Brett Kavanaugh and Critical Issues that Depend on the New Supreme Court Nominee
Justice Kennedy’s replacement on the Supreme Court will likely be the swing vote on a number of key issues.
Kavanaugh has a track record supporting significant obstacles to a woman’s terminating a pregnancy and is very likely to vote with the conservative majority that wants to return to the states the issue of whether the government can force women to carry pregnancies to full term.
- Restrict the Environmental Protection Agency from fighting climate change
Kennedy was the swing vote in the Court’s decision that the U.S. government was legally obliged to fight climate change—Kavanaugh’s record suggests he is unlikely to vote the same way.
It is unlikely that Kavanaugh will support race-based affirmative action in admissions to public educational institutions—as Kennedy did—given his record of supporting the Center for Equal Opportunity, which supports the current lawsuit against Harvard’s admissions policy.
Kennedy’s replacement is unlikely to have the same skepticism of capital punishment and strong opposition to solitary confinement.
Kennedy brought a nuanced understanding privacy and first amendment rights to the Court. It’s likely the Court will face be many high-tech cases in the near future. Kavanaugh made a “truly expansive” ruling in the case of the NSA’a collection of call data placing national security well above individual’s privacy and first amendment rights.
Kennedy was viewed as a potential 5th vote in challenges to partisan gerrymandering—his replacement will likely vote the other way.
Obergefell was a 5-4 decision and already states such as Texas are passing laws limiting protections for same sex marriage. If Kavanaugh rules against Roe, Obergefell would likely be next since it is based on the same constitutional grounds.
- Maintaining the wall of separation between church and state
There are several on-the-record indications from Kavanaugh that he favors lowering the wall that separates church and state.
- Obamacare/coverage for preexisting conditions
The Supreme Court will soon be ruling on the ACA’s requirements of preexisting conditions. Kavanaugh has argued that the president could decline to enforce a statute such as Obamacare.
- Potential criminal investigation of Trump
Trump’s new appointee could be the deciding vote on a criminal investigation of Trump himself. Kavanaugh has written that sitting presidents should not be subject to criminal or civil actions.
- Reproductive rights/Allow states to outlaw abortion
According to Politico : “President Donald Trump’s pick for the Supreme Court won’t have to wait long to make a potentially historic decision on abortion rights. A slew of abortion-related cases is working its way through lower courts, dealing with questions about when abortions should be allowed, or which procedures doctors can perform to terminate a pregnancy. Any of these could become opportunities for the justices to address fundamental questions about the legal right to abortion in the United States, putting Roe v. Wade in the Supreme Court’s sights.”
Overturning Roe would return the U.S. to the situation preceding it, when states were free to limit abortion rights. The Center for Reproductive Rights provides a state-by-state analysis of “What if Roe Fell?” 23 states could ban abortion rights outright if Roe were overturned, based on current legislation.
According to Politico’s Mark Joseph Stern, Kavanaugh “was forced to confront the abortion question in 2017 after the Trump administration barred an undocumented minor, known as Jane Doe, from terminating an unwanted pregnancy. The American Civil Liberties Union sued on Doe’s behalf, and the dispute came before a three-judge panel at the D.C. Circuit that included Kavanaugh. His opinion looked pragmatic on its face but would have effectively prevented Doe from getting an abortion. It was swiftly reversed by the full circuit. An angry Kavanaugh rebuked the circuit court saying it had “badly erred.”
David Super writes in the LA Times, that, of the many very conservative judges around the country, Kavanaugh was among the handful that the Federalist Society short-listed and sent to Trump. What almost certainly made Kavanaugh (and the others picked by the society) stand out is that they gave the list-makers maximum confidence they would cast the decisive vote against Roe.
Two potentially mitigating factors could affect the outcome.
- According to Slate’s historical analysis, “When [pro-lifers] accumulate enough justices to threaten Roe, they scare pro-choicers into voting on the issue. It’s no accident that in 1990, for the first time, the number of pro-choicers who made voting decisions based on abortion exceeded the number of pro-liferswho did so.” In other words, upcoming campaign and its aftermath could shift voters to voting their pro-choice beliefs, which means (usually) voting Democratic.
