Kavanaugh off to low-key, nonpartisan start on court
Justice offers a few clues about future direction
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