How Kavanaugh could wield power
If confirmed, he may have a lasting impact
WASHINGTON – If he wins confirmation to the Supreme Court, Brett Kavanaugh‘s influence 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 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.
“With Kavanaugh, it is extremely unlikely that he would do anything like what Justice Kennedy has done,” says David Cohen, a law professor at Drexel University.
In others, the jury is still out. Justin Walker, a University of Louisville law professor who clerked for Kavanaugh at the U.S. Court of Appeals for the District of Columbia Circuit and for Kennedy at the Supreme Court, notes Kennedy and his high court colleagues endorsed Kavanaugh’s opinions or dissents 13 times.
Kennedy’s alliance with the high court’s liberals waxed and waned over the years. Three years ago, he sided with them in eight cases decided 5-4, compared with five in which he joined the other four conservatives. This past year, however, he joined the conservatives 14 times in 5-4 cases and didn’t once side with the liberals.
Here’s a look at cases in which Kennedy joined the liberals – and where Kavanaugh might not follow suit.
“With Kavanaugh, it is extremely unlikely that he would do anything like what Justice Kennedy has done.”
David Cohen Drexel University
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 after 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.”
In a speech last year, he heaped praise on the late chief justice William Rehnquist, citing among other things Rehnquist’s dissent from the 1973 Roe v. Wade decision legalizing abortion. Rehnquist, he said, “stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people.”
Death penalty
Five times in the past four years, Kennedy provided the deciding vote for criminals on death row pleading special circumstances, including intellectual disability, judicial bias and prosecutorial misconduct.
“The death penalty is the gravest sentence our society may impose,” Kennedy said in his 2014 opinion striking down Florida’s rigid method of discerning disability. “Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.”
Robert Dunham 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 that same speech about 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.
“The nation must continue to make strides to overcome race-based discrimination,” Kennedy said in the latter case, decided last year. “It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.”
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 he 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 who were 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 was White House staff secretary at the time President George W. Bush sought a constitutional amendment banning samesex marriage, but documents from that time have not been released.
Still, Kavanaugh’s speech last year on Rehnquist may offer guidance. He praised the former chief justice for saying that rights not enumerated in the Constitution could be recognized by courts only if they were “rooted in the nation’s history and tradition.”
He said Rehnquist’s 5-4 opinion in
1997, which said assisted suicide did not reach that threshold, “stands to this day as an important precedent, limiting the court’s role in the realm of social policy.”