Brett Kavanaugh Stands Alone in Supreme Court Case

Supreme Court Justice Brett Kavanaugh found himself all alone on a case challenging federal restrictions over the funds approved by the American Rescue Plan Act (ARPA), willing to hear Ohio v. Yellen while the court's eight other justices refused.

On Monday, the Supreme Court released a new order list, granting no new cases, including one brought by Ohio Attorney General Dave Yost against Treasury Secretary Janet Yellen. "The petition for a writ of certiorari is denied," the order list reads. "Justice Kavanaugh would grant the petition for a writ of certiorari."

Yost, a Republican, had filed the suit against the ARPA's tax-cut restriction, which prohibited states to appropriate the federal funds to "directly or indirectly offset a reduction in the net tax revenue of such State or territory." However, Yellen issued new rules repealing the provision after the lower courts agreed with Yost that the restriction was unconstitutional.

Yost's lawsuit, filed in 2021, followed a letter from 21 other state attorney generals of states like Arizona and Texas requesting that Yellen confirm that the ARPA does not prohibit states from using "the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act."

Newsweek reached out to Yost via email for comment.

Kavanaugh's dissent doesn't necessarily give the public any clues about what he saw in the case, but shows that he felt strongly that the Supreme Court should have granted the case, Alex Badas, an assistant professor at the University of Houston, told Newsweek.

"Other Justices may have voted to grant, but did not feel strongly enough to publicly note their dissent from denial. Dissents from denial like this are relatively rare," Badas said, adding that certiorari votes are not publicly released unless a justice wants to note their dissent, like Kavanaugh did in this case.

Badas said one reason that Kavanaugh may have wanted the court to hear Ohio v. Yellen was because there was a circuit split about whether states have grounds to sue ARPA restrictions.

"A circuit split occurs when two or more Circuit Court of Appeals comes to different conclusions about issues of law," he said. "This creates a situation where the law's meaning varies across different jurisdictions."

Badas said the Supreme Court is more likely to hear cases with circuit splits, but that the Treasury's response to the lawsuit may have been enough to satisfy any concerns that it would continue to enforce the tax-cut restriction.

"In this case, it seems like the Treasury responded to the various court opinions by effectively changing their own interpretation of the law to resolve the differences between the circuit courts. So potentially the other Justices saw the point as moot," he said.

Mark Joseph Stern, a senior writer covering courts and the law for Slate Magazine, suggested that the reason the case was brought all the way up to the Supreme Court was because Yost wanted "a complete court victory."

"Ohio only appealed to SCOTUS out of vanity," Stern tweeted.