While it is most certainly true that Judge Kavanaugh did not rule on the underlying constitutionality of what he called the “tax penalty” (and he offered a ringing critique of the government’s Commerce Clause justifications for the individual mandate), he got the fundamental question (tax or penalty?) wrong, and Justices Kennedy, Scalia, Alito, and Thomas got it right. That’s a cause for some concern.
There is also cause for concern in his reasoning in Priests for Life. His dissent reached the right result, but his reasoning was dangerously flawed in one key respect: He excessively inflated the government’s interest in facilitating access to contraceptives.
