The justices are feeling insecure.
Four members of the Supreme Court — Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and Amy Coney Barrett — all gave speeches in the last several months complaining that they are often perceived, as Barrett put it, as “a bunch of partisan hacks.”
Justice Thomas summarized these justices’ complaints at a mid-September speech at the University of Notre Dame: “The media makes it sound as though you are just always going right to your personal preference. So if they think you are anti-abortion or something personally, they think that’s the way you always will come out.”
As it turns out, the Court will hear a case on Tuesday, Cameron v. EMW Women’s Surgical Center, which tests the hypothesis that the justices are “always going right to [their] personal preference” in abortion cases.
On the one hand, Cameron involves a Kentucky state law that restricts certain kinds of abortions — and it also involves an effort by Kentucky’s Republican attorney general, Daniel Cameron, to undo the pro-abortion work of his Democratic predecessor-turned-current-governor Andy Beshear. It is a classic partisan dispute over reproductive rights, with high officials from both parties maneuvering to get the policy outcome they prefer.
On the other hand, the specific legal issue before the justices has little to do with abortion. It’s a hyper-technical procedural case asking whether Cameron may appeal a particular court order directly, or whether he must instead file a motion seeking “relief from a judgment or order” in a federal trial court. (The Cameron case should not be confused with another case being heard in December, Dobbs v. Jackson Women’s Health Organization, which is an existential threat to Roe v. Wade.)
Viewed through a partisan lens, in other words, one would expect Cameron to end in a 6-3 decision with all six Republican appointees siding with Cameron and all three Democratic appointees voting against him. This is, after all, an abortion case. We know where each party stands on abortion.
But seen through the eyes of a nonpartisan judge, Cameron is exactly the sort of case where the justices’ votes are difficult to predict and where the final vote could break down on unconventional lines. Even in an era of extreme polarization, it’s not like the national leadership of either party has strong feelings about whether the proper vehicle for Cameron to seek relief is a petition for rehearing en banc, or a motion filed under Federal Rule of Civil Procedure 60(b)(5).
Each justice will need to make a decision about how they approach this case. Will they analyze the procedural question presented by Cameron with the same objective neutrality that most justices would apply to a similar case that did not involve a politically charged issue like abortion? Or will their personal preferences overcome their legal analysis?
There’s good reason to fear that at least five of the justices will fail this test. Just last month, in Whole Woman’s Health v. Jackson, the Supreme Court considered a Texas ban on abortions after six weeks of pregnancy, which was drafted specifically to evade judicial review.
It’s hard to imagine that the Court would have tolerated a similar effort to undermine the judiciary’s own authority if a different right were at stake, such as the right to own a gun or the right to criticize President Joe Biden. And yet, five members of the Court allowed this Texas law to take effect. Now, a Texas statute that unquestionably violates decisions such as Roe v. Wade prohibits the overwhelming majority of abortions in that state.
In Cameron, the stakes are much lower. No one questions that Attorney General Cameron is allowed to press his anti-abortion arguments in court, even though the parties in Cameron disagree about which court should hear those arguments.
But the case is worth watching nonetheless, not because it is likely to end in a landmark decision fundamentally reshaping abortion rights, but because it could tell us a great deal about whether the justices are capable of thinking in a nonpartisan way whenever they are confronted with an abortion case.
What’s the actual legal issue in Cameron?
The plaintiffs in Cameron challenge a Kentucky law that prohibits doctors from using the standard method to perform “dilation and evacuation” abortions. A left-leaning panel of the United States Court of Appeals for the Sixth Circuit struck this law down. They held that it violates the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), which required courts to balance “the burdens a law imposes on abortion access together with the benefits those laws confer” in determining whether a restriction on abortion is unconstitutional.
According to the Sixth Circuit, the Kentucky law effectively required many abortion patients to undergo a medical procedure that exposes them to “additional risks and burdens” without there being any evidence that the procedure is “necessary or provide any medical benefit to the patient.” (Disclosure: The Sixth Circuit’s opinion was authored by Judge Eric Clay, whom I clerked for in 2007-2008.)
About a month after the Sixth Circuit ruled, however, the Supreme Court handed down a new decision in June Medical Services v. Russo (2020). Chief Justice John Roberts’s controlling opinion in June Medical rejects Hellerstedt’s balancing test, and thus casts a cloud of doubt over the Sixth Circuit’s decision.
Cameron, in other words, has a strong argument that the Sixth Circuit’s decision striking down Kentucky’s law should be revisited because it is at odds with the new rule announced by Roberts in June Medical.
Which brings us to the specific, extraordinarily technical procedural question before the Supreme Court in Cameron. Ordinarily, if the attorney general of a state disagrees with a lower court’s decision striking down a state law, they would simply file an appeal in a higher court (or, perhaps, ask the same court that struck down the law to rehear the case). But it is unclear whether Cameron can appeal the Sixth Circuit’s decision because of an action taken by Cameron’s Democratic predecessor.
The anti-abortion law at issue in Cameron was signed in 2018 by then-Gov. Matt Bevin, a Republican. The next year, Bevin lost his reelection bid to current Kentucky Gov. Andy Beshear, a Democrat who served as the state’s attorney general for most of Bevin’s term as governor. Yet, while the 2019 election flipped the Kentucky governorship from red to blue, that same election made Cameron attorney general — meaning that the attorney general’s office flipped from blue to red.
All of this matters because the plaintiffs in the Cameron suit initially sued four state officials in their effort to block the Kentucky law, including then-Attorney General Beshear and then-interim health secretary Scott Brinkman. (Indeed, when the case was originally filed in a federal district court, it was known as EMW Women’s Surgical Center v. Beshear.)
