By Dan Calabrese
I guess in the end it didn’t matter to Trump that Kavanaugh served in the hated Bush Administration. The Federalist Society is excited about him, most of the base adores him and there’s every reason to think he’ll be a solid fifth conservative on the Supreme Court.
You’re going to get the requisite suspicion during confirmation hearings that he’s secretly plotting to overturn Roe v. Wade, since to some people that’s the only case the Supreme Court will ever decide that matters, but Kavanaugh is a judge who rules on the basis of the Constitution, statutory law and case law. He’s not looking for an excuse to overturn a particular precedent, and inquisitors Susan Collins and Lisa Murkowski will have a hard time making the case that this is his agenda.
Here’s a summary of some of his major rulings and opinions, pulled straight from Wikipedia because everything is happening quickly tonight:
Kavanugh has stated that he considers Roe v. Wade binding under stare decisis and would seek to uphold it, but has also ruled in favor of some restrictions for abortion.
In May 2006, Kavanaugh stated he “would follow Roe v. Wade faithfully and fully” and that the issue of the legality of abortion has already “been decided by the Supreme Court.” During the hearing, he stated that a right to an abortion has been found “many times”, citing Planned Parenthood v. Casey.
In October 2017, Kavanaugh joined an unsigned divided panel opinion which found that the Office of Refugee Resettlement could prevent an unaccompanied minor in its custody from obtaining an abortion. Days later, the en banc D.C. Circuit reversed that judgment, with Kavanaugh now dissenting. The D.C. Circuit’s opinion was then itself vacated by the U.S. Supreme Court in Garza v. Hargan (2018).
Affordable Care Act
In November 2011, Kavanaugh dissented when the D.C. Circuit upheld the Patient Protection and Affordable Care Act (ACA), arguing that the court did not have jurisdiction to hear the case. In 2014, Kavanaugh concurred in the judgment when the en banc D.C. Circuit found that the Free Speech Clause did not forbid the government from requiring meatpackers to include a country of origin label on their products. After a unanimous panel found that the ACA did not violate the Constitution’s Origination Clause in Sissel v. United States Department of Health & Human Services (2014), Kavanaugh wrote a lengthy dissent from the denial of rehearing en banc.
Economics and environmental regulation
After Kavanaugh wrote for a divided panel striking down a Clean Air Act regulation, the Supreme Court of the United States reversed 6–2 in EPA v. EME Homer City Generation, L.P. (2014). Kavanaugh dissented from the denial of rehearing en banc of a unanimous panel opinion upholding the agency’s regulation of greenhouse gas emissions and a fractured Supreme Court reversed 5 to 4 in Utility Air Regulatory Group v. Environmental Protection Agency (2014). After Judge Kavanaugh dissented from a per curiam decision allowing the agency to disregard cost–benefit analysis, the Supreme Court reversed 5–4 in Michigan v. EPA (2015).
In 2015, Kavanaugh found that those directly regulated by the Consumer Financial Protection Bureau (CFPB) could challenge the constitutionality of its design. In October 2016, Kavanaugh wrote for a divided panel finding that the CFPB’s design was unconstitutional, and made the CFPB Director removable by the President of the United States. In January 2018, the en banc D.C. Circuit reversed that judgment by a vote of 7–3, over the dissent of Kavanaugh.
In 2014, Kavanaugh concurred in the judgment when the en banc circuit found that Ali al-Bahlul could be retroactively convicted of war crimes, provided existing statute already made it a crime “because it does not alter the definition of the crime, the defenses or the punishment”. In October 2016, Kavanaugh wrote the plurality opinion when the en banc circuit found al-Bahlul could be convicted by a military commission even if his offenses are not internationally recognized as war crimes under the law of war.
In Meshal v. Higgenbotham (2016), Kavanaugh concurred when the divided panel threw out a claim by an American that he had been disappeared by the FBI in a Kenyan black site.
In 2009, Kavanaugh wrote an article for the Minnesota Law Review where he argued that U.S. Presidents should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.” This article garnered attention in 2018 when Kavanaugh was considered among leading candidates to be nominated to the Supreme Court by President Donald Trump, whose 2016 presidential campaign is the subject of an ongoing federal probe by Special Counsel Robert Mueller.
When reviewing a book on statutory interpretation by Second Circuit Chief Judge Robert Katzmann, Kavanaugh observed that judges often cannot agree on a statute if its text is ambiguous. To remedy this, Kavanaugh encouraged judges to first seek the “best reading” of the statute, through “interpreting the words of the statute” as well as the context of the statute as a whole, and only then apply other interpretive techniques that may justify an interpretation that differs from the “best meaning” such as constitutional avoidance, legislative history, and Chevron deference.
Several academic studies that have attempted to measure judges based on their ideology or “Scalia-ness” have included Kavanaugh.
One study “derived ideology scores for the D.C. Circuit judges based on lawyers’ (who practiced before these judges) perceptions of the judges’ political preferences,” with Kavanaugh ranked as the fifth most conservative judge on the court. The same study praised Kavanaugh’s “ability to toe a moderate line while ruling predominantly conservatively,” as well as “his moderately conservative behavior and his high level of agreement with the other judges on the circuit.” The study further observed that “[c]ompared to the recent addition of Justice Gorsuch to the Supreme Court . . . Judge Kavanaugh uses less originalist and textualist language in his opinions although he is well-versed in statutory interpretation.”
FiveThirtyEight used Judicial Common Space scores, which are based not off of a judge’s behavior, but rather the ideology scores of either home state senators or the appointing president, to find that Kavanaugh would likely be more conservative than Justices Alito and Gorsuch, but less conservative than Justice Thomas, if placed on the Supreme Court. The Washington Post’s statistical projections predicted that all of Trump’s announced candidates were “largely statistically indistinguishable” and estimating that Kavanaugh would place ideologically between Justices Gorsuch and Alito.
Don’t freak out too much about the Roe comment. As a matter of law, he’s right. It is binding as long as it’s the ruling in force, although the truth is that Casey vs. Planned Parenthood is really the law of the land with respect to abortion. The Court will never be asked to decide, “Does Roe v. Wade stand or fall?” That’s not how the judiciary works. They may get a case in which they decide whether there’s a conflict between the Constitution and Roe in deciding the case at hand, and it’s impossible to say how Kavanaugh would come down in such a case.
He’s a solid conservative and this looks like a very good pick. And if Susan Collins is looking for an excuse to accuse Kavanaugh of not respecting stare decisis, it’s hard to see how she’s going to find it.
Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!