WHEN Brett Kavanaugh was being considered for his seat on the Supreme Court, liberals worried about his stance on Roe v Wade, the 1973 decision recognising a constitutional right to abortion. The key senator to seal Mr Kavanaugh’s confirmation, Republican Susan Collins of Maine, is pro-choice, and threw her support behind him only after she said she was satisfied he would not vote to overturn Roe. Two months into Justice Kavanaugh’s tenure, no abortion cases have come across the justices’ desks. But a pair of high-profile petitions involving funding for Planned Parenthood—a reproductive health organisation that, among other services, performs about one in every three abortions in America—had been awaiting action since late September. On December 10th, the justices finally spoke. Justice Kavanaugh voted with Chief Justice John Roberts and his four liberal colleagues to refuse to take up the cases, preserving tens of thousands of indigent women's access to contraception and other services at Planned Parenthood.

The news was something of a surprise, as Justice Kavanaugh was expected to side with his conservative brethren. But it is only thanks to a quirk of Supreme Court procedure that we discovered how he voted. Justices ordinarily keep mum when voting to grant or deny particular cases; occasionally they mark their disagreement with a denial by penning a statement explaining why their colleagues were in the wrong. If not for Justices Clarence Thomas, Neil Gorsuch and Samuel Alito’s decision to dissent publicly from twin denials in Andersen v Planned Parenthood and Gee v Planned Parenthood—cases out of Kansas and Louisiana, respectively—few would have known how the individual justices voted. But with the two other conservative justices’ names conspicuously absent from the “dissent from denial” (it takes only four justices to decide to hear a case), Chief Justice Roberts and Justice Kavanaugh were outed as having sided with the liberals.

Andersen and Gee involved disputes over Medicaid funding. Following a sensationalistic but misleading undercover exposéin 2015 that purported to show Planned Parenthood representatives embroiled in a “black market for baby parts” (they were not), the organisation faced a public backlash and threats to cut off public funding. Kansas and Louisiana promptly removed Planned Parenthood from the list of providers available to Medicaid recipients. But that move was fraught, as Congress gives people on Medicaid licence to seek care from “any institution, agency, community pharmacy or person” who is “qualified” to perform the services. People on Medicaid then sued their states to retain access to Planned Parenthood’s clinics, and trial courts and appellate courts in the Tenth and Fifth Circuits sided with the plaintiffs on a crucial threshold question. The Medicaid recipients are in fact able to sue their states, the courts held, on the theory that Kansas and Louisiana provided no legitimate reason to nix Planned Parenthood from the list of “qualified” providers.

In his rebuke to the six justices who refused to take up the cases, Justice Thomas (writing for himself and Justices Alito and Gorsuch) noted that the appeals courts are split on whether “Medicaid recipients have a private right of action to challenge a state’s determination of ‘qualified’ Medicaid providers”. With 70m Americans on Medicaid, a uniform rule across America is essential, Justice Thomas wrote, and it is the Supreme Court’s job to provide it. The dissent also lamented that states need guidance on how to manage Medicaid provider lists, and a constant threat of lawsuits from recipients puts states in an untenable position. The uncertainty in lower courts is no surprise, Justice Thomas wrote. “We created this confusion. We should clear it up.”

In the final paragraphs of the dissent, Justice Thomas took up the elephant in the courtroom. “So what explains the court’s refusal to do its job here?”, he asked. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood’.” But shrinking from the conflict for appearances’ sake is “particularly troubling”, he wrote, “as the question presented has nothing to do with abortion”. The three dissenting justices found it galling that such a consideration should lead their six colleagues to “abdicat[e] our judicial duty”.

Why, indeed, did the chief and the junior justice opt to sit this battle out? As the steward of the Supreme Court’s institutional credibility, and in light of politicised confirmation hearings that cast the Supreme Court in an unusually partisan light this autumn, Chief Justice Roberts is steering a careful course. The justices have decided three cases so far this term—all unanimously. Keeping politically charged cases off the docket seems to be par for the course. And it is no particular surprise that Justice Kavanaugh is cultivating a low profile, heading off conflicts involving poor women’s access to reproductive health services so early in his tenure.

When informed of his vote, Mrs Collins said she felt vindicated in her support of Donald Trump's second Supreme Court pick. That is a little hasty. Justice Kavanaugh has a record of scepticism regarding Roe and decades ahead of him on the bench. It would be a mistake to read too much into a single vote not to take a case that does not, after all, concern the justification or scope of abortion rights.