Jurisprudence
We may still be waiting for the true Justice Kavanaugh to stand up.
Photo illustration by Slate. Photos by Saul Loeb/AFP via Getty Images and Jason Sanderford/iStock/Getty Images Plus.
Justice Brett Kavanaugh is the most powerful and least influential member of the U.S. Supreme Court today. As the median justice, he is, in theory, the swing vote: He sits at the center, though he is not a centrist, and can create a majority with the four justices to his left or right. Yet, unlike past swing votes, Kavanaugh rarely authors important or notable opinions of the court. Actually, he doesn’t write very much at all, penning the fewest words of any justice over the most recent term. It is difficult to describe his ideology, or even attribute to him a clear legal philosophy. The best that can be said of Kavanaugh may be that he is a lot like Chief Justice John Roberts—the two men are the court’s most reliable pairing—minus the chief justice’s fluency, wit, and shrewdness.
It wasn’t supposed to be like this. During his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh styled himself as a brainy operator who combined intellectual firepower with affable moderation, in rhetoric if not in substance. He wanted to be the conservative whom liberals could respect—Justice Antonin Scalia without the volcanic temper—and the high-minded jurist who could sell right-wing legal theories to the public as common-sense constitutional principles. Over the past five years, that version of Brett Kavanaugh has receded from view. In its place has emerged a man with seemingly few fixed convictions and even fewer interesting things to say. To the extent that his colleagues think about him at all, they seem to view him as a fixer who can cobble together five votes for a diaphanous majority opinion that decides almost nothing.
Consider the justice’s majority opinions from this most recent term. He wrote just one that might be deemed major, U.S. v. Texas, which rejected Texas’ standing to challenge the Biden administration’s immigrant enforcement guidelines. The opinion is 14 pages long, shorter than Justice Neil Gorsuch’s concurrence (19 pages) and Justice Samuel Alito’s dissent (29 pages). Length, of course, is no proxy for quality. But Kavanaugh’s opinion is remarkably thin gruel. He rested his reasoning on a single sentence from an obscure case decided in 1973, transforming it into a “fundamental Article III principle” that had, apparently, been hiding in plain sight all along. He then carved a slew of exceptions to that principle, rendering its application to future disputes maddeningly unclear. A cynic might think that Kavanaugh started with the conclusion that Texas can’t seize control over immigration enforcement from the president, then worked backward to give Biden the narrowest possible win.
When Kavanaugh comes across an argument he doesn’t want to address, he has a foolproof solution: pretend it doesn’t exist. This approach has sparked increasingly vocal complaints from his colleagues. In his U.S. v. Texas concurrence, Gorsuch pointed out that Kavanaugh was “simply ignoring” several important questions that undermined his logic. Justice Amy Coney Barrett wrote her own five-page concurrence picking apart Kavanaugh’s majority opinion; the former professor couldn’t help but take a red pen to his deficient submission. (She wasn’t mad, just disappointed.) In truth, though, Gorsuch and Barrett’s objections were misplaced. Kavanaugh’s opinion was not designed to be a coherent piece of legal analysis. It was more akin to a decision memo directed at the lower courts—the kind of thing he drafted during his years as White House staff secretary.
Many Kavanaugh writings make sense only when viewed through this lens. His U.S. v. Vaello Madero opinion (six pages) announces that the Supreme Court will not grant equal rights to Americans living in the territories; unlike Gorsuch’s concurrence (10 pages), he totally failed to grapple with his decision’s reliance on openly racist precedent dismissing the rights of “the alien races.” Kavanaugh’s Reed v. Goertz opinion (five pages) directs Texas judges to stop violating the rights of death row inmates so cavalierly that Kim Kardashian has to get involved. Justice Clarence Thomas’ indignant dissent in Reed (19 pages) points out a series of errors and oversights, but they feel irrelevant: What matters isn’t Kavanaugh’s reasoning, but his ability to marshal a majority behind an opinion—any opinion—that clears a controversial case off the docket without risking bad press.
The justice’s concurring opinions often bear even less resemblance to the kind of work product that we usually identify as “judging.” As the swing vote, Kavanaugh sometimes uses concurrences to limit the scope of a liberal majority opinion, as when he opened the door to future attacks on the Voting Rights Act this June. That is, at least, a tactical move ostensibly rooted in legal principle. Other concurrences do not clear that low bar. His concurrence in Dobbs v. Jackson Women’s Health Organization proclaimed that states may not punish residents for getting an abortion elsewhere, prejudging an issue that was not before the court. His concurrence in NYSRPA v. Bruen greenlit mandatory mental health checks for gun licenses—a hotly contested issue that, once again, was not before the court. His concurrence in Students for Fair Admissions v. Harvard marked a weird attempt to frame the majority opinion as “consistent with” the precedents that it was, in fact, overturning, a dubious effort to minimize the explosive nature of the court’s decision.
