So much for a predictable Supreme Court.
A spate of decisions handed down by the nation’s high court on Tuesday left room for cheers — and jeers — from both the right and the left, continuing a trend of judicial independence that flies in the face of expectations that Justice Brett Kavanaugh’s appointment tipped the scales of justice firmly to the right.
The latest batch of orders and opinions included one likely to be celebrated by both sides of the abortion debate, another giving promise to those seeking greater accountability for the actions of border patrol agents, and another that left in place an Obama-era policy regarding transgender students.
The abortion case involved two aspects of a law that was first passed by Vice President Mike Pence when he was governor of Indiana. One part required fetal remains to be disposed of separately from surgical byproducts following an abortion, and the other prohibited abortion when the decision was based on the sex, race, or possible disability of a fetus.
The unsigned ruling of the court disagreed with the Seventh Circuit’s decision that blocked part of the law involving the disposal of remains. The court ruled that because the law did not present any burden against a woman’s ability to get an abortion, it only needed to pass the low level of scrutiny that requires it to be “rationally related to legitimate government interests.” The court found that it met that requirement, in that it was related to the interest of “proper disposal of fetal remains.”
As far as the prohibition on race-, sex-, or disability-based abortion, the court punted. By refusing to hear the issue, they left in place the Seventh Circuit’s decision against it, effectively allowing such abortions to go on. At the same time, however, the court made a point of saying that their decision was only based on the fact that only one Circuit Court had ruled on the issue so far, and “expresses no view on the merits of … whether Indiana may prohibit the knowing provision of sex-, race-, and disabilityselective abortions by abortion providers.” That means that in theory, the court could rule against such a law in the future.
Next is the case of Doe v. Boyertown Area School District, where Pennsylvania students were pushing against a school policy of allowing students to use bathrooms and locker rooms that corresponded to their gender identity instead of their sex at birth. The Supreme Court refused to hear the case, leaving the policy in place.
The Boyertown Area School District implemented the policy after the Obama administration issued a letter stating that transgender students should be allowed to choose which facilities they prefer. When the Trump administration removed that instruction, the school district continued with their policy. It only takes four justices to decide to hear a case, yet the court — with five conservatives in their ranks — did not feel the case warranted their attention.
Then there was the case of Hernandez v. Mesa, where the family of a 15-year-old Mexican boy has been trying to sue a U.S. Border Patrol agent in relation to a fatal cross-border shooting. The Fifth Circuit had ruled that Agent Mesa was protected by qualified immunity, and thus could not be sued for damages. The Supreme Court will now hear arguments from both sides before determining whether the Hernandez family should be allowed to sue.
Another case decided on Tuesday was Home Depot v. Jackson, which featured a 5-4 decision where the typically conservative Justice Clarence Thomas sided with his liberal colleagues. That decision favored a Home Depot customer who was sued in state court by Citibank, N.A. in a debt-collection case, only for the customer to file a counterclaim with Home Depot as a defendant, claiming unfair trade practices. Home Depot tried to move the case to federal court, and the Supreme Court sided with the customer in saying that because Home Depot was not a defendant in the initial lawsuit, they are not allowed to do that.
While the issue involved in the Home Depot case may not be one that typically comes to mind when it comes to those where conservatives and liberals are at odds, it was the latest in a string of recent 5-4 decisions where a lone conservative sided with liberals.
Last week, Gorsuch joined the liberal contingent in affirming a Native American’s hunting rights. A week prior, Kavanaugh was the lone conservative in a 5-4 decision that allowed Apple to face a lawsuit over app store pricing.
Finally, another case decided on Tuesday featured a mix of Justices on the same side. Chief Justice Roberts wrote the opinion in Nieves v. Bartlett, and was joined by conservatives Alito and Kavanaugh, along with liberals Breyer and Kagan. That case stated that if there is evidence that a police officer arrested someone based on something they said, it is not a First Amendment violation if there was still some other probable cause for the arrest. The conservatives Thomas and Gorsuch concurred in part, as did the liberal Ginsburg, with only liberal Justice Sotomayor writing a full dissent.
The Supreme Court still has high-profile cases left to decide, including one dealing with a citizenship question on the 2020 census, and another over whether a war memorial in the shape of a cross can remain on public property. Time, not pre-conceived notions of the court, will tell how those play out.
Fox News’ Bill Mears contributed to this report.