With 20 remaining opinions on the Supreme Court’s docket, conservatives will soon learn whether Brett Kavanaugh is the justice they hoped he might be.
After all, Kavanaugh took the seat of Justice Anthony Kennedy, who stymied conservatives at times, siding with the left side of the bench on cases that capture the public’s attention such as abortion access, affirmative action and LGBT rights.
Seizing a rare opportunity to solidify a conservative majority for a generation, President Donald Trump chose the relatively young Kavanaugh, convinced that he had what it took after serving in the executive branch, working on independent counsel Ken Starr’s investigation of President Bill Clinton and sitting for 12 years on arguably the most powerful appellate court in the land, the US Court of Appeals for the DC Circuit.
When his confirmation hearings erupted with allegations of sexual misconduct while a teenager, conservatives stood by him, with then-White House Counsel Don McGahn arriving daily on Capitol Hill to support Kavanaugh, who has vehemently denied the allegations.
Now the President and those who worked to get Kavanaugh on the bench are in suspense, waiting to see if their calculation was correct, and they’ll get a sense of how far and how fast the conservative majority will move.
Some opponents of abortion rights had pushed for another candidate, Judge Amy Coney Barrett, and Senate Majority Leader Mitch McConnell was a fan of Judge Amul Thapar, who he once handpicked to serve as the US attorney for the Eastern District of Kentucky.
But it was Kavanaugh who got the presidential nod last July and landed under the glittering lights of the East Room.
“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,” Trump said.
Cases with political impact
Two of the most-watched cases carry major political consequences.
One of the most important cases remaining concerns the addition of a citizenship question to the 2020 census. After oral arguments, it seemed like a clear majority was poised to rule in favor of the Trump administration, upholding Commerce Secretary Wilbur Ross’ authority to add the question.
“The statute that Congress has passed gives huge discretion to the secretary how to fill out the form, what to put on the form,” Kavanaugh suggested at oral arguments.
Critics of the question say it will result in dramatically undercounting minority households, which are more likely to vote Democratic, and could impact the eventual balance of power in the US House after the 2020 census.
Another case turns on whether courts can step in and articulate a standard to police extreme partisan gerrymandering. Conservatives have suggested the issue is better left for the political branches, but challengers say the problem has become serious enough to entrench incumbents in power and that the justices need to step in and articulate a standard to combat extreme cases of district lines being drawn for partisan benefit.
At oral arguments in a case concerning a district map in Maryland, Kavanaugh – a Maryland native – flexed his knowledge of districts in his home state.
“You’ve got Easton grouped in with Carroll County, Talbot County, Wicomico County grouped in with west Baltimore,” he said.
But he also suggested that states were stepping in to do their part to address the issue and maybe courts were not the only remedy.
Another case concerns a Marine veteran, James L. Kisor, who sought disability benefits for his service-related post-traumatic stress disorder. The Department of Veterans Affairs refused to award him retroactive benefits. But lurking behind the case is a much bigger legal dispute over whether courts should defer to an agency’s interpretation of its own regulations when there is ambiguity.
Conservatives like McGahn, who attended oral arguments, believe that agencies have become too powerful, upsetting the balance of power. And they hope that Kavanaugh will be firmly on their side. Liberals argue that agency deference is important for the regulation of big business and the protection of consumers, the environment and workers.
To be sure, how Kavanaugh casts his votes in the coming days may not reflect the moves he will take over the next several years. He could be playing the long game. At oral arguments he rarely speaks first, waiting and listening to his colleagues’ questions. He sometimes writes separately to explain his vote. And even if he is not writing, his vote has made a mark.
When the government asked the court to put a lower court ruling concerning Trump’s asylum ban on hold, the court declined. Kavanaugh noted a dissent with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
Before Kavanaugh took the bench, the court had turned away several Second Amendment cases. Next term it will hear one.
When the Supreme Court declined in March to step into a religious liberty dispute concerning whether taxpayer funds can be used for the historic preservation of churches, Kavanaugh wrote separately. Joined by Alito and Gorsuch, he agreed the court shouldn’t have taken up the case at hand, but he suggested he was troubled by a lower court opinion that went against the churches.
Siding with Ginsburg?
Kavanaugh sided with the liberals on the bench to allow a group of iPhone owners who accused Apple of violating US antitrust rules to move forward with a lawsuit.
It was unusual for a junior justice to be assigned to writesuch a heady opinion, but it’s likely that Justice Ruth Bader Ginsburg, who assigned the opinion as the most senior justice in the majority, tapped Kavanaugh for strategic reasons.
“The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices,” Kavanaugh wrote in the 5-4 opinion.
There have already been a handful of 5-4 cases where the justices have broken down along familiar ideological lines, including those concerning immigration, arbitration and the death penalty. And Ginsburg predicted last week that the number of closely split cases will grow by the end of the term.
That might be just what judicial conservatives are hoping, with Kavanaugh making the difference.