Kavanaugh on presidential power: Law-review article on investigations of sitting presidents

Kavanaugh on presidential power: Law-review article on investigations of sitting presidentsSenators considering President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court will undoubtedly be giving a close read to a law-review article the judge published in 2009, entitled “Separation of Powers During the Forty-Fourth Presidency and Beyond.” The article has already engendered substantial debate over whether it suggests that a Justice Kavanaugh […]

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Kavanaugh on presidential power: Law-review article on investigations of sitting presidents

Senators considering President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court will undoubtedly be giving a close read to a law-review article the judge published in 2009, entitled “Separation of Powers During the Forty-Fourth Presidency and Beyond.” The article has already engendered substantial debate over whether it suggests that a Justice Kavanaugh would conclude that Trump is immune from criminal investigation or prosecution while in office. I will examine that question below, but the article also discusses several other separation of powers issues worth noting, many of which may shed some light on how Kavanaugh might address a number of issues that regularly arise in the Supreme Court.

Introduction

It’s important at the outset to describe what the article is, and is not, about. For the most part, the article presents a series of policy – not legal – arguments and recommendations for improving the functioning of the federal government (particularly the executive branch) in light of Kavanaugh’s extended experience in a number of different executive branch positions, including in the White House. Any predictions about how Kavanaugh would rule on similar questions as a matter of constitutional law are necessarily based on inferences. While some cynics may disagree, I think it is a serious mistake to simply assume that any judge’s policy recommendations will automatically be converted into constitutional holdings if he or she is elevated to the Supreme Court. At the same time, for those trying to gauge what kind of justice Brett Kavanaugh would be, ignoring the recommendations in the article, and the reasoning behind them, would be a mistake, too.

With that in mind, the basic project of the article is to set out five basic sets of recommendations for improving how the government functions. Below, I’ll describe the ones that seem most relevant to the Supreme Court nomination and offer some observations about what the recommendations might augur for Kavanaugh’s tenure on the Supreme Court, should he be confirmed.

Temporary deferral of civil suits and criminal prosecutions and investigations

The first recommendation is the one getting the most attention, and for good reason. Kavanaugh begins by recommending that while the president is in office, he should not be subject to civil lawsuits or to criminal investigation or prosecution. He explains that based on his first-hand experience in the White House, he has come to believe that “the job of the President is far more difficult than any other civil position in government.” And, he says, “I believe that it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” Having to respond to civil litigation, discovery requests, deposition demands, questioning by prosecutors or even sitting through a trial, Kavanaugh believes, imposes an intolerable diversion of attention and energy on any sitting president.

Kavanaugh acknowledges the irony in his saying that – after all, he began his career working for Independent Counsel Kenneth Starr, helping to impose those exact burdens on President Bill Clinton. But “in retrospect,” he writes, “that seems a mistake.” Looking back to those times, he says, “the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots.”

To be clear, Kavanaugh is not recommending that the president be completely immune from civil or criminal liability, only that the litigation be deferred until the president leaves office. If justice cannot be delayed that long, he writes, it should be up to Congress to step in and exercise its power of impeachment.

This recommendation has led some, including Caroline Fredrickson and Norman L. Eisen in the New York Times and John Nichols at The Nation, and Democrats in Congress, to conclude that Kavanaugh is in the bag for putting the kibosh on Special Counsel Robert Mueller’s investigation of Trump. Others, including Benjamin Wittes at Lawfare and Noah Feldman at Bloomberg, have argued that the article, in fact, shows that Kavanaugh would take the opposite position. I think the truth is somewhere in between.

As I mentioned earlier, it is simply wrong to treat the article as setting out Kavanaugh’s views on the constitutional limitations on investigations and prosecutions of sitting presidents. The recommendations are expressly directed at Congress. After laying out the case for the limitations, Kavanaugh says that with “that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents … be deferred while the President is in office.” And “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecution of the President.”

Some read these statements as implicitly acknowledging that a statutory fix is necessary because the Constitution itself does not impose the recommended limitations. Moreover, the article acknowledges that in Clinton v. Jones, the Supreme Court held that nothing in the Constitution imposes such blanket temporary immunity from civil suit. “The result the Supreme Court reached in Clinton v. Jones,” he writes, “may well have been entirely correct: that is beyond the scope of this inquiry.”

That statement, however, reads to me as a hedge. That the court “may well” have been correct suggests that the court may also have made a mistake. And going out of the way to say that the constitutional question is beyond the scope of the article suggests to me that Kavanaugh was being careful not to take a position on the constitutional question one way or the other.

And while we shouldn’t infer that just because Kavanaugh thinks Jones implements a bad policy means he would overrule the decision, he does not simply say that Jones is bad policy. In defending reliance on the impeachment process to police “bad-behaving or law breaking President[s],” Kavanaugh asserts that “[n]o single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.” That is the beginning of a structural constitutional argument, not just a legislative recommendation.

