Focus on Kavanaugh in Texas abortion case

‘Someone who was not on the fence is probably back on the fence,’ says law professor about second look at state’s law

WASHINGTON >> Exactly two months after the Supreme Court let Texas effectively outlaw most abortions in the state, it will hear a pair of arguments today that could allow it to reverse course. Much of the attention will be on Justice Brett Kavanaugh.

The court’s call for what amounts to a do-over suggests that something is afoot among the justices, said Mary Ziegler, a law professor at Florida State University. “Someone who was not on the fence is probably back on the fence,” she said.

The vote the first time around was 5-4, with Chief Justice John Roberts joining the court’s three liberal members in dissent.

If the outcome is to be different, at least one of the members of the conservative majority will have to switch sides. The most likely candidate, legal experts said, is Kavanaugh, who has come to wield enormous power as the justice at the court’s ideological center, shares some of the chief justice’s concerns for protecting the institutional authority of the court and is sensitive to public opinion.

Over his Supreme Court career, which began in 2018 after a bruising and partisan confirmation fight, Kavanaugh has been in the majority 87% of the time in divided decisions in argued cases, beating the career records of all justices appointed since 1937.

At his ceremonial swearing-in at the White House, after an introduction by President Donald Trump, Kavanaugh made a point of saying that he was a fan of the chief justice. “Chief Justice

Roberts is a principled, independent and inspiring leader for the American judiciary,” Kavanaugh said.

He went on to vote with Roberts at a very high rate. In divided decisions in argued cases last term, for instance, the two men voted together 91% of the time, the highest rate of agreement among pairs of justices, one tied only by two members of the court’s liberal wing, Justices Stephen Breyer and Sonia Sotomayor.

All of this suggests that Kavanaugh’s vote will be the crucial one in the two challenges to the Texas law to be argued today: one from abortion providers and the other from the Biden administration.

“Kavanaugh is probably the most susceptible to changing positions, mostly because I see him as most closely aligned with the chief’s institutional-protection instincts,” said Michael C. Dorf, a law professor at Cornell University in New York. “But I don’t think he’s very susceptible.”

The very fact that the court agreed to hear the appeals to be argued today on an extraordinarily fast track is an indication that at least one member of the original majority may be in play, said Lawrence Baum, a political scientist at Ohio State.

“The recent surveys showing a decline in approval of the court among the general public seem to have made some justices more sensitive to how people outside the court are reacting to its decisions,” he said.

The Texas law bans abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. In a novel structure intended to insulate the law from federal court review, it bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs do not need to live in Texas, have any connection to the abortion or show any injury from it, and they are entitled to at least $10,000 and their legal fees if they win. Defendants who win their cases are not entitled to legal fees.

The Supreme Court’s earlier encounter with the case, culminating in an order issued just before midnight Sept. 1, left the justices bitterly divided. In an unsigned opinion in that earlier case, the five-justice majority cited “complex and novel” procedural obstacles to blocking the law and stressed that it was not ruling on the constitutionality of the law.

“The negative reactions to the Sept. 1 decision probably surprised some of the justices in the majority,” Baum said, “so that one or more of them felt a need to dispel the perception that they were responding to challenges to the Texas law in a cavalier way that simply reflected their attitudes toward abortion.”

Where does that leave Kavanaugh?

He is, for starters, the member of the court most likely to acknowledge the power of the other side’s argument.

Dissenting last year from a decision protecting LGBT workers from employment discrimination, Kavanaugh said that result was required by the text of the relevant statute. “The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’ “he said, quoting an opinion by Justice Anthony Kennedy, whom he replaced in 2018.