Shortly after the lawsuit began, Beshear successfully sought to be removed from the lawsuit as a defendant — and he agreed that “any final judgment in this action . . . will be binding on the Office of the Attorney General, subject to any modification, reversal or vacation of the judgment on appeal.” This agreement initially had little practical impact because a Republican health secretary remained a defendant, and his office continued to defend the state law in court after Beshear was taken off the case.
But Beshear’s agreement to step away from the case took on new significance after the 2019 election. Shortly after becoming governor, Beshear appointed current health secretary Eric Friedlander, and Friedlander — who by this point was the only defendant who remained a party to the case — decided not to appeal the Sixth Circuit’s decision striking down the anti-abortion law.
Cameron, meanwhile, asked the Sixth Circuit to grant him “intervenor” status — which would enable him to appeal the Sixth Circuit’s decision without having to get permission from Friedlander first. The issue now before the Supreme Court is whether the Sixth Circuit acted properly when it denied Cameron’s request to intervene. Cameron is opposed by the original plaintiffs in the case, an abortion clinic and two abortion providers.
It should be noted that, even if Cameron cannot appeal the Sixth Circuit’s decision directly, that decision is unlikely to be the final word on whether Kentucky’s law is constitutional. Under the Supreme Court’s decision in Horne v. Flores (2009), Kentucky may ask a trial court to lift the previous order blocking the anti-abortion law if “‘a significant change either in factual conditions or in law’” renders continued enforcement ‘detrimental to the public interest.’”
Thus, Cameron could file a motion in the appropriate federal trial court at any time, claiming that the Supreme Court’s decision in June Medical made “a significant change” to the law governing abortion rights — and therefore that the court order blocking the Kentucky law should be lifted.
Yet, rather than taking this step, which even the plaintiffs in the Cameron case concede that Cameron could do, the attorney general decided to take the case to the Supreme Court to fight for his ability to intervene.
There are good arguments on both sides of the narrow procedural question presented by the Cameron case
The Sixth Circuit’s order denying intervenor status to Cameron is persuasive, but not completely airtight under existing law. It faults Cameron for waiting until the last possible moment to file his motion to intervene — nine days after the Sixth Circuit had already issued its decision striking down the Kentucky law.
As the Sixth Circuit explains, if nonparties to a lawsuit are allowed to intervene this late in the process — after a trial court and an appeals court have both ruled on the case — such nonparties could game the system. “Potential intervenors,” the Sixth Circuit warns, would have “every incentive to sit out litigation until we issue a decision contrary to their preferences, whereupon they can spring to action.”
Just as importantly, while the Supreme Court has not yet weighed in on whether a nonparty to a lawsuit may intervene this late in the process — Cameron concedes in his brief that the Supreme Court “has said very little about how to judge the timeliness of a post-judgment motion to intervene, especially one filed in a court of appeals” — the overwhelming weight of lower court decisions indicate that very late motions to intervene are disfavored.
The Sixth Circuit is not the only court to weigh in on this issue. A few other appeals courts agree with the Sixth, including the Tenth Circuit, which held that “‘only in an exceptional case for imperative reasons,’ may a court of appeals ‘permit intervention where none was sought in the district court’” — in an opinion by now-Supreme Court Justice Neil Gorsuch.
These decisions are not particularly surprising. Judges of all political persuasions understand that judicial economy is an important value. At some point, litigation needs to come to an end. And that may not happen if nonparties can inject themselves into a case at a very late stage and insist that a new panel of judges should hear the case.
The best argument for Cameron’s position, meanwhile, was articulated by the Ninth Circuit in Day v. Apoliona (2007), a case where the state of Hawaii waited until after that circuit court had ruled on a case before it filed a motion to intervene. Although Day faulted Hawaii for waiting so long when it could have intervened “in this matter at any time during these proceedings, both before the district court and before this Court on appeal,” it ultimately decided to excuse Hawaii’s delay because of the court’s “discomfort with what will occur at this stage of the proceedings if its motion is not granted.”
If Hawaii was not granted intervenor status in Day, the Ninth Circuit explained, “no petition for rehearing can be filed in this Court, and there will be no opportunity for the Supreme Court to consider whether to” hear the case. Thus, Day granted intervenor status to Hawaii so that it would “not foreclose further consideration of an important issue.”
Day also captures an important judicial value which is shared by many judges across the political divide. When possible, litigation should be resolved based on the best reading of the law. And states shouldn’t have their laws permanently enjoined by a federal court because of technical procedural errors by the state’s lawyers.
At this point I will pause to note that, if I were a justice, I would vote to affirm the Sixth Circuit’s decision denying intervenor status to Cameron. While I agree with Day that state laws should not be subject to unappealable permanent injunctions because their lawyers filed a motion too late, that problem does not exist in the Cameron case. Under Horne, Cameron may still challenge the court order blocking Kentucky’s law by filing the appropriate motion in a federal district court.
But a reasonable judge could also conclude that the state’s interest in being able to directly appeal an adverse court order overcomes the ordinary rule that motions to intervene should be denied if they are filed too late.
All of which is a long way of saying that, if you ignore the fact that Cameron happens to involve an anti-abortion statute, the specific legal question presented by the case is both fairly difficult and not especially political. A truly nonpartisan Supreme Court could come down either way in the case, with liberal justices potentially siding with Cameron and conservative justices siding against him.
Cameron, in other words, is a kind of lie detector test for the Supreme Court. The justices tell us that they are capable of deciding politically charged cases in a nonpartisan way. But if this case ends with all six of the conservatives voting for the anti-abortion attorney general, and all three of the liberals voting against him, we will know that they aren’t telling the truth.
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