The fact that he suggests legislation also does not preclude him from believing that the Constitution independently protects sitting presidents. It could just as easily reflect his recognition that his constitutional view is inconsistent with current Supreme Court precedent and may not be shared by a majority of the current court.

In the end, this is all speculation. But I don’t think it is unreasonable to say that someone who has written such an article is more likely to find investigation and prosecution of a sitting president constitutionally problematic than someone who is less obviously disturbed by the prospect and less suspicious that it conflicts with our constitutional structure. And, as discussed below, we have seen other recommendations in this article translated into constitutional commands during Kavanaugh’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit.

Beyond its implications for the Mueller investigation, this discussion suggests that a Justice Kavanaugh would be sympathetic to other doctrines that tend to limit suits against sitting government officials in order to shield them from the distraction of litigation, so they can focus on their official duties. That is the function of doctrines like sovereign, absolute and qualified immunity; executive privilege; the act of state doctrine; and others. These doctrines are favored by conservatives generally, so I’m not going out on much of a limb to suggest that the article is consistent with Kavanaugh taking a traditionally conservative approach in this area (although, as others have noted, it would be a mistake to assume he would always vote in favor of the government defendant).

Limiting the administrative state, particularly independent agencies

Another set of recommendations is premised on a concern that the modern administrative state is too big, too inefficient and often, as a result, ineffective. Kavanaugh describes the “extraordinary duplication, overlap, and confusion among the missions of different agencies.” And he expresses grave concern about “the questionable effectiveness and accountability of some of the numerous independent regulatory agencies,” referring to agencies (like the Federal Elections Commission, the Federal Communications Commission and the Securities and Exchange Commission) run by individuals appointed by the president but only removable “for cause.” His recommendations: Streamline the bureaucracy to avoid duplication of missions and limit the number of independent agencies.

Again, these recommendations are cast largely as policy advice to Congress. But as with his position on presidential investigations, parts of his explanation suggest that when pressed, he might well find constitutional reasons to reach the same result with respect to independent agencies. Kavanaugh acknowledges that “[i]ndependent agencies are constitutional under Humphrey’s Executor v. the United States” before adding that “what is constitutional is not always wise.” His footnote providing a citation to the case is perhaps a little telling: In a parenthetical, he describes the court as “characterizing the Federal Trade Commission as a valid ‘administrative body,’” not as holding that independent commissions are constitutional. That in itself might not provide much insight into his willingness to reconsider Humphrey’s Executor, but his description of why independent agencies are bad policy has the ring of a constitutional argument. He says that their independence “has clear costs in terms of democratic accountability.” And they are “in considerable tension with our nation’s longstanding belief in accountability and the Framers’ understanding that one person would be responsible for the executive power.” To any good originalist, saying that a practice departs from the Framers’ understanding of how the government would be structured is pretty much tantamount to saying it is unconstitutional.

I’ll admit, I write all this knowing that in a subsequent decision (which will be discussed in another post), Kavanaugh went pretty far down the road to arguing that independent agencies are, in fact, unconstitutional, in the course of holding that the unusual structure of one (the Consumer Finance Protection Board) violated separation of powers. But given the reasons he gives for his policy recommendations in this article, that is not terribly surprising.

It’s worth noting that Kavanaugh’s position has some nuances. For example, he distinguishes between independent agencies exercising policymaking authority (for instance, by issuing regulations) and conducting adjudications (where independence may be more justifiable). And he holds out that “in some situations it may be worthwhile to insulate particular agencies from direct presidential oversight or control—the Federal Reserve Board may be one example, due to its power to directly affect the short-term functioning of the U.S. economy by setting interest rates and adjusting the money supply.”

But in general, he’s not a fan of either independent agencies or what he perceives as the sprawling administrative state. He may be open to simply overruling Humphrey’s Executor. He may be eager to at least expand the president’s authority to fire independent agency heads “for cause” – he notes, for example, that the “Supreme Court has made fairly clear (albeit not crystal clear) that the for-cause standard is hard to meet.”

The article may also suggest an openness to various doctrines and arguments designed to limit the federal bureaucracy and its power. It is not surprising, for example, that in another D.C. Circuit case (also to be discussed in a future post), Kavanaugh embraced a particularly muscular version of the so-called “major rules” doctrine, arguing that agencies should not be permitted to extend their regulations to important sectors of the economy (in the particular case, the broadband internet service) absent clear congressional authorization in a statute. And it may suggest an openness to the view of some of his potential future colleagues that the deferential review of agency interpretation of statutes under Chevron needs rethinking. The general views expressed in this article may also indicate an interest in aggressive enforcement of other constitutional requirements relating to agency accountability, such as the appointments clause.

War powers and national security

The final major topic of interest is Kavanaugh’s recommendations regarding the relationship between Congress, the president and the courts on matters of national security. Some of the recommendations are unremarkable — he thinks the president and Congress should recognize that both institutions have a role in authorizing major military action; he observes that they would do well to reach consensus on national-security matters rather than court conflict among the branches and with our enemies at the same time; and he suggests that when courts get involved to police the line between congressional and presidential authority on matters of war, courts’ rulings should be clear.

