trump’s appointees both dissented, with Kavanaugh writing a separate dissent suggesting that the plaintiffs file another stay request later if needed. That dissent effectively disregarded the court’s Texas ruling that admitting privilege requirements are unconstitutional and provide no benefit to patients, thus effectively declaring “war on Roe v. Wade.”   Progressives have already referred to Kavanaugh’s vote and opinion in again criticizing Sen. Susan Collins (R-Maine) for her key vote to confirm Kavanaugh.

The votes of Kavanaugh and Gorsuch could be critical when the Supreme Court considers the Louisiana law on the merits, which it is likely to do in 2019-20.  Chief Justice Roberts was one of the three dissenters when the court invalidated the Texas law in 2016. If he takes the same position when the Louisiana statute is reviewed on the merits, then the votes of Kavanaugh and Gorsuch could be decisive in effectively reversing the Texas decision and endangering Roe v. Wade.

Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.