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Is Justice Brett Kavanaugh As Bad As Democrats Feared?

Photo-Illustration: Intelligencer. Photos: Getty Images

Last year’s Supreme Court confirmation hearing for Brett Kavanaugh, and the ensuing tense and close Senate vote, were highly dramatic for the obvious reason that he had been accused of grave sexual misconduct, and of lying about it. Christine Blasey Ford’s gripping testimony, and Kavanaugh’s enraged response, will not soon be forgotten by anyone who watched these events.

But Kavanaugh’s appointment to and confirmation for the Court would have been an extraordinarily large and controversial development even if he hadn’t come to symbolize conservative white male entitlement. As the second SCOTUS appointee of a president who proudly boasted of his determination to generate a revolution in constitutional law, particularly when it comes to reproductive rights, Kavanaugh was the long-awaited prophet of salvation for conservatives, and of doom for progressives. And like his predecessor Neil Gorsuch, Justice Kavanaugh was the product of a vetting and selection process virtually guaranteed to achieve the conservative legal movement’s goals.

So as this potentially pivotal Supreme Court term unfolds, what have we learned about Justice Kavanaugh and the impact he’ll have on constitutional law and Americans’ lives? Does he represent the tipping point for a conservative majority on the Court that will soon begin toppling cherished precedents? Or will he instead, as some expect, operate cautiously, perhaps aligning himself with Chief Justice Roberts as a sort of center-right ballast that ensures the right’s revolution from above moves at a deliberate but not precipitous pace?

Here’s what we’ve learned so far:

He’s solidly conservative

Barring something entirely unforeseen by anyone, Justice Kavanaugh will not be some sort of surprise Supreme Court liberal like David Souter or a selectively progressive thinker like his predecessor Anthony Kennedy. He’s the product of a selection process designed by conservatives to prevent that. Kavanaugh’s ideological and partisan credentials are impeccable: he joined the conservative legal movement’s Federalist Society during law school, cut his teeth in law and politics as an assistant to Ken Starr during his crusade against Bill Clinton; worked in George W. Bush’s 2000 Florida recount legal team; and joined W.’s famously politicized White House legal office, specializing in judicial appointments. He’s a career conservative Republican who knows how to play the partisan game in the ostensibly nonpartisan world of the federal courts. Nothing in his record as a circuit court judge from 2006 until 2018, or his moves on the Supreme Court, betray any signs of rebellion.

He’s typically cautious and reserved

Kavanaugh is known as a clear and logical legal thinker who avoids sweeping pronouncements or stylistic excesses. He’s often been considered a “pragmatist,” perhaps in keeping with his position in the Court of Appeals that adjudicates hundreds of challenges to routine federal agency practices. These habits have given him some cover for his underlying ideology and jurisprudence. Until he decided to explode during his second set of Judiciary Committee hearings convened to deal with sexual misconduct allegations, Kavanaugh came across as a careful and even crafty jurist who wouldn’t give his political opponents much ammunition.

The New York Times’ Adam Liptak recently argued that in this regard, Kavanaugh has distinguished himself to a significant degree from Trump’s other appointee, Neil Gorsuch:

Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members.

Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court.

Liptak also observed that Kavanaugh may just be exhibiting a customary “freshman” reticence, as even Clarence Thomas did. He could let his constitutional freak flag fly in the near future.

He’s a constitutional “originalist”

As he has made very plain as a judge and in other venues (notably a 2011 roundtable discussion at George Washington University), Kavanaugh follows the late Justice Antonin Scalia in strongly believing that the judicial branch’s role is to follow the original intent of the Founders without extending constitutional rights beyond their express provisions. This contributes to a reasonably strong commitment to judicial restraint — with some exceptions in property-rights cases — but with the Constitution itself and the powers it grants to the executive and legislative branches rather than Supreme Court precedents being the preeminent guideposts. Aside from Scalia, his other publicly announced “judicial hero” is William Rehnquist, who not only dissented in the landmark abortion-rights decision of Roe v. Wade, but questioned the judicial activism the Court exercised in Brown v. Board of Education, the decision that struck down segregated public schools.

Kavanaugh’s not going to become a pioneering First Amendment champion like Kennedy if it means embracing an expansive view of civil liberties and the judiciary’s role in articulating them.

