Comparing the records
On many issues, Justice Kennedy has largely been in sync with his former clerk But Kavanaugh’s views of abortion laws may offer window into what could change
WASHINGTON – Republican presidents nominated 13 of the past 17 justices to serve on the Supreme Court without gaining a reliable majority. Conservatives hope President Donald Trump’s nomination of Brett Kavanaugh will change that.
A comparison of Kavanaugh’s record on the U.S. Court of Appeals for the District of Columbia Circuit with Justice Anthony Kennedy’s record on the Supreme Court leaves the degree of change in doubt.
On issues ranging from gun control and environmental regulation to corporate liability and executive power, the two men have not been far apart. When Kavanaugh’s opinions and dissents have been reviewed at the high court, Kennedy largely has agreed with his former law clerk.
It’s on the major social issues – abortion, affirmative action and gay rights, to name a few – where conservatives hope Kavanaugh will reverse Kennedy’s inclination to side with the Supreme Court’s four liberals. Had Kavanaugh been on the court in 2016, for instance, his vote might have upheld abortion restrictions and struck down racial preferences in two cases decided 5-4 the other way.
Abortion may be the best example of a likely change. Last year, Kavanaugh dissented from his court’s ruling that allowed an undocumented teen-
ager in federal custody to get an abortion. He cited Supreme Court precedents, under which he said “the government has permissible interests in favoring fetal life, protecting the best interests of a minor and refraining from facilitating abortion.”
During his confirmation hearing in 2006, Kavanaugh said he would “follow Roe v. Wade faithfully and fully. ... It’s been reaffirmed many times.” He refused to offer his personal opinion.
Kennedy sided with liberals against states seeking to impose what he considered harsh restrictions on abortion rights.
In the area of contraception, the two jurists have not been far apart. In 2014, Kennedy agreed with the Supreme Court’s conservatives that the government cannot compel corporations with religious objections to provide free birth control to their employees. The following year, Kavanaugh cited that case in a dissent from his court’s refusal to rehear a challenge to the government mandate from a religious nonprofit group.
Neither Kennedy nor Kavanaugh was adamant in his view that religion trumped regulation. Kavanaugh, in fact, drew complaints from conservatives by claiming “the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”
Regulating guns
On the Second Amendment, Kennedy sided twice with the court’s conservatives in 5-4 decisions that invalidated city bans on handguns. It’s not clear how much further he would have gone, which may be why the high court has yet to consider whether the right to possess firearms extends outside the home.
That’s something Kavanaugh resolved for himself in a case in 2011 when he dissented from an appeals court ruling that upheld a District of Columbia ban on semiautomatic rifles. Under the Supreme Court precedent set in 2008 – with Kennedy in the majority – he said it was unconstitutional.
“As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us,” Kavanaugh wrote in a 52-page dissent.
Environment
In the area of environmental regulation, Kavanaugh’s opinions have been affirmed and struck down by Kennedy’s Supreme Court. In one major case, the justices agreed with his dissent that the government must take costs into account when deciding whether to regulate power plants. Kennedy sided with the 5-4 majority.
In another case, the high court reversed Kavanaugh’s decision and upheld an Obama administration policy requiring 28 upwind states to slash emissions from power plants because of their downwind effects. Kennedy joined the 6-2 ruling in favor of the Democratic president’s policy.
Limiting government
Another subject that brings Kavanaugh and Kennedy together is executive power. In 2008, Kavanaugh dissented in a case involving a government-created nonprofit corporation that he deemed “unaccountable and divorced from presidential control,” therefore unconstitutional. The Supreme Court ultimately agreed, 5-4, with Kennedy in the majority.
The case is similar to one the appeals court decided this year involving the structure of the Consumer Financial Protection Bureau. Kavanaugh dissent- ed from the court’s ruling that the bureau is constitutional, even though its director can be removed only by the president for good cause. That case has yet to come before the Supreme Court.
Kavanaugh and Kennedy have ruled continually in favor of corporate over consumer interests. In 2011, Kavanaugh dissented from his court’s decision that corporations can be sued in the USA for human rights violations committed in countries where they invest. The Supreme Court, with Kennedy in the majority, has ruled similarly in two cases since then.