The Supreme Court's latest orders

The orders list exposes the Republican justices even more.

The Supreme Court might have finished releasing opinions in cases argued during October Term 2024. But the court’s shamelessness isn’t done. This morning’s orders list took it to new levels.

The Court opted not to hear the case of Montana v. Planned Parenthood—a challenge to the relatively new arrangement under Montana law according to which minors can obtain an abortion without obtaining their parents’ consent. (The Montana Supreme Court struck down a law that required parental consent before an abortion. And the state of Montana then asked the U.S. Supreme Court to decide “[w]hether a parent’s fundamental right to direct the care and custody of her or her children includes” a right to refuse consent to – to block – their child obtaining an abortion.) In a statement accompanying the denial of certiorari, Justices Alito and Thomas indicated that the particular case was a “poor vehicle for deciding that question” (perhaps because it was only clearly raised at the certiorari stage, not in the proceedings below). Therefore, the two MAGAheads cautioned, “the [Court’s] denial of review” should “not” be “read” “as a rejection of the argument.”

Let’s be clear about what Justices Alito and Thomas are suggesting. They are saying the Constitution might override a state’s decision to ALLOW abortion in certain circumstances (where minors seek abortions their parents want to prohibit). But, in Dobbs v. Jackson Women’s Health Organization, they said the Constitution does NOT override a state’s decision to PROHIBIT abortion. So much for Justice Kavanaugh’s line in Dobbs that “the Constitution is … neither pro-life nor pro-choice”! (Ugh, spare me.)

The fact that Samuel Alito wrote this statement makes it even more galling. In Dobbs, the guy penned a majority opinion that would not shut up about the virtues of returning the issue of abortion to the states—where the issue of abortion access could be decided in the democratic process, and political process. Apparently, it seems, the issue of abortion can only be decided one way – restricting abortion. That’s what he meant by democracy – the peoples’ choice to make the same choice that he, Samuel Alito, would.

It was apparent in Dobbs and before Dobbs that the movement to overrule Roe was not going to stop at merely “letting the people decide” whether to allow or prohibit abortion access. As I wrote in my recent book, LAWLESS: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, & Bad Vibes, “[t]he Supreme Court’s decision to eliminate a woman’s right to reproductive freedom” in Dobbs “was a Ken-surrection—a move to restore a patriarchy where men are on top.” As I warned:

Overturning Roe is not the ultimate destination of the movement that led to the end of Roe. It is one step on a longer journey to restore a gender hierarchy in which the Kens dominate public law … The movement associated with the rise of originalism was not just about letting government decide whether abortion should be legal. It was, in William Rehnquist’s words, about “overtones of dislike and distaste for the traditional difference between men and women in the family unit.” It was, in the words of opponents to the ERA, about how “women’s liberation” was “a total assault on the role of the American woman as wife and mother and on the family.”

There’s more in the orders list. Consider the possibility that the Supreme Court will say that the U.S. constitution gives parents the right to prohibit their kids from getting certain health care (abortion care) when the state allows that care AND that the constitution does not give parents the right to ensure their kids can get other kinds of health care (gender-affirming care for trans minors) when the state prohibits it. After the Supreme Court rejected an equal protection challenge to the Tennessee law banning gender affirming care for trans minors, they also turned away a “parental rights” challenge to the Tennessee law – that challenge argued that parents’ right to participate in the care and upbringing of their children allowed the parents to choose, in consultation with their children and their doctor, that their children should receive certain medical treatment for gender dysphoria.

I’m not done. The Supreme Court, in the Tennessee case United States v. Skrmetti, upheld the Tennessee law prohibiting gender-affirming care for trans minors in part by insisting that the law did NOT discriminate on the basis of gender identity and did NOT discriminate against trans kids because they were trans. It was, instead, about a medical procedure Chief Justice Roberts’ assured us. They weren’t saying that states and the federal government could discriminate against trans people! Lol.

Now they’ll say it! With their whole chest! The Court added to its docket for next term two cases that challenge states’ exclusion of trans women and trans girls from participating in womens’ sports. In Skrmetti, Justices Thomas, Alito, & Barrett all wrote separate gratuitous opinions saying that even if the state was discriminating against trans kids because they were trans, they would still treat the discrimination as presumptively constitutional. It’s like they wanted to decide that issue. And now they’ll have the chance.

In these new sports cases, there’s a risk that the Supreme Court might say more than just that states CAN discriminate against trans women and trans girls. I wouldn’t put it past some of the Justices saying that states MUST discriminate against trans women and trans girls. One of the cases the justices granted involves a question about whether Title IX, which guarantees women and girls access to educational programs and sports, permits a state to prohibit trans women and trans girls from participating in women’s sports. Do not underestimate the possibility that some Justices, and perhaps five of them, will say it does – because, they will say, Title IX actually requires states to prohibit trans women and trans girls from participating in women’s sports. (The justices absolutely would not have to say this, but who knows what will move them.)

In a short term recap I put together, I wrote that in the last nine months, the Republican justices gerrymandered the law – to generate a set of legal rules that basically say the Republican Party and Republican politicians get to do whatever they want. Constitutional law for the rich, corporate interests; constitutional doctrine for the reactionary right-wing ones; and a slew of rulings for the autocratic President that brings it all together.

The galling hypocrisy – and willingness to say one thing and do the other, to offer some false assurances that are immediately taken back – is part of my concern with the Court’s birthright citizenship/nationwide injunction case. Sure, if the Court is serious about the possibility of class actions and class certification providing a way to block a policy from being applied to people who didn’t sue themselves, the ruling might not prove so consequential in undercutting courts’ authority to enforce the law against the executive branch. So too if the Court is serious about the possibility of states being able to receive nationwide relief where necessary to provide complete relief to the states.

But back in Shelby County v. Holder (2013), Chief Justice Roberts wrote that we didn’t need the Voting Rights Act’s preclearance process because we still had Section 2 of the VRA. (The preclearance process had required certain states, those with especially bad histories of racial discrimination, to obtain the federal government’s permission before changing their voting laws and policies to ensure they did not discriminate against voters of color and language minorities. Section 2 prohibits such voter discrimination on a nationwide basis.) Well guess what happened after that assurance? The Court narrowed the reach of Section 2 and what kinds of discriminatory voter preconditions the law prohibits. The Court also scheduled for reargument in the next, upcoming term a case that could gut Section 2’s protections in cases involving redistricting.

The justices have shown us, time and time again, who they are—standard Republicans who are pretty much cool with what Republicans do, judges who say the Constitution permits Republicans to do what they want to do, or perhaps gives them the constitutional right to do what they want when law, democracy, and society disagree. At some point, believe them.

If you want to hear more (better to know than … not?), check out LAWLESS: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, & Bad Vibes