This piece was originally published last month ahead of Brett Kavanaugh’s confirmation hearings. We’re resurfacing it now that he has been confirmed.
Since his nomination by President Trump in July, both supporters and opponents of Judge Brett Kavanaugh have largely agreed that he’s likely to push the Supreme Court to the right.
It’s worth remembering that Justice Anthony Kennedy, whose seat Kavanaugh would fill, sided with the court’s conservatives far more often than not. So on plenty of issues, replacing Kennedy with Kavanaugh likely won’t dramatically shift the court’s jurisprudence.
Still, a close look at the records of both men reveals certain areas — several of them core issues of democracy and the rule of law, as well as reducing gun violence and preserving access to abortion — where the change is likely to have important, even in some cases transformative, effects. The result, if Kavanaugh is confirmed, could well be a court that makes it easier to get a gun and harder to get an abortion, that aids Trump’s efforts to stonewall the Mueller investigation, and that further exacerbates the influence of big money and partisan manipulation in our elections.
This may be the single area where dramatic change is most likely. Kennedy voted to uphold abortion rights in several cases, including Planned Parenthood v. Casey (1992), which reaffirmed the central holding of Roe v. Wade, that the right to an abortion is constitutionally protected, and Whole Woman’s Health v. Hellerstedt (2016) which struck down a Texas law that would have shuttered many of the state’s abortion clinics by forcing them to comply with onerous regulations.
President Trump pledged to social conservatives that he’d appoint justices who would overturn Roe. Kavanaugh’s record on abortion cases is slim. But, despite Sen. Susan Collins’s report that he told her Roe is “settled law,” there’s reason to think he won’t disappoint. Earlier this year, in his only reproductive rights decision on record, Kavanaugh sided with the Trump administration in its effort to prevent a 17-year-old girl detained in a federal shelter at the border from getting an abortion. That decision was soon overturned by the full D.C. Circuit — prompting Kavanaugh to lament in a dissent that the court had approved “immediate abortion on demand.”
The Supreme Court’s other four conservatives all appear to be likely votes to overturn Roe. Now, with support from Kavanaugh, they could be set to fulfill a decades-long goal of the right. The result would be a host of state-level abortion restrictions or bans, dramatically curtailing access to an abortion for millions of women — disproportionately poor and nonwhite — across the country.
Kennedy appeared to take a nuanced view of the Second Amendment’s scope. He sided with the conservative majority in District of Columbia v. Heller (2008), which found an individual right to own a firearm. But that decision also established clear limitations on the weapons, people, and places that are constitutionally protected, and there’s been plenty of informed speculation that those aspects of the opinion were added to win Kennedy’s support. Since then, the Supreme Court has consistently refused to disrupt lower court opinions that upheld gun regulations, and Kennedy’s unpredictability on the issue may have been the reason why. Unlike some of his former colleagues on the high Court, Kennedy never publicly called for a more expansive view of the Second Amendment.
That’s a contrast with Kavanaugh. In 2011, he forcefully dissented from a D.C. Circuit Court ruling that upheld Washington D.C.’s ban on assault weapons. Citing Heller, Kavanaugh argued that even if the government has a compelling interest in reducing gun violence, it can’t infringe on gun owners’ constitutional rights. That stance, gun control advocates say, is an outlier position that’s on the margins of existing case law on the Second Amendment and if adopted would make it much harder to defend a host of commonsense gun laws.
The upshot: If the Supreme Court were to embrace Kavanaugh’s views, two major categories of gun law that may be poised to come before the Court soon — assault weapons bans and restrictions on the right to carry a handgun in public — would be in grave danger. More broadly, it would spur a wholesale rethinking of how lower courts have decided gun rights cases since Heller, in which the government’s interest in protecting public safety would barely register.
When it came to efforts to ensure fair election maps, Kennedy was truly a swing vote. Back in 2004, in Vieth v. Jubelirer, he sided with conservatives in rejecting a challenge to Pennsylvania’s congressional map. But, crucially, he didn’t join the four conservatives’ argument that partisan gerrymandering disputes are political issues in which the courts can’t intervene at all. Instead, Kennedy held that the courts can intervene if SCOTUS can come up with an acceptable standard to determine when a gerrymander goes too far. That opening has kept the issue alive. The court in June rejected a challenge to Wisconsin’s state assembly map, finding that the plaintiffs lacked standing, but it could well hear a similar challenge to North Carolina’s congressional map next spring.
Perhaps even more important: In 2015, Kennedy joined the court’s four liberals in a 5-4 ruling upholding states’ ability to use ballot initiatives to create independent redistricting commissions for drawing congressional lines. The four conservatives in the minority all said doing so is unconstitutional because it cuts lawmakers out of the process. Independent commissions have emerged as a hugely promising policy solution — several more states could adopt them this year via ballot initiative. Barring states from doing so would be a major blow to efforts to rein in gerrymandering.
Kavanaugh has no record on gerrymandering issues. But if he were to side with the court’s other conservatives, the result could be to give lawmakers a largely free hand to draw maps for partisan advantage and to nix a popular and crucial gerrymandering reform. Voters would be the losers.
Money in Politics
Kennedy was hardly a campaign finance reform champion. He authored the majority opinion in Citizens United (2010), the landmark ruling that struck down limits on corporate political spending, and has signed on to several other decisions over the last decade that have gravely weakened campaign finance laws. Still, important safeguards remain — including contribution limits, transparency rules, and bans on foreign spending — which means there’s room for the court to do still more damage.
Kavanaugh has signaled that he may view all three of those categories of regulation skeptically. In 2010, he wrote that political party fundraising limits might run afoul of Citizens United, saying the court may want to “clarify or refine” its approach. His views on disclosure are less clear, but in one 2016 case, he helpfully offered politically active groups a way to evade transparency rules by using their nonprofit tax status. Kavanaugh even has sought to narrow the scope of the ban on foreign spending: In 2011, he authored an opinion that upheld the ban but went out of its way to note that it barred only express campaign speech, not other types of political ads, even those clearly aimed at swaying an election. That leaves out the vast majority of the online ads through which Kremlin-linked operatives meddled in the 2016 election.
In other words, replacing Kennedy with Kavanaugh could potentially put some of the few major remaining campaign finance laws in the court’s crosshairs.
But perhaps the most politically significant shift could come on the relatively narrow question of limitations on investigations and indictments of the president. Kavanaugh’s nomination comes at a time when President Trump is reported to be in discussions with Special Counsel Robert Mueller’s office about being interviewed in the federal investigation into Russian election meddling and potential collusion by the Trump campaign.
It’s not a question Kennedy appears to have addressed directly. But Kavanaugh has argued for an expansive view of presidential power to resist investigations. In 1998, as a lawyer in the independent counsel’s office, he wrote that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is ‘out to get him.’” To be sure, that was a call for legislation, not a statement of existing law, but it offers insight into Kavanaugh’s broad views on the issue. He also has argued that all investigations and prosecutions of the president should be deferred until out of office, so that the president can focus on the job without distractions.
Kavanaugh’s views on the issue are notably out of the mainstream, constitutional experts say. It’s not hard to see how his approach, if adopted by the court, could hamstring the Mueller probe, making it harder to uncover the truth about the 2016 election and undermining the rule of law at a time when it’s already under threat.
(Image: Chip Somodevilla/Getty)