Even as a team of federal prosecutors begins an exhaustive review of every piece of paper generated by Supreme Court nominee Brett Kavanaugh in his Judicial and Executive branch career, one document has quickly surfaced that is certain to become a flash point in the debate over his confirmation. In September 2017, then–Circuit Judge Kavanaugh delivered a formal Constitution Day speech at the conservative American Enterprise Institute that he devoted to the legacy of his “first judicial hero,” the late Chief Justice William Rehnquist. This largely hagiographical tribute to the conservative jurist who rivaled and in some respects exceeded Antonin Scalia in influence reads today like an application to consideration for a SCOTUS appointment by a Republican president. And coincidentally or not, Kavanaugh’s name was added to Donald Trump’s famous exclusive list of SCOTUS prospects less than two months later.
The speech should give pause to anyone who has thought of Kavanaugh as an unbiased, follow-the-law-where-it-leads kind of fellow with no overriding judicial philosophy. Its point of departure is his deep appreciation, dating back to his years as the rare conservative student at Yale Law School, of Rehnquist’s revolt against the alleged excesses (some would call them great constitutional landmarks for progress and justice) of the Supreme Court during and after the Warren Court. “For 33 years, Rehnquist righted the ship of constitutional jurisprudence,” he said.
Kavanaugh then briefly touched on five different areas (criminal procedure, church-state separation, federalism, “unenumerated rights,” and administrative law) in which Rehnquist fought, with mixed success, against the “living Constitution” school that held an evolutionary view of the Supreme Court’s responsibilities for protecting rights and disciplining the states and other branches of the federal government. There will be critics who have reason to express deep concerns about Rehnquist’s, and hence Kavanaugh’s, views in all five areas. But the one most likely to hang fire immediately given the dynamics of the confirmation debate is the topic of “unenumerated rights,” where Rehnquist’s long and futile battle to stop and then reverse Roe v. Wade is the key example.
From the point of view of many, and perhaps most, conservatives, Roe was and remains the supreme example of a liberal Court devising a new constitutional right out of thin air to achieve a desired policy result — in this case a right to privacy that had been recently identified by the Court in Griswold v. Connecticut, a decision that struck down a state ban on sale of contraceptives. Rehnquist wrote a vigorous dissent in Roe and, 19 years later, penned the chief dissent joined by three other justices in the case that ended the most serious threat to Roe, Planned Parenthood v. Casey, writing:
We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.
Kavanaugh does not see fit to mention in the AEI speech that his own “mentor,” Anthony Kennedy, cast the deciding vote to maintain Roe (while restructuring quite a bit of its practical holdings) in the Casey case. But the fact that he includes Rehnquist’s fight against a constitutional right to an abortion in a laudatory tribute to the former Chief Justice’s legacy will be seen as a smoking gun by those who fear Kavanaugh will succeed where his “first judicial hero” failed.
Now, a careful reading of Kavanaugh’s text shows how he (and his defenders) might evade a charge that he has prejudged a challenge to Roe. Aside from mentioning the power of precedent (e.g., the doctrine of stare decisis inhibiting reversal of the Supreme Court’s constitutional holdings), he places great stress on Rehnquist’s judgment that at the time of Roe there was no basis in the “traditions and conscience of our people” for identifying an unenumerated right to an abortion, the logic being that the overwhelming majority of states reflected the view of the public in banning most abortions. You could make the argument that after 45 years of legalized abortion in the United States, the “traditions and conscience of our people” have shifted, providing a basis now if not then for Roe’s identification of a constitutional right. Between that and stare decisis, it is possible that a Justice Kavanaugh could claim to be true to Rehnquist’s legacy while at least proceeding cautiously on reversing Roe.
The other, and much better known, bit of evidence about Kavanaugh and abortion law, interestingly enough, arose shortly after his AEI speech, and also before his elevation to the Trump SCOTUS list, in a complicated D.C. Circuit case (Garza v. Hargan) involving efforts by an undocumented immigrant in federal custody to secure an abortion against the wishes of her abortion-opposing captors. Kavanaugh helped form the majority of a three-judge panel that overrode a district judge’s order that the woman be set free to terminate her pregnancy — but to the chagrin of some RTLers, he didn’t flatly deny she had a right to an abortion once she had jumped through all the procedural hoops the Feds had imposed in their efforts to run out the clock (the decision was ultimately reversed by the full D.C. Circuit with Kavanaugh dissenting). As Ian Millhiser has observed, as a lower-court judge Kavanaugh was bound by SCOTUS precedents on abortion in a way that SCOTUS itself is not necessarily bound. So the fact that his position in Garza coincided with the result abortion opponents wanted could matter more than his exact reasoning.
If nothing else, the AEI speech in combination with the D.C. Circuit decisions will make it difficult if not impossible for Kavanaugh supporters to pretend that he hasn’t thought long and hard about the constitutional status of legalized abortion. And any notion that he’s some sort of constitutional “moderate” must now contend with Kavanaugh’s own forceful self-description as a disciple of one of the Court’s great reactionaries. Pro-choice Republican senators Susan Collins and Lisa Murkowski must now choose between a willful refusal to pay attention to Kavanaugh’s own words, or demand that he answer some pointed questions about Roe and Casey that might later constrain his and the Court’s willingness to sweep away the right to choose.