- The Washington Post’s David von Drehle, the Supreme Court’s 1992 Caseydecision reaffirmed Roe and situated abortion rights more clearly within the broad stream of 14th Amendment protections that cover romantic, family and sexual autonomy. It scrapped Blackmun’s trimesters in favor of infant viability outside the womb. It dialed down reverence for doctors while dialing up awareness of burdens placed on women. In the process, the Casey majority — which included authors personally opposed to abortion — did something rare in Supreme Court rulings. Rather than simply cite the earlier decision as a precedent, Casey put Roe v. Wade on trial, weighing in detail the arguments for and against overturning the ruling. After closely examining Roe’s constitutional strengths and vulnerabilities, Casey reaffirmed its core holding. Namely: There are limits on the government’s power to compel a woman to carry a pregnancy to term.
Lawrence Tribe opined the following via Twitter:
If SCOTUS overturns Roe v. Wade in 2019 or 2020, I’d predict a massive backlash: Dems would win the presidency and both the House and Senate in Nov 2020, and Congress would enact a law adding 2 seats to SCOTUS in 2021 or 2022. Remember there’s no constitutional magic in nine.
- Restrict EPA Actions Against Climate Change
The key issue is a 5-4 landmark decision in 2007 in which Kennedy was the 5th vote that determined “the EPA is required to address climate change if its own scientists found that it posed a risk to public health. Two years later the agency made exactly that determination, issuing a scientific document known as the endangerment finding.”
Many conservatives consider the endangerment finding an overreach and believe that climate change is a hoax. Scott Pruitt, former EPA head, said “We’ve been spending many months evaluating Section 111 of the Clean Air Act to ask and answer the question what authority exists.” “That is ongoing and will be ongoing for months into the future.” The result of the EPA losing authority to address climate change would effectively leave the U.S. without any federal tool to address climate change.
Kavanaugh certainly supports the conservative position. In 2012, for example, he wrote a decision that rejected EPA’s attempt to curb air pollution that crosses state lines. According to Politico, he has often leaned toward restricting the EPA’s powers when he believed the agency lacked specific authorization from Congress, including in courtroom comments surrounding the Obama administration’s climate rules for power plants.
- Ban race-based affirmative action
Kennedy was the deciding vote (4-3) upholding the University of Texas’ program aimed at achieving diversity. Now, anti-affirmative-action activists are pursuing a lawsuit against Harvard, arguing that the elite school discriminates against Asian-Americans in order to meet certain goals for the racial makeup of its student body.
In 1999, Kavanaugh wrote an amicus brief for the Center for Equal Opportunity (which supports the current campaign against Harvard) opposing a law in Hawaii that permitted only native Hawaiians to vote in elections for the Office of Hawaiian Affairs on the grounds that it unconstitutionally prohibited people from voting on account of their race. The Supreme Court agreed, 7-2.
- Uphold capital punishment and solitary confinement
Prior to Kennedy’s retirement, there appeared to be a five-justice majority on the Supreme Court for sharply limiting solitary confinement in America, according to Vox. Without Kennedy, that majority has evaporated, likely replaced with a harder-line majority that could preserve the practice.
In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death-penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his 25-plus years in prison.
(Haven’t found any reliable information on Kavanaugh and solitary confinement/capital punishment)
- Limit consumers’ digital privacy rights
While Kennedy was not a consistent vote in support of digital privacy rights, he was, according to Wired, he was a thoughtful voice on how to interpret rights enshrined in the Constitution (1st and 4th Amendments) in light of rapidly changing technologies. “Kennedy’s departure leaves the door open for Trump to nominate another conservative justice, tilting the court farther right at a crucial time in American history. It’s unclear how exactly the new justice may address similar technological issues in the future. At stake is how US Constitutional law will adapt for an era in which the government has developed unprecedented surveillance capabilities and a narrow group of tech companies have amassed an unprecedented amount of power.”
According to Vox, Kavanaugh has “ruled in favor of the National Security Agency’s expansive call record surveillance operation, arguing that collecting these records did not constitute a ‘search,’ and that even if it did, the government can take such records if it has a “special need” to prevent terrorism, even if this burdens the constitutional rights of those searched. That’s a truly expansive rationale that makes even many conservatives uneasy.”
- Aggravate partisan gerrymandering
Kennedy was far from a reliable vote on voter ID and other laws restricting access to the vote, he served as the “leading hope for proponents of a new wave of voting-rights litigation: suits claiming that partisan lawmakers are violating the Constitution and the Voting Rights Act by using sophisticated computer programs to draw contorted districts that virtually guarantee which party will hold the seat.”
