Kavanaugh’s word games test trust
His confirmation statements in 2018 don’t match up with his vote to overturn Roe v. Wade.
Four years ago, Justice Brett Kavanaugh survived one of the messiest, most combative Supreme Court nomination battles in American history. In the end, his supporters, including both Texas senators, asked the American people to trust him, and to trust their judgment that he was honest.
It was too much to ask. That’s obvious now. Americans’ crisis of faith in the Supreme Court, seemingly the only institution we still trusted, is bigger than one justice, of course. But Kavanaugh’s precarious ascent and his pre-confirmation assurances that have now proven disingenuous illustrate why.
At stake is the court’s legitimacy, fidelity to the rule of law and the simple belief that the smart people in black robes who enjoy lifetime appointments to interpret the U.S. Constitution will conduct themselves with integrity. Consequences of last week’s seismic breach of precedent in overturning Roe v. Wade will affect every American, even those who were celebrating their long-awaited victory as some sort of justice.
In 2018, Kavanaugh was confirmed 50-48, the narrowest margin for a successful Supreme Court nomination since 1881. The vote hinged on two matters of trust: First, he angrily denied compelling allegations of sexual misconduct from his youth. Second, he sought to reassure senators and their constituents who worried the court was poised to dispense with Roe and end the constitutional right to an abortion that had withstood repeated challenge since 1973.
On the latter issue, Kavanaugh told senators Roe was a precedent deserving respect, just the kind of vague statement many justices make when pressed by senators for something that they should never give: An explicit prediction of how they’ll rule in future cases. But Kavanaugh didn’t stop there. “One of the important things to keep in mind about Roe v. Wade,” he testified, “is that it has been reaffirmed many times over the past 45 years.” He called a crucial case that affirmed the crux of Roe, Casey v. Planned Parenthood, “a precedent on a precedent.”
Honesty questioned
Despite all that, Kavanaugh added the crucial fifth vote to the June 24 opinion overturning Roe. Given that ruling declares the 1973 decision was “egregiously wrong” when it was delivered, many are asking whether he deceived the Senate when he testified under oath.
We asked one of the senators who voted for Kavanaugh, and supports the Dobbs decision. Republican Sen. John Cornyn of Texas said Tuesday that he believed Kavanaugh was simply trying to sidestep a box no nominee should be pressed into: promising to vote in a certain way.
“I don’t think Judge Kavanaugh misled me or the judiciary committee,” Cornyn said. “This is an example of two people who hear the same word and come away from it with a different interpretation.”
Two of Cornyn’s colleagues whose votes proved necessary for Kavanaugh’s confirmation have had very different reactions. The Senate’s most conservative Democrat, Joe Manchin of West Virginia, and, arguably, its most progressive Republican, Susan Collins of Maine, have each stated that Kavanaugh had privately assured them of his support for Roe as a precedent.
Collins, who released a transcript of her notes from their meeting, insisted that Kavanaugh had stressed to her that Roe was “settled law,” giving her confidence that even a conservative majority would not overturn the decision. Both Manchin and Collins have said they were deceived.
If Kavanaugh believed what he said in 2018, why didn’t he join Chief Justice
John Roberts in upholding Roe? Roberts joined the majority opinion in Dobbs to uphold the Mississippi law restricting abortions to the first 15 weeks of pregnancy. But he issued a second opinion rejecting the majority’s unnecessary 5-4 vote to overturn Roe and Casey, which he called “a serious jolt to the legal system — regardless of how you view those cases.”
Consequences
To observe the Supreme Court in person, something few Americans have been able to do since COVID, is to understand just how much depends on faith in its rulings and the justices themselves.
The main doors to the court stand 17 feet high, are bronze and weigh 13 tons. At either side of its main entrance are large statues by the sculptor James Earle Fraser. To the left is a female figure known as the Contemplation of Justice. To the right is a male figure known as the Guardian of Law. Inside, to the east of the Great Chamber, statues of the world’s great lawgivers stand in a kind of silent majesty. There you will find Moses, Confucius and Solon, the statesman and poet credited with laying the foundation of Athenian democracy.
