Ka­vanaugh off to low-key, non­par­ti­san start on court

Jus­tice of­fers a few clues about fu­ture di­rec­tion

USA TODAY US Edition - - NEWS - Richard Wolf

WASH­ING­TON – The sub­ject be­fore the Supreme Court last week was an 1855 treaty giv­ing an In­dian tribe the right to travel for trade. The ques­tion was whether Wash­ing­ton state has a right to tax what tribal mem­bers trans­port.

Near the end of the oral ar­gu­ment, As­so­ciate Jus­tice Brett Ka­vanaugh di­rected a friendly ob­ser­va­tion to the lawyer rep­re­sent­ing a tribal busi­ness.

“To state the ob­vi­ous, the value, cur­rent value of the land the tribe gave up is enor­mous, right?” Ka­vanaugh said.

“It’s a third of the state of Wash­ing­ton, I be­lieve, your honor,” Adam Unikowsky re­sponded.

The brief ex­change was em­blem­atic of Ka­vanaugh’s style dur­ing his first month on the court, which fol­lowed a con­tentious con­fir­ma­tion bat­tle that in­cluded ac­cu­sa­tions of decades-old sex­ual as­sault. So far, he has em­pha­sized “com­mon sense” over con­ser­vatism.

This week, he con­fronted Mis­souri’s state so­lic­i­tor over the state’s plan to ex­e­cute a med­i­cally com­pro­mised pris­oner by lethal in­jec­tion, de­spite po­ten­tial risks. “Are you say­ing even if the method cre­ates grue­some and bru­tal pain, you can still do it be­cause there’s no al­ter­na­tive?” Ka­vanaugh asked. “Is there any limit on that?”

“The early signs,” says Ian Mill­hiser, se­nior fel­low at the lib­eral Cen­ter for Amer­i­can Progress, “sug­gest that he is more (John) Roberts than (Neil) Gor­such.”

Ev­ery new Supreme Court jus­tice takes on the life­time ap­point­ment dif­fer­ently. As­so­ciate Jus­tice Clarence Thomas, who sur­vived his con­fir­ma­tion bat­tle in 1991 af­ter sim­i­lar ac­cu­sa­tions of sex­ual ha­rass­ment, went vir­tu­ally silent on the bench. Last year, As­so­ciate Jus­tice Neil Gor­such made clear he would be his own man, dis­sent­ing on prin­ci­ple early and of­ten.

Ka­vanaugh, by con­trast, has sought to blend in seam­lessly. He’s been col­le­gial with his col­leagues on the left and right. He’s been in­tently fo­cused dur­ing oral ar­gu­ments, like a stu­dent who sits in front and raises his hand of­ten.

He has not joined the court’s most con­ser­va­tive jus­tices in pub­lic dis­sent on two ma­jor is­sues. Nei­ther has Chief Jus­tice John Roberts.

Af­ter a testy con­fir­ma­tion process, Ka­vanaugh, 53, had good rea­son to keep a low pro­file. He was the sec­ond nom­i­nee of a con­tro­ver­sial pres­i­dent. He came with a lengthy pa­per trail – so lengthy that Se­nate Repub­li­cans re­fused to re­lease it all – that in­cluded stints in­ves­ti­gat­ing Bill Clin­ton and serv­ing Ge­orge W. Bush.

Near the end, he was ac­cused of sex­ual abuse al­legedly com­mit­ted when he was a high school stu­dent in the 1980s. He ve­he­mently de­nied the ac­cu­sa­tions.

That he has cho­sen nei­ther to fire back at his crit­ics from the bench nor ap­pear overly con­trite is ev­i­dence that Ka­vanaugh in­tends to be what he promised at his cer­e­mo­nial White House swear­ing-in last month: “a team player on the team of nine.”

“The Supreme Court is an in­sti­tu­tion of law. It is not a par­ti­san or po­lit­i­cal in­sti­tu­tion. The jus­tices do not sit on op­po­site sides of an aisle. We do not cau­cus in sep­a­rate rooms,” he said – words later quoted by Roberts in hopes of al­lay­ing Amer­i­cans’ con­cerns.

Adam Feld­man, who fol­lows the Supreme Court closely as cu­ra­tor of the Supreme Court blog Em­pir­i­cal SCOTUS, said Ka­vanaugh ap­pears to have cho­sen an “os­trich ap­proach to be­gin with.”

The court has is­sued only one writ­ten opin­ion and Ka­vanaugh wasn’t on the court to hear the case.

The court has been asked sev­eral times by the Jus­tice Depart­ment to block lower court tri­als on two hot-but­ton top­ics: ad­min­is­tra­tion ef­forts to ask about ci­ti­zen­ship on the 2020 Cen­sus, and a law­suit aimed at forc­ing a change in fed­eral poli­cies on cli­mate change.

In each case, the court re­fused the re­quest, and sev­eral con­ser­va­tive jus­tices dis­sented, in­clud­ing Thomas and Gor­such. Ka­vanaugh did not an­nounce a dis­sent, which ei­ther means he agreed with the court’s ac­tion or did not want his op­po­si­tion known.

The ab­sence of votes leaves ob­servers with just 15 oral ar­gu­ments to scour for ev­i­dence of Ka­vanaugh’s ide­o­log­i­cal in­cli­na­tions.

Faced with an Idaho man’s ef­fort to ap­peal his con­vic­tions on as­sault and drug charges de­spite hav­ing waived that right in a plea agree­ment, Ka­vanaugh said ap­peals courts like the one he served on for 12 years can han­dle such dis­putes.

“I’m not sure there’s any ev­i­dence of a prob­lem,” he said. “And if there’s not ev­i­dence of a prob­lem, why com­pli­cate the law?”

“The early signs sug­gest that he is more Roberts than Gor­such.”

Ian Mill­hiser Se­nior fel­low, Cen­ter for Amer­i­can Progress


Supreme Court As­so­ciate Jus­tice Brett Ka­vanaugh, shown here in Au­gust, was sworn in again Thurs­day dur­ing a for­mal in­vesti­ture cer­e­mony at the court.

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