As the United States has grown more and more ideologically polarized, the divide has been magnified on the Supreme Court. The divisions on the Court made Justice Anthony Kennedy the most powerful man in America by 2018 because he was often the Court’s swing vote on important decisions. Where the swing vote of the Supreme Court is concerned, even a minuscule tilt one way or the other results in a seismic shift from coast to coast and throughout American history.
Conservatives were fooled by Kennedy in 1987. They thought they were confirming a man who leaned to the right. He didn’t. Has the same thing happened with his protégé, Justice Brett Kavanaugh?
Donald Trump was elected for many reasons, but the most compelling for many was his promise to appoint a loyal conservative to Antonin Scalia’s vacant seat as well as to Justice Ruth Bader Ginsburg’s seat when she retired. Few expected her to remain on the bench for four more years, but her grit has proven to be more robust than the ravages of time.
Orthodox. Faithful. Free.
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When Anthony Kennedy announced his surprise retirement in June 2018 (by far his best decision as a Supreme Court Justice), people expected Trump to nominate someone at least as conservative as Antonin Scalia. For some, it was like winning the lottery—thrice. For others, it was ominous. Those odds were too good to be true.
Trump selected Justice Kavanaugh—who, like Justice Kennedy, is both Catholic and Republican. Conservatives thought they knew how Kavanaugh would rule on issues most important to Catholics, such as abortion. Some placed Justice Kavanaugh far to the right on the ideological spectrum of the Supreme Court. That appears to have been an inaccurate assumption by both overly optimistic conservatives and terrified progressives.
Justice Kavanaugh is now in his second term on the Court. Through his first term, he voted with Chief Justice John Roberts 95 percent of the time, and he voted with Justice Stephen Breyer more often than with Gorsuch or Thomas, and voted with ultra-liberals Ginsburg and Sotomayor just as often as he voted with the arch-conservative Thomas. SCOTUS-watchers have noticed the similarity in the judicial ideologies of Roberts and Kavanaugh, referring to Kavanaugh as Roberts’s wingman or calling their relationship a “bromance.”
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And what, exactly, is Kavanaugh’s voting record so far? In a word: mixed. Kavanaugh voted with the conservative justices in the case of June Medical Services LLC v. Gee, which would have allowed a new pro-life law in Louisiana (which requires physicians who perform abortions to have admitting privileges at a local hospital) to take effect without a stay during appeal.
However, he sided with the liberal justices in declining to hear the case Andersen v. Planned Parenthood of Kansas and Mid-Missouri. The State of Kansas attempted to withdraw public funding from Planned Parenthood on suspicion that they were harvesting organs from aborted babies. Planned Parenthood sued, insisting that they had a constitutional right to taxpayer monies provided by Medicaid.
Apparently, Kavanaugh was so certain that Planned Parenthood was in the right that he refused even to hear the case. “What explains the court’s refusal to do its job here?” Justice Thomas asked in his dissent. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood’.” Ginsberg and Sotomayor may be expected to take a bullet for the nation’s largest abortion provider—but Kavanaugh?
By looking at the small number of Supreme Court decisions during Kavanaugh’s first term, one can see that he has landed on both sides of the issue on cases where abortion is involved in some way. In other words, it’s by no means clear that he’s a reliable conservative even on life issues.
Many of Kavanaugh’s conservative critics had expected him to vote as a loyal, establishment Republican rather than a true-believing conservative. They assumed his faith and morals were most likely formed by progressive Jesuit spirituality. Kavanaugh’s refusal to cow before Democrats on the Senate Judiciary Committee seemed to alleviate their suspicions. Why would a mere partisan endure that kind of persecution? Yet the suspicions seem more warranted as Kavanaugh enters his second term, a term which has more hot-button cases than the Court tackled in his first term.
Maybe Kavanaugh is lying low, waiting for the perfect case to call checkmate on the culture of death. Or maybe social conservatives were fooled about Kavanaugh, just as we were fooled by Kennedy in 1987.
Photo: Retired Justice Anthony Kennedy swearing in then-Judge Brett Kavanaugh as an Associate Justice of the United States Supreme Court. (Getty Images)