These impressions, along with all the archaic rituals of the court’s operations, are designed to give authority to the one branch of the U.S government whose power — even its usefulness — rest entirely on its words.
Justices have ruled in controversial ways before. Presidents from Thomas Jefferson to Franklin Roosevelt to Barack Obama have sought to rebuke and sometimes even reshape the court. But these disputes have focused on the decisions the justices make, their perspectives, their interpretations — matters of subjectivity. When we can’t trust the word of a justice, that presents a more serious threat to the court’s legitimacy.
Some on the left are calling for Kavanaugh to be impeached. Meanwhile, some are demanding censure for Justice Clarence Thomas, or at least his recusal from any cases involving the 2020 election, given his wife’s leading role in advising President Donald Trump in his scheme to illegally remain in office.
What we can say is that these calls speak to a crisis of confidence in the court unlike any other in our recent memory. Only once before has a justice been impeached, in 1804 when Jefferson persuaded the U.S. House to bring charges of partisanship and having “behaved in an arbitrary, oppressive, and unjust way” against Justice Samuel Chase, a Federalist and one of the original signers of the Declaration of Independence. He was acquitted in the Senate. Justice Abe Fortas might have been impeached in 1969, had he not resigned after financial improprieties came to light.
To understand the consequences of Kavanaugh’s apparent dissembling, begin with a simple question of whether we can trust what he has said or written.
Ever since a leaked draft of the Dobbs opinion appeared earlier this year, many worried that its reversal of Roe would provide a pathway to overturning other court precedents dealing with privacy, including those involving married adults’ right to contraception and gay adults’ right to marriage and sexual intimacy. In its majority opinion, the court said that nothing in the Dobbs decision should indicate those rights are at risk. Kavanaugh wrote separately to stress the same point. Nor, he said, would he be in favor of laws restricting travel by residents of states where abortion is illegal to seek abortion care in a state where it isn’t.
Those are important reassurances, but how much credibility should they be given, especially given a second concurring opinion, written by Thomas? Parsing his words carefully, Thomas agreed that the June 24 decision doesn’t eliminate those other rights, but stressed that the court should strike them down in future cases. They were all decided just as wrongly as Roe, Thomas wrote.
When those cases reach the court, are we expected to trust, yet again, Kavanaugh’s word that he wouldn’t go that far?
Yet another damaged institution
Support for Congress is low; and has been for years. But what feels new in America is a how widespread our distrust in institutions across the board has become, from doubts about everything from our membership in NATO to the freedom from partisanship at the CDC. Even cherished ideals, such as the peaceful transder of power or the right to vote, have come under alarming fire. The court has been an outlier, and along with the judiciary as a whole, something Americans have tended to trust.
That’s changing. A Gallup poll released last week shows a record low of 25 percent of Americans trust the court, down from 40 percent just two years ago.
The court has weathered crises of faith before, such as after its 5-4 decision in Bush v. Gore intervening in the 2000 presidential election, an opinion at least one justice, Sandra Day O’Connor, came to regret. Roberts has worked hard to lead the court since then, looking to stress areas of agreement when possible. His efforts to keep faith in the court high have been challenged by successive controversies. In 2016, the GOP-led Senate refused even to hold a confirmation hearing for President Barack Obama’s pick, Merrick Garland, and then brazenly rushed to confirm Amy Coney Barrett to replace liberal icon Justice Ruth Bader Ginsburg in the days after Trump lost the 2020 election.
Nearly a quarter-century ago, Justice John Paul Stevens, worried that the court’s decision in Bush v. Gore would cause Americans to doubt the political independence of the court, wrote:
“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.”
This time, the damage is different. It’s not only the questions about ideological or partisan biases of the justices — a charge fairly made about many who’ve worn the black robes over the years. At least when it comes to the case of Kavanaugh, the question is far more fundamental: Can we trust that what he says or writes is true?
The answer, for now, must be no — not completely. And that, all by itself, is devastating.