A little more than two years ago, Bloomberg published a story arguing that Brett Kavanaugh, the man that feminists desperately tried to keep off the court, might be the last, best hope to save Roe v Wade. The basic argument was that Kavanaugh seemed to have some inclination to becoming the court’s new swing vote.
Kavanaugh, who clerked for Kennedy, remained personally close to him, and observed the path (and power) of the swing justice from a front-row seat…
As the swing justice, he would often have the power to decide the law on his own. He would be able to influence both conservative and liberal justices in a wider range of cases, because they would know they needed him to win the big cases.
Some evidence suggests that Kavanaugh is indeed attracted to the significance and power that comes from the center. His voting record since joining the court is consistent with an aspiration to become the swing justice. One preliminary statistical study already puts him in the middle for the term that ended in July.
As we all know now, Kavanaugh did not become the last vote to save Roe v Wade. In fact, he voted with the conservative majority. But I guess hope springs eternal and today the LA Times has a story up titled “An unexpected check on Supreme Court’s sharp move right: Justice Kavanaugh.”
As the Supreme Court opens a new term Monday, where the conservative majority goes next depends in no small part on whether Kavanaugh aligns with Roberts, a conservative who prefers narrow rulings and gradual steps, or with Justices Clarence Thomas and Samuel A. Alito Jr., who have long sought to push the law further right.
At stake this term will be whether 2nd Amendment gun rights are expanded to include those accused of domestic violence, the legal status of abortion pills and how far conservative states can go in regulating social-media companies.
If the last year’s term was any indication, staunch conservatives may have reason to worry about Kavanaugh. He voted most often with Roberts. And he voted more often with the court’s three liberals than with Thomas, the most conservative justice.
The story then offers a list of instances in which Kavanaugh has sided with Chief Justice Roberts and the liberals on the court to create 5-4 decisions. In June, Kavanaugh voted Alabama must redraw its congressional maps.
The Supreme Court on Thursday struck down Republican-drawn congressional districts in Alabama that civil rights activists say discriminated against Black voters in a surprise reaffirmation of the landmark Voting Rights Act.
The court in a 5-4 vote ruled against Alabama, meaning the map of the seven congressional districts, which heavily favors Republicans, will now be redrawn. Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined the court’s three liberals in the majority.
He has also sided with the Biden administration in two instances involving immigration, though to be fair another recent decision favoring the Biden administration on this topic was decided 8-1 with only Justice Alito in dissent. Kavanaugh even sided with the three liberals in an EPA case which the conservatives (including Roberts) won 5-4, and restricted the definition of what counts as a wetland for purposes of federal regulation.
Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA [Clean Water Act] does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning. In an opinion joined by the three liberal justices, Kavanaugh contended that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” For example, Kavanaugh noted, under the court’s new test, the wetlands on the other side of levees on the Mississippi River will not be covered by the CWA, even though they “are often an important part of the flood-control project” for the river. Moreover, Kavanaugh added, the court’s new test “is sufficiently novel and vague” that it will create precisely the kind of regulatory uncertainty that the majority criticized.
Instead, Kavanaugh would adopt a more expansive test, under which the CWA would apply to wetlands that are either next to a larger body of water or separated from such a body of water by a man-made or natural barrier, such as a dike or a beach dune. Because the wetlands on the Sacketts’ lot “do not fall into either of those categories,” Kavanaugh agreed that they would still not be covered by the CWA.
One of Kavanaugh’s few feminist supporters, attorney Lisa Blatt, told the Times she wasn’t surprised by his sticking to the middle.
Kavanaugh’s “first five years are exactly what I thought they would be,” she says now. Although disappointed that Kavanaugh and the court overturned the right to an abortion in the Dobbs case, she said his overall record “shows he’s a mainstream conservative who is acutely aware of the practical consequences of the court’s decisions. I think this is Justice Kavanaugh’s court, meaning his vote will continue to have a decisive effect in the court’s most important cases.”
She predicts he’ll eventually be the right’s version of Justice Breyer, meaning someone who is well-liked on both sides and seen as a centrist. Of course he still has plenty of critics on the left:
“This is an incredibly conservative court, and he’s a predictable conservative vote,” said Carolyn Shapiro, a professor at the Chicago-Kent College of Law. “He’s not a moderate or a moderate conservative. He will vote with the conservatives and then try to narrow the holding.”
“I think it is important to not overstate the differences between Kavanaugh and the other conservatives,” said UC Berkeley law dean Erwin Chemerinsky. On the major cases, he has voted with the conservative majority, he said. “My sense overall is that he has had an undistinguished first few years on the court,” he added.
Kavanaugh’s critics are right that he’s not a moderate but he, along with Roberts, could still be the occasional swing-vote on this court. That might look very different if one of the conservative justices were replaced with another progressive. Under those circumstances, Kavanaugh might stick with the conservatives more and let Roberts be the swing vote. But that’s just a guess. Right-leaning judges have been known to “grow in office,” meaning they move left over time.
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