Kavanaugh could impact abortion, death penalty
He could tilt balance in abortion, death penalty
If he wins confirmation to the Supreme Court, Brett Kavanaugh’s impact could extend from cradle to grave. He could shift the balance on cases involving abortion, capital punishment and gay rights.
WASHINGTON – If he wins confirmation to the Supreme Court, Brett Kavanaugh‘s impact could extend from cradle to grave.
Because he would replace retired justice Anthony Kennedy, who occasionally sided with the court’s liberal wing, Kavanaugh particularly could shift the balance on cases involving abortion, capital punishment, racial discrimination and gay rights.
A review of cases in which Kennedy cast the deciding vote over the dissent of his fellow conservatives – combined with a review of Kavanaugh’s rulings and writings – reveals the areas of law most likely to change.
Kennedy’s fifth vote struck down state bans on same-sex marriage in 2015. The following year, he upheld the limited use of racial preferences in college admissions and struck down excessive restrictions on abortion rights.
Sprinkled throughout his 30-year Supreme Court career were votes in favor of criminal defendants, notably those on death row. Together with the court’s
Kavanaugh has no judicial record in gay-rights cases, leaving his supporters and detractors to speculate how he would vote.
four liberal justices, he spared juveniles and people with intellectual disabilities from the death penalty.
In some of those cases, there are indications from Kavanaugh’s opinions, speeches and articles that he would have been on the other side.
In other cases, the jury is still out. Here’s a look at cases in which Kennedy joined the liberals – and where Kavanaugh might not follow suit.
Abortion
Kennedy voted in 2016 to strike down restrictions on abortion clinics and doctors in Texas that had created hardships for thousands of women, without sufficient health benefits.
The case was decided 5-3 following Justice Antonin Scalia’s death. A generation earlier, Kennedy also helped preserve abortion rights in the 1992 case Planned Parenthood v. Casey, decided 5-4.
Kavanaugh’s only abortion ruling came last year, when he dissented from the appeals court’s decision allowing an undocumented teenager in federal custody to get an abortion. He said the government “has permissible interests in favoring fetal life, protecting the best interests of a minor and refraining from facilitating abortion.”
Death penalty
Robert Dunham, executive director of the Death Penalty Information Center, says cases based on an “evolving standard of decency” under the 8th Amendment hinged for many years on “whatever Justice Kennedy thought it meant.”
In a speech about the late William Rehnquist, Kavanaugh cited approvingly the chief justice’s dissent from the Supreme Court’s 1972 decision striking down state death penalty statutes. He cited this passage from the dissent:
“The most expansive reading of the leading constitutional cases does not remotely suggest that this court has been granted a roving commission, either by the founding fathers or by the framers of the 14th Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this court.”
Race and gay rights
In just the past three years, Kennedy provided the deciding vote to allow some use of racial preferences in college admissions, make it easier to prove housing discrimination, strike down election districts that packed in black voters and overturn a conviction because of a juror’s racist comments.
Kavanaugh in 2012 voted to delay but uphold a South Carolina law requiring that voters have photo IDs, even though minorities more often lack them. He reasoned that the law allowed for exceptions that would ease its burdens on racial groups.
But Kavanaugh also told the Senate Judiciary Committee that among his 10 most significant opinions was one siding with a Fannie Mae worker who complained after being called the “n-word.”
“No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans,” he wrote in that case.
Kennedy is best known for several opinions that expanded the rights of gays and lesbians, culminating in the 2015 decision that legalized same-sex marriage nationwide. Two years earlier, he was the deciding vote in striking down the federal Defense of Marriage Act, which denied federal benefits to same-sex couples already married in some states.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy said in 2015. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Kavanaugh has no judicial record in gay-rights cases, leaving his supporters and detractors to speculate how he would vote. He served as White House staff secretary at the time President George W. Bush sought a constitutional amendment banning same-sex marriage, but documents from that time have not been released.