He’s no defender of reproductive rights

Even if it wasn’t evident from his service to cultural conservatives like Starr and Bush, or his Federalist Society affiliation, or his Roman Catholic faith, or his fondness for Scalia and Rehnquist, Kavanaugh has sent reasonably clear signals of his disdain for a woman’s right to choose abortion, as New York’s Irin Carmon explained prior to his confirmation:

Leaked emails today from Brett Kavanaugh’s time in the Bush White House reveal what everyone already knew: that Trump’s SCOTUS nominee will pose a threat to Roe v. Wade. To get Maine senator Susan Collins’s vote, Kavanaugh called Roe v. Wade “settled precedent,” but according to an email he wrote in 2003, “the Court can always overrule its precedent.” In other words, though Kavanaugh recognizes that the Court has repeatedly found a right to abortion, he knows he can use his power as a justice to change that.

On the D.C. Circuit, Kavanaugh dealt with a case involving efforts by anti-abortion zealots in the Trump administration to keep an immigrant in government custody from securing abortion services. Officially speaking, he just helped slow down the decision to free this anonymous Jane Doe to control her own body. But as Carmon noted, he sent some big messages, as Senator Richard Blumenthal pointed out in the Judiciary Committee hearings:

In the end, Kavanaugh didn’t manage to stop Jane Doe, but he accomplished other things in that opinion. For one thing, he didn’t assert that Jane had a constitutional right to abortion. For another, as Blumenthal pointed out, he larded his opinion with code words like “abortion on demand” and referred to “existing Supreme Court precedent” and how lower courts, at least, had to abide by it. The wording, Blumenthal remarked yesterday, is “a little bit like somebody introducing his wife to you as my current wife. You might not expect that wife to be around for all that long.”

It was after this decision that Kavanaugh got added to Trump’s pre-vetted list of SCOTUS prospects. That’s probably not a coincidence.

He believes in strong executive powers

As a jurist who frowns on judicial activism and has extensive executive-branch experience, you’d expect Kavanaugh to give a wide berth to presidential powers. He has, in fact, publicly encouraged codification by Congress of the Justice Department policy against indictment of sitting presidents, and at one point even suggested the great unanimous SCOTUS decision limiting executive privilege, United States v. Nixon, was wrongly decided. This assessment from SUNY-Albany law professor Julie Novkov seems fair:

Kavanaugh has a history of service within the executive branch, including a stint in George W. Bush’s Office of Legal Counsel and as his staff secretary. The Bush OLC crafted an extraordinarily strong theory of executive power and authority that it used to justify and defend the Bush Administration’s controversial treatment of war detainees. While Kavanaugh did assist independent counsel Kenneth Starr in his investigation of the Clinton White House, he argued in a 2009 article that Congress should enact a law preventing a sitting president from being investigated while in office.

While justices’ prior writings and opinions are not always great predictors of how a justice will rule once elevated to the Supreme Court, it seems plausible that Kavanaugh will provide a reliable fourth vote along with Alito, Thomas, and Gorsuch to support strong executive authority, especially when a conflict entails claims of a security, emergency, or military threat. He also appears to be willing to draw lines to limit the scope of investigations of the president for wrongdoing.

With a host of conflicts between the Trump administration and Congress already working their way into the federal courts, Kavanaugh could quickly reward the president for putting him in a position to defend executive powers.

He may be ready to buck Supreme Court precedent

During his confirmation hearings, Kavanaugh was grilled relentlessly on his attitude toward stare decisis, the power of Supreme Court precedents, particularly those like Roe v. Wade and Planned Parenthood v. Casey that protected reproductive rights. At one point he said the two decisions represented “precedent on precedent.” But it has never been entirely clear that he believes the deference he was required to give Supreme Court decisions as a circuit court judge is appropriate for the Supreme Court itself, particularly given the general feeling of his fellow constitutional originalists that Roe v. Wade and the Griswold v. Connecticut decision it relied upon are abominations.

So it may be significant that Kavanaugh (and for that matter, Gorsuch, Roberts, and Alito) silently concurred with Justice Thomas’s opinion in the recent Supreme Court decision of Franchise Tax Board of California v. Hyatt. In flatly overturning a long-settled Supreme Court precedent set in Nevada v. Hall, Thomas was blunt:

Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent. We therefore overrule Hall and hold that States retain their sovereign immunity from private suits brought in the courts of other States.

That’s as clear an originalist rejection of stare decisis as you could imagine, and given Thomas’s open hostility to Roe v. Wade, quite possibly a signal of big things to come, as Justice Breyer warned in a dissent. With the Supreme Court having an ever-expanding smorgasbord of state abortion restrictions to choose from if it wishes to reverse or modify Roe and Casey, Kavanaugh could indeed have the chance to add a crucial vote to a counter-revolutionary step back toward criminalized abortion. In this and other areas of constitutional law, this new and controversial justice will have an opportunity to leave his mark on all of us.

Is Justice Kavanaugh As Bad As Democrats Feared?