Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch objected Tuesday to their colleagues’ decision to side with the Biden administration in an abortion-related appeal. The high court majority let the government withhold federal family planning funds for Oklahoma because the state refuses to refer pregnant patients to a national hotline that provides information about abortion.
The order rejecting Oklahoma’s emergency application doesn’t provide an explanation; it simply notes that the application was denied and that Thomas, Alito and Gorsuch would have granted it if they had their way.
That lack of explanation isn’t unusual on the court’s so-called shadow docket, where issues are decided on an expedited timeline without full briefing or hearings. Nor is it surprising that those three justices split from their colleagues in the latest abortion-related action, following the court’s overturning of Roe v. Wade in 2022. While Thomas, Alito and Gorsuch were just three of the five justices in the Dobbs majority who voted to ditch Roe — Justices Brett Kavanaugh and Amy Coney Barrett were the other two — they might be the most reliable votes for anti-abortion litigants.
We saw that just this past term, for example, when the court allowed emergency abortions in Idaho to go forward for the time being, over dissent from those same three justices.
In another recent order over the summer on a separate issue, those three justices noted in a voting rights appeal from Arizona that they would have fully sided with the Republicans in that case, Republican National Committee v. Mi Familia Vota. That was the most recent indicator that voting rights are a wild card heading into November’s election, with those three justices potentially willing to go as far as Republicans want while the court’s other Republican appointees could decide just how far the court will go as a whole. The Supreme Court’s next term begins in October, and Tuesday’s order suggests that that dynamic is in play with abortion-related matters as well. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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