The Supreme Court of the United States likes to punt. It's the go-to play, no matter the down. These are not the days of Hail Marys. Better said, these aren't the days of miracles, as a president named Lincoln once noted, and in modern times the nation's highest court has tended to decide cases narrowly when that escape presents itself. It has done so again.
Instead of getting into the thick of another abortion debate, the court has refused to hear arguments from cases in Kansas and Louisiana. And, as you might imagine, they both involve Planned Parenthood.
Can states cut off Planned Parenthood? That may be the simple, perhaps simplistic, question. The more legal questions might be these: Does the Medicaid law allow states broad authority to exclude health care providers--and, if so, for what reasons? And if not, can individuals on Medicaid sue those states about the matter?
Some lower courts have ruled one way; another handed down an opposite opinion. When that happens, "that is the kind of split that normally prompts the Supreme Court to act," according to The Washington Post.
Instead, the punt.
For clarity on this subject, as with many others, take the writing of one Justice Clarence Thomas. He doesn't say much from the bench, but the man doesn't hold back in his writing. No on-the-one-hand-but-on-the-other-hand stuff for him. What's the opposite of milksop?
In a dissent, he wrote that millions of citizens in this country are on Medicaid, and their rights, or lack of rights, are in question. So why doesn't the nation's top court take up the matter?
"If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider."
If the lower courts are right, and the Supreme Court doesn't chime in, this could make a can of worms look organized.
Justice Thomas continues: "Under the current majority rule, a State faces the threat of a federal lawsuit--and its attendant costs and fees--whenever it changes providers of medical products or services for Medicaid recipients . . . No only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest."
So to punt doesn't help things. Unlike in other cases, we'd add, when allowing difficult social matters to percolate in the several states might help thought to evolve. But here, the Supreme Court is making things tougher for the states by ignoring the hard questions.
Then, like any good opinion writer, Justice Thomas saves the kicker for the end: "So what explains the Court's refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named 'Planned Parenthood.' That makes the Court's decision particularly troubling, as the question presented has nothing to do with abortion."
There is some speculation among the commentariat that the rough Brett Kavanaugh hearings may have spooked the court, and its members would like to lay low for a bit and not draw any more attention than necessary until there is distance between them and September. But the founders didn't set up the United States Supreme Court to consult the polls or try to read the minds of the American people. This isn't America's Got Talent.
The court is supposed to rule on these matters. It's the job.
The Supreme Court needs a new playbook. And, for several members anyway, perhaps a spine.
Editorial on 12/13/2018