This is not legal analysis, and it barely pretends to be. It is, rather, a combination of backlash management (“We aren’t that extreme!”) and policymaking of the sort that is constitutionally assigned to the democratic branches. In these concurrences, Kavanaugh sounds like a senator emerging from negotiations with his colleagues to reveal the terms of a compromise. Progressives might—or might not—appreciate his assurances, but that does not transform them into any recognizable form of judging.
When Kavanaugh does venture into legal analysis, he frequently flattens his reasoning into a single phrase that, in his telling, settles the whole ball of wax. His Dobbs concurrence, for instance, declared that the court must remain “scrupulously neutral” about abortion—using the word “neutral,” or variations of it, 12 times in 12 pages. You can’t say he didn’t preview this effort: Kavanaugh said “neutral” or “scrupulously neutral” seven times during oral arguments. (The justice often uses oral arguments not to ask questions, but to make his case to the listening public, not uncommon but done far more cannily by other justices.) In TransUnion v. Ramirez, Kavanaugh gutted Congress’ authority to create new individual rights by restating the same five words over and over again: “No concrete harm, no standing.” That was sum and substance of his justification for abolishing a power Congress had exercised for centuries. In a scathing dissent, Thomas savaged Kavanaugh for hanging his whole opinion on a “pithy catchphrase” rather than real legal analysis.
Thomas, Barrett, and Gorsuch aren’t the only members of the court who are losing patience with Kavanaugh. Justice Elena Kagan memorably castigated him for treating “judging as scorekeeping,” whining about “how unfair it is” when he loses, and repeating the same bad arguments “at a higher volume.” Justice Sonia Sotomayor has repeatedly accused him of outright dishonesty by misrepresenting precedent and dangling false promises. In a fed-up dissent in just her first term, Justice Ketanji Brown Jackson compared a Kavanaugh majority opinion to the children’s book If You Give a Mouse a Cookie. Alito’s rebuttal to Kavanaugh’s dissent in Sackett v. EPA consisted of exactly one sentence: Kavanaugh’s argument, Alito wrote, “cannot be taken seriously.”
Justices argue fiercely all the time, and we should not read too much into any one opinion. The examples above, however, are no isolated incidents; they are a trend across his tenure on the bench. There are other signs that Kavanaugh’s colleagues do not hold him in particularly high esteem: He has formed no cross-ideological alliances, like the Jackson–Gorsuch axis on some civil libertarian issues, or the Kagan–Barrett partnership on structural federalism.
The only justice who seems to smile upon Kavanaugh’s approach is, not coincidentally, also the only justice who has refrained from blasting his opinions: John Roberts. As Adam Feldman has shown on Empirical SCOTUS, Kavanaugh and Roberts are nearly inseparable, voting together in 98 percent of cases, a record on this court. Their kinship is no surprise. The chief justice, like Kavanaugh, is a George W. Bush conservative who takes a flexible approach to the law, tempering his right-wing beliefs with strategic pragmatism and a concern for the judiciary’s legitimacy. Especially after his incendiary confirmation hearings, when Christine Blasey Ford accused him of sexual assault, Kavanaugh may be eager to take shelter behind the chief’s robes. Indeed, he may be laying low in the hopes that lingering fallout from that accusation dissipates in the coming years. We may still be waiting for the true Justice Kavanaugh to stand up.
For now, perhaps Kavanaugh deserves credit for wielding his power so feebly. He resists the temptation to serve as “the Decider,” like his predecessor, Justice Anthony Kennedy, who resolved every case with sweeping pronouncements that aligned with his personal beliefs. From a certain angle, there is something refreshing about a justice who sets aside the artifice of legal reasoning in favor of gussied-up realpolitik. But this mode of judging still registers as a hard pivot away from the capital-G greatness that he chased on the D.C. Circuit. Kavanaugh once held himself out as a luminary. Now he is now settling into being a lightweight.
Jurisprudence
Neil Gorsuch
Supreme Court
Brett Kavanaugh
Clarence Thomas
John Roberts
Amy Coney Barrett
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