The Supreme Court’s Republican appointees have reshaped the law and American life, perhaps most prominently in recent memory when the court overturned Roe v. Wade last year. But the court’s right wing doesn’t always get what it wants when it wants it, which we were reminded of Monday when the court declined to review an appeal over banning so-called conversion therapy that seeks to change LGBTQ minors’ identity and orientation.
That razor-thin margin also shows that high court review of the subject could be within reach.
Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh wanted to take the case, with Thomas and Alito writing separate dissents expressing their views (Kavanaugh simply noted he would have taken it up, without explanation). It takes four justices to agree to hear an appeal, so none of the other three GOP appointees — Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett — were on board.
That razor-thin margin also shows that high court review of the subject could be within reach, and Monday’s dissenting votes could feature in a majority opinion if the full court weighs in in a future case. As Thomas wrote in his dissent decrying the “censor[ship]” of “counselors who help minors accept their biological sex,” he has “no doubt” that the issue “will come before the Court again.”
But for now, the rejection of the appeal in Tingley v. Ferguson, brought by the right-wing Alliance Defending Freedom, leaves Washington state’s ban on “conversion therapy” for minors in place.
The denial was noted in the Supreme Court’s order list, a routine document that publicizes court action in pending appeals following the justices’ private conference. Another matter on Monday’s list that couldn’t garner enough high court support prompted another Alito dissent that aired “censorship”-type complaints, when the court declined a motion from presidential candidate Robert F. Kennedy Jr., to intervene in the case being argued later this term over government communications with social media platforms.
“Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters, and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate,” Alito wrote in his dissent that no one joined.
All in all, Monday’s action underscored where some of the justices want to go while reminding us that, even if their views enjoy majority support or sympathy, the GOP justices don’t always agree about how exactly to achieve their common goals. It also serves as a reminder that, on the 6-3 court, it takes just a bare majority of those six Republican-appointed justices to put a case on the docket.
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