Is SCOTUS Finally Losing Patience With the Far Right’s Bogus Cases?

Last week, the Supreme Court made two big moves in hot-button cases with major consequences for civil liberties in the United States. On Monday, the court refused to take up Tingley v. Ferguson, a First Amendment challenge to Washington state’s ban on LGBTQ+ conversion therapy for minors. Then, on Wednesday, the court agreed to hear a case that seeks to ban mifepristone, the “abortion pill,” in all 50 states—making the most common method of abortion inaccessible throughout the country.

On Saturday’s Slate Plus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the court’s flurry of activity as the year draws to a close. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: The court’s decision not to take this case means Washington state’s restrictions on conversion therapy can stay in place. And I think the move was a bit of a surprise, right?

Mark Joseph Stern: Yes, absolutely. Twenty-one states and the District of Columbia have enacted some form of a ban on conversion therapy for minors. And while the court turned away these challenges in the past, the conservative majority has been dropping hints in recent years that it might be ready to abridge or abolish these laws. So when Tingley hit the docket, a lot of us thought it was time for a showdown. But that didn’t happen. Three justices—Clarence Thomas, Samuel Alito, and Brett Kavanaugh—would’ve taken up the case. And since it takes four votes to hear an appeal, that means John Roberts, Neil Gorsuch, and Amy Coney Barrett voted against taking it up. That’s quite surprising, again, because those three justices are pretty far right when it comes to these First Amendment protections for religious speech and for laws that allegedly target conservative Christians. This case seemed to serve up those issues on a silver platter.

That, of course, leads to the question of why. Before I get into my theory, what’s yours?

I’m just going to keep saying, till the cows come home, that I just do not believe at any given moment that there are five, much less six, votes on the current Supreme Court to be justices in 2027 sitting on the smoldering dumpster fire of what’s left of all constitutional theory and history. I think they’re exercising caution. That’s my working theory.

It’s a decent one! But I have another. So, the first thing I want to flag is that this plaintiff, Brian Tingley, was represented by Alliance Defending Freedom. And our dear friends at ADF have concocted a number of other high-profile cases that turned out to be fake—including last year’s 303 Creative v. Elenis, where ADF falsely claimed that a same-sex couple asked this graphic designer to make a wedding website. It was all a lie. The court ruled for her anyway, but it drew a lot of ridicule and scorn in the process.

This case seems equally fake. Brian Tingley, the plaintiff challenging Washington state’s law, refuses to say whether he wants to perform conversion therapy and whether he intends to perform it. Yet, in their filings, ADF scrupulously avoids ever saying that Tingley actually wants to counsel a gay or transgender youth to change their orientation or gender identity. Instead, the complaint is all framed in these abstractions—that he just wants to be able to participate in the debate and speak about the realities of this ongoing controversy, yada, yada, yada. Well, none of that stuff is prohibited under this law. The only thing that’s prohibited is using your time and resources as a professional counselor to try to convert a child in exchange for money.

This particular issue was spotted by Jenner and Block’s Adam Unikowsky, who represented Equal Rights Washington, a group that intervened to defend the law. Adam pointed out the plaintiff, Tingley, does not have standing because he hasn’t said that he intends, or even wants, to violate this law. It’s still completely hypothetical. Adam also made the related point that the case isn’t ripe yet: There’s not an actual dispute here, since Tingley hasn’t said he wants to do a thing that Washington state prohibits. And on top of everything else, there’s no factual record. This was a problem that plagued 303 Creative, one that I think did come back to bite the justices: There was no factual record in that case, and the few “facts” that ADF put forward turned out to be lies or exaggerations.

Adam said, Look, these laws are in almost half the states. Why don’t you just wait until a real conflict comes up, and then you can hear the case with a real factual record that shows how the state applied the law? There will be a genuine controversy for you to resolve then. But there isn’t one here, so just deny this case. And on Monday, that’s what the court did. I think Adam’s argument was powerful for some of the justices who maybe felt like they had been taken in by ADF and decided, You know, we’re not going to play the suckers in this case. Even though Roberts and Gorsuch and Barrett probably want to tackle these conversion therapy bans, maybe they realized this was not the right case to do so because it would look to the public like they were reaching out and grabbing a controversy that does not actually exist for resolution in the courts yet.

That’s a flawless segue into another case where the totality of the injury is “I might have feelings someday”: The abortion pill case that SCOTUS took up on Wednesday, where the complete theory of standing is that a bunch of doctors might someday have sadness over the possibility of future abortion.

Right. The plaintiffs challenging mifepristone, the first drug in a medication abortion, are just doctors who hate abortion. Their theory of standing is as follows: Some woman somewhere is going to be prescribed mifepristone by a different doctor. She is going to have complications. She is going to come to our emergency room. We will have to treat her by completing her abortion. And doing that will make us extraordinarily sad.

We’ll have feelings. We’ll have standing because of our future feelings.

Exactly. Treating this hypothetical future patient will hurt our hearts too badly. The vibes will be off for the rest of the week, if not the month. The office Christmas party will be ruined. And that, they say, gives us standing to sue.

I don’t think that’s what this Supreme Court wants. I think this court is going to rule against the plaintiffs solely on standing grounds and by a lopsided vote. And if it does, I think that’s a point in favor of my theory about Tingley, right? Because guess who represents these anti-abortion doctors? Alliance Defending Freedom. The same lawyers who represent Tingley. ADF fabricated this case too. It seems like maybe ADF’s history of telling shameless lies to the courts, including SCOTUS, is starting to catch up to them. Maybe justices like Roberts and Barrett are getting a little pissed that ADF is creating so much extra work for them just to please donors and achieve victories that they couldn’t through the normal democratic process.

I think it’s worth saying here that if the Supreme Court does toss the mifepristone case on standing, it’ll get headlines that say “Supreme Court Preserves the Right to Medication Abortion,” and that will dampen an immense amount of political enthusiasm around reproductive rights. The conventional wisdom will be that the Supreme Court has taken itself out of the 2024 election, at least on this issue. Which won’t be true, because the court could still invoke the Comstock Act later to make abortion illegal in all 50 states.

But the larger point is that the Supreme Court could manage to deflate all the energy and enthusiasm among women and people who’ve been organizing after Dobbs. And that would be a really big indicator that the Supreme Court keeps gaming the press. It will make the court bottom of mind as we launch into a 2024 election where the court should be top of mind.