Kennedy was seen as a potential fifth vote in favor of such challenges because back in 2004, in turning down a challenge to a congressional redistricting plan in Pennsylvania alleged to favor Republicans, he said he might sustain such a suit “if some limited and precise rationale were found to correct an established violation of the Constitution.”
As a judge on the DC Circuit Court of Appeals, Kavanaugh voted in 2012 to uphold a South Carolina voter ID law that the Obama administration said would disenfranchise tens of thousands of minority citizens.
7.. Allow states to outlaw same sex marriage
According to Slate, Kennedy’s gay rights opinions place three fundamental limits on the government’s ability to discriminate against gays. First, the government may not act out of mere “animus” toward sexual minorities. Second, the government may not outlaw sexual intimacy between individuals of the same gender. Third, the government may not refuse to license same-sex marriages or treat those unions differently from heterosexual marriages. Taken together, these rulings led gay Americans out of second-class citizenship, affirming their constitutional right to equal treatment by the state and federal government.
Kavanaugh is “all but assured…to share the conservatives’ [on the Court] opposition to gay rights.” And states are already at work on this: the Texas Supreme Court, for example, refused to extend spousal benefits to married same-sex couples.
According to David Super in the LA Times, “the court grounded its most important decisions protecting same-sex couples on the same right to privacy that underlies Roe. The most straightforward way to eliminate constitutional protection for the right to abortion is to reject or limit the right to privacy. Doing so would also remove the constitutional foundation for protecting same-sex couples. A decision against Roe implies that marriage equality too would be imperiled.”
- Maintain the wall separating religion and the state
Susan Jacoby in the NYT identified this issue in light of Trump supporters’ desire to entangle (Christian) religion and the U.S. state.
According to Politico, Kavanaugh has suggested “he may be open to widening the flow of public funding to religious schools. In an essay last year for the American Enterprise Institute, he cheered the late Chief Justice William Rehnquist’s efforts to reverse prior Supreme Court attempts at “erecting a strict wall of separation between church and state” — especially when it comes to schools. He also predicted during a CNN appearance in 2000 that the court would one day uphold school vouchers. Kavanaugh also wrote a friend-of-the-court brief in December 1999 in favor of a Texas high school’s policy allowing the use of a public address system for student-led and student-initiated prayers at school football games.”
- Obamacare/coverage of preexisting conditions
The Trump administration last month “took dead aim at what’s left of the Affordable Care Act after last year’s botched attempt to repeal the law. The Trump administration joined a lawsuit by 20 states that would, if successful, end the requirement that health insurers cover those with preexisting conditions. The case is due to be heard in district court in Texas and could wind up before the Supreme Court — and Kavanaugh — soon.”
One of the likely reasons that Trump picked Kavanaugh is his expansive view of executive power — Kavanaugh has argued that a president could decline to enforce a statute such as Obamacare even if a court upholds its constitutionality — and his dissent in a 2011 case in which others on his appellate court upheld the constitutionality of the Affordable Care Act.
- Potential criminal investigation of Trump
Lawrence Tribe argues that a “president under active criminal investigation of whether he won legitimately and whether he has obstructed that very investigation should not be permitted by a mere Senate majority to designate the justice whose votes could prove pivotal [his] fate.
One reason that Trump may have been attracted to Kavanaugh is his argument in a 2009 law review article that the president should be exempted from both criminal prosecution and civil suits while in office. “No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. … The President’s job is difficult enough as is.”
It should be noted that Kavanaugh, earlier in his career was a lead author of the notorious 1998 Starr report, which took a very hard line regarding the grounds for impeaching President Clinton, laying out 11 grounds for Clinton’s impeachment, including obstruction of justice and lying under oath.
As Josh Marshall observed in Talking Points Memo, Kavanaugh “[has shown] a judicious flexibility to allow his views to evolve as they were applied to either Democrats or Republicans, to political foes or friends. There is nothing more pressing and relevant in this political moment than the President’s subservience to the rule of law. Kavanaugh has been all over the map on that question, depending on whether the President was a Republican or Democrat. That all needs to be sorted out before he becomes the deciding vote on whether President needs to answer to the law.”