SCOTUS sending signals to conservatives they're not going to be 'played' anymore: experts

A surprising decision by the Supreme Court this past week to not even consider taking up a challenge to a so-called "gay conversion" ban in Washington state caught the eyes of two legal scholars who claimed members of the nation's highest court seem to have had their fill of specious far-right legal claims.

In a back-and-forth between Slate's Mark Joseph Stern and Dahlia Lithwick, Stern noted the fact that a proposed review of the Tingley v. Ferguson case received only three votes from a court with a six-to-three conservative to liberal membership.

That rebuke of the case that needed only four affirmative votes, he stated, was telling.

"So when Tingley hit the docket, a lot of us thought it was time for a showdown,' Stern admitted before adding, "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," he added.

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According to Lithwick, she believes that the court has become cautious after being burned before and added, "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."

Stern replied that the justices may believe they looked bad when they ruled on the 303 Creative v. Elenis case where he explained the Alliance Defending Freedom "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."

With that in mind, he added that attorney Adam Unikowsky implied that angle in the Tingley case, paraphrasing the attorney writing, "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."

Stern agreed and suggested, "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."

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