Since President Donald Trump nominated him Monday night, critics have been jousting over where exactly nominee Brett Kavanaugh would fit on the Supreme Court’s ideological spectrum. But no matter where he falls among justices on the right wing, two things are certain: He is no Anthony Kennedy. And he is ready.
Over his dozen years on the US Circuit Court of Appeals for the District of Columbia Circuit, Kavanaugh has shown a more confident conservatism than Justice Kennedy, the 30-year veteran he would succeed. Kavanaugh takes a high-altitude approach, espousing broad constitutional principles. As a result, he stands to be more than just a reliable vote for the right. He could powerfully influence the country’s legal agenda for decades.
Kavanaugh’s writings already have been cited in Supreme Court rulings, as in a 2013 decision preventing certain US lawsuits against foreign corporations alleged to be responsible for human-rights abuses abroad and a 2015 decision stopping the Environmental Protection Agency from regulating mercury emissions from coal-fired plants without taking account of costs.
Having navigated Washington’s corridors of power since the 1990s, Kavanaugh, 53 and known for his personable ways, could also be more persuasive with his colleagues than other new justices.
Kavanaugh’s hard-line conservative record, compared with that of retiring centrist-conservative Kennedy, would mean diminished individual rights for women and minorities, affecting access to abortion and opportunities for racial affirmative action. On larger questions involving government power, a new Justice Kavanaugh could mean further reining in of environmental regulations and consumer protection.
Based on past his past writings, Kavanaugh would also bolster the power and prerogatives of the President – an area likely to elicit particular Senate attention because of special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 presidential election and ties to the Trump campaign.
DC Circuit opinions
Many justices in recent years have been elevated from the powerful DC Circuit, which handles important disputes over government power, but only Ruth Bader Ginsburg’s tenure rivaled Kavanaugh’s. She served for 13 years on the DC Circuit before President Bill Clinton in 1993 named her to the high court.
Kavanaugh’s opinions reflect a well-developed approach to curtailing regulatory authority as well as narrowing individual civil rights.
“This is a case about executive power and individual liberty,” Kavanaugh wrote earlier this year as he dissented from an opinion by the full DC Circuit upholding the constitutionality of the Consumer Financial Protection Bureau, run by a single director.
“To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government,” he continued.
Independent agencies, he added, are “a headless fourth branch of the U.S. Government (that) hold enormous power over the economic and social life of the United States.”
When he dissented from a DC Circuit decision last October preventing the Trump administration from blocking a teenage migrant in Texas from obtaining an abortion, Kavanaugh laced his opinion with broader thoughts.
He stressed that the “government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” Kavanaugh endorsed the administration’s effort to block the procedure, at least until the girl could obtain a sponsor, a process that could have taken weeks and made it more difficult to terminate the pregnancy. (The majority position allowed the girl to immediately obtain an abortion.)
As Kavanaugh asserted that the majority’s decision represented “a radical extension of the Supreme Court’s abortion jurisprudence,” he added, “It is undoubtedly the case that many Americans – including many Justices and judges – disagree with one or another aspect of the Supreme Court’s abortion jurisprudence.”
“From one perspective,” he wrote, assessing the abortion debate, “some disagree with cases that allow the Government to refuse to fund abortions and that allow the Government to impose regulations such as parental consent, informed consent, and waiting periods… From the other perspective, some disagree with cases holding that the U.S. Constitution provides a right to an abortion.”
In 2011, the dispute over the President Barack Obama-sponsored Affordable Care Act, came before Kavanaugh’s court.
Kavanaugh dissented as the DC Circuit upheld the ACA’s crucial mandate for individuals to buy insurance by 2014, asserting that it was too early to hear the controversy over a tax-related matter.
In doing so, Kavanaugh invoked Chief Justice Charles Evans Hughes and the lessons of the court in the early 20th century: “(H)istory and precedent counsel caution before reaching out to decide difficult constitutional questions too quickly, especially when the underlying issues are of lasting significance. After all, what appears to be obviously correct now can look quite different just a few years down the road.”
Some conservative critics faulted Kavanaugh for not taking up the merits of the dispute and declaring the ACA unconstitutional. But such critics were even more outraged when Republican-appointee Chief Justice John Roberts cast the deciding vote at the Supreme Court, in 2012, to uphold the ACA requirement that all Americans buy health insurance.
On the current Supreme Court scale, Kavanaugh might compare to Justice Samuel Alito, a 2006 appointee and unflinching conservative. It is unlikely that Kavanaugh would land at the outermost pole of the court, where Justices Clarence Thomas and Neil Gorsuch, Trump’s first appointee, have aligned.
Kavanaugh also appears readier than Gorsuch to finesse relations in the distinct social milieu of the nation’s highest court, where the nine are thrown together in closed quarters – for life. (Early on, Gorsuch resisted some of the institutional traditions that matter to Roberts, and had a few testy public exchanges with Ginsburg. But he appears to have settled in at the end of his first full term.)
That would make Kavanaugh – in a social vein – more like Justice Elena Kagan, a 2010 appointee of Obama who had similar executive branch experience and took steps early in her court tenure to ensure smooth relations with Justice Antonin Scalia on the right as well as Ginsburg on the left.
It just so happened that on Monday night when he accepted Trump’s nomination, Kavanaugh went out of his way to salute one of the justices with whom he would work.
In a part-time post at Harvard, he said, “I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan.”