supreme court

On the Morning Kavanaugh Took the Bench, One Moment Stood Out

Anti-Kavanaugh protesters turn out for Kavanaugh’s first day. Photo: Tom Williams/CQ-Roll Call,Inc.

Veteran Supreme Court reporter Marcia Coyle opens her book The Roberts Court: The Struggle for the Constitution with a description of one of the institution’s timeworn traditions: the handshake each justice extends to the other eight as they enter the courtroom and take their places on the bench. Even if they’re about to hear a case or announce a decision that may tear the country in two, the judicial handshake is a reminder that they’re in this thing for the long haul and there’s no sense in being at each other’s throats in the same way Democrats and Republicans are.

If this collegial tradition held Tuesday morning in Washington, Justice Brett Kavanaugh exchanged his first handshake with what he likes to call his “team of nine” — a turn of phrase he used over and over during his combative confirmation hearings. Kavanaugh went back to it one more time during his prime-time oath ceremony on Monday night, a grotesque White House spectacle that was hardly a turning of the page — Donald Trump treated him as the victim of a #MeToo witch hunt, absolved him of all wrongdoing, and apologized on behalf of the nation.

With the other eight justices watching and probably wondering why they were even there on a weeknight — and on federal holiday, no less — Kavanaugh took his victory lap and vowed to always be a team player, above and beyond the partisan fury he displayed before the Senate Judiciary Committee merely 12 days ago. “I take this office with gratitude, and no bitterness,” he declared, all but ready to leave the mess behind. Justice Ruth Bader Ginsburg appeared to nod off in the East Room as he closed out his speech, and with good reason: The court had oral arguments bright and early the morning after.

None of this pomp and circumstance was necessary, as Kavanaugh had already been sworn in over the weekend and could’ve chosen to kick off his tenure quietly and with his head down. But after a bruising turn before the cameras, plus an unprecedented Fox News interview and non-apology in The Wall Street Journal, Trumpian triumphalism called for one last time in the spotlight. It’s campaign season, after all. Now that Kavanaugh has made it onto the nation’s highest court, where cameras are anathema, he’ll only be seen in his judicial robe in courtroom sketches and the yearly State of the Union pageantry, which he’s not obligated to attend. In the Supreme Court’s press room, I caught a glimpse of one of Kavanaugh’s first artist renderings after Tuesday’s hearing, which I attended, and there he was, looking pensive and cherubic.

Before he took his seat, familiar faces filled the courtroom. A de-robed Justice Anthony Kennedy, who swore in his former law clerk the night before, was in the house, sitting in the VIP section and taking in the scene. So was Kavanaugh’s wife, Ashley, and their two daughters. Further back, in the public gallery, were Kavanaugh’s parents, who also attended his second hearing and looked aghast as he lashed out at Senate Democrats. Noel Francisco, the Trump administration’s top lawyer before the Supreme Court, chatted with Ashley as if they’ve known each other for years — I’ll let you decide for yourself if it’s a good look for a government attorney with lots of business before the Supreme Court to do this kind of thing in this particular setting.

At 10 a.m. sharp, the courtroom was called to order. The expectation was that spontaneous #MeToo protests would break out against Kavanaugh inside the courtroom, but security was tighter than normal; I overheard a Supreme Court police officer admonishing a group of young people that any disturbances would lead to their arrest and prosecution. So maybe that and other measures had a deterrent effect. Nothing happened, although outside there were some handmaids taking a stand. And a sign outside a Methodist church right across from the Supreme Court was making a statement of its own. (A different kind of protest emerged online: BrettKavanaugh.com went live on Tuesday to raise awareness about sexual assault.)

If you’re facing the bench, Kavanaugh’s seat is on its far right, next to Justice Elena Kagan and closest to the marshal of the Supreme Court, a woman off to the side who happened to have testified on behalf of Clarence Thomas as he faced his own reckoning with sexual harassment in 1991. The seating chart, which functions like musical chairs, always changes with the coming and going of justices. Only a few years ago, Justice Kennedy and Justice Antonin Scalia flanked Chief Justice John Roberts, who runs the place and sits at the center. These days he’s flanked by Ginsburg and Thomas, the two senior-most justices and jurisprudential opposites. As the leader of the Supreme Court’s liberal wing, now outnumbered 5-to-4, expect Ginsburg to be a lead dissenter in this and future terms, for as long as God will permit her to do her job in good health.

Good cop that he is, Roberts didn’t let any of the madness surrounding Kavanaugh’s confirmation see the inside of his courtroom. It seemed as though all of Kavanaugh’s tears and outrage and suffering, which Trump complained about the night before, never existed. Or it was left in a distant past. In a ceremonial tone and for the record, Roberts said it gave him “great pleasure” to welcome his new colleague, who was all smiles. He then offered this pleasantry, with a promise of a more formal investiture at a later time: “Justice Kavanaugh, we wish you a long and happy career in our common calling.” And Kennedy, too, got a Roberts nod from the bench on the occasion of his retirement, which at the time felt more like a surrender to Trump. A big, happy family.

For now, we won’t see any of the fever-pitched legal battles we saw at the term that ended in June — in which the Supreme Court’s conservative majority, with Kennedy at the helm, gave Trump win after win and progressive causes blow after blow. Tuesday’s session, in a sense, was a good harbinger of the the sleepiness of the current docket, which so far features a number of interesting cases but nothing of the magnitude of Trump’s entry ban on Muslims or the future of public-sector unions. The Supreme Court may prefer things to stay that way for now, so as to stay as far away from the headlines following the Senate’s confirmation circus.

Kavanaugh’s first order of business was to hear a pair of cases dealing with the federal Armed Career Criminal Act, a sentencing law that’s given the justices so many headaches they aren’t even hiding their animosity toward it any more. “You might have gotten a hint that a majority of the court really hates ACCA and is picking it apart bit by bit by bit,” Justice Samuel Alito said with a straight face during Tuesday’s session. The two-hour hearing was as interesting as watching paint dry — so technical and drenched in legalese that not even Kavanaugh’s first-ever question as a justice is worth reprinting or even paraphrasing. Or later ones he asked. (Do a search for “Kavanaugh” here and here if you’re really curious.)

One moment did stand out, and it had nothing to do with Kavanaugh: At the other end of the bench, Justice Sonia Sotomayor pinched Justice Neil Gorsuch. No, really: She gave him a good pinch in the arm as she asked a hypothetical about whether “an ordinary pinch” sufficed to meet the legal requirement for an enhanced sentence under the painfully hazy Armed Career Criminal Act. Gorsuch played right along, looking playfully surprised by the hypo, as the courtroom burst out laughing by the gesture. The two of them look like they’re fast becoming a pair: They remind me of the friendship Ginsburg and Scalia built over the years, despite their divergent views about the law.

Then again, neither Sotomayor nor Gorsuch arrived at the court wounded, like Kavanaugh did. Can you imagine Kagan ever pinching her new seatmate in good fun and in open court?

At all this, the newest justice simply smiled, nodded along, and seemed to be enjoying himself — taking down notes, occasionally donning black-rimmed reading glasses, and looking down the length of the bench when the other justices spoke. For a hot second, the room seemed to have forgotten the never-ending, polarized scrimmage that got us to this very moment. I didn’t forget; I kept going back to his team-of-nine bit, an aspiration that may be beyond his reach if he lets the ghosts of his sorry Senate performance haunt him, just as he sets out to become the justice conservatives yearn for him to be.

On Morning Kavanaugh Took the Bench, One Moment Stood Out