Of perhaps greatest interest is his discussion of the so-called “Youngstown” categories of presidential wartime powers. As a refresher, this refers to the framework created by Justice Robert Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, a case challenging President Harry Truman’s seizure of certain steel factories in the name of national security during the Korean War. Jackson explained that the president’s wartime powers are at their greatest when his actions are authorized by Congress. The second category involves actions neither forbidden nor authorized by the legislature. And the third category arises when Congress has forbidden an action, but the president asserts constitutional authority as commander in chief to engage in it anyway. In that context, Jackson said, the president’s power is at “its lowest ebb.”

In his article, Kavanaugh notes, but does not necessarily embrace, Jackson’s characterization of the president’s category-three authority. Instead, he states that the “scope of what a President can lawfully do in a Category Three situation is uncertain—and highly controversial with Congress and the public.” He explained further that there have been disputes over whether certain post-September 11 presidential actions fall within the third category or not. Those disputes turn in significant part on whether the “Authorization for the Use of Military Force, passed in the wake of September 11, overrides more specific earlier-enacted statutes such as the Non-Detention Act, 127 the Uniform Code of Military Justice, 128 and the Foreign Intelligence Surveillance Act.” If not, certain presidential actions that would otherwise violate the prior laws would fall into the third, most demanding Youngstown category.

Kavanaugh proposes that courts should avoid the question by requiring “express congressional prohibition before classifying the case as a Category Three situation.” The effect of this modest-sounding rule is to expand presidential power by limiting the circumstances in which it is viewed with particular suspicion by the courts.

A few other tidbits

Of less relevance to his potential role as a justice, but interesting nonetheless, the article also:

  • Proposes amendments to the Senate rules to ensure an up-or-down vote on judicial nominees within 180 days. Had that proposal been implemented at the time, the Kavanaugh nomination would be taking place in a very different context — Merrick Garland might have replaced Justice Antonin Scalia, cementing a 5-4 liberal majority Kavanaugh’s nomination would do nothing to change.
  • Addresses the questioning of judicial nominees: “[S]tructural considerations favor a more intensive inquiry by the Senate. Article III judges are appointed for life and—unlike executive branch officials— are not subordinate to their appointing presidents. That changes the constitutional dynamic. … The President deserves great deference in the selection of his own subordinates—who, after all, must follow the President’s lead and are accountable to the President who is responsible for their actions. By contrast, the independence and life tenure of federal judges justifies a more searching inquiry by the Senate.”
  • In a passage Trump may be less enthusiastic about, recommends that presidents be limited to a single, six-year term, to avoid the distractions of campaigning for re-election and what he views as the pattern of unsuccessful second terms by administrations worn out by the struggles of an eight-year reign.

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Kavanaugh and campaign finance: Republican National Committee v. Federal Election Commission

Kavanaugh and campaign finance: <em>Republican National Committee v. Federal Election Commission</em>Judge Brett Kavanaugh has many writings to peruse, both for majorities on the U.S. Court of Appeals for the District of Columbia Circuit and individually in concurrences and dissents, but he has addressed the issue of campaign finance infrequently. Kavanaugh’s views on that subject can best be inferred from an opinion he wrote shortly after […]

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Kavanaugh and campaign finance: <em>Republican National Committee v. Federal Election Commission</em>

Judge Brett Kavanaugh has many writings to peruse, both for majorities on the U.S. Court of Appeals for the District of Columbia Circuit and individually in concurrences and dissents, but he has addressed the issue of campaign finance infrequently. Kavanaugh’s views on that subject can best be inferred from an opinion he wrote shortly after the Supreme Court’s 2010 decision, written by Justice Anthony Kennedy, in Citizens United v. Federal Election Commission. In Citizens United, one of the Roberts court’s hallmark decisions, the court voted 5-4 to strike down bans on independent expenditures by corporations and labor unions for certain “electioneering communications” or for express advocacy for or against a candidate, while upholding certain disclaimer or disclosure requirements for those same entities. Three months later, in Republican National Committee v. FEC, Kavanaugh wrote for a three-judge panel consisting of himself and two district court judges under the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act). Although Kavanaugh’s opinion spoke for the entire panel, it offers some insights into his views on campaign finance.

Before delving into RNC, some basic details on the Supreme Court’s complex rulings on campaign finance are useful. Dating to 1976’s Buckley v. Valeo, the Supreme Court has held that monetary contributions to a political campaign, and expenditures either by the campaign or on behalf of the campaign, constitute speech protected by the First Amendment. Thus, in order to limit campaign contributions and expenditures, the federal government must point to a substantial governmental interest. The Supreme Court recognized one such interest in the government’s goal of combating “quid pro quo” corruption or the appearance of such corruption in politics — for example, providing campaign contributions or expenditures in exchange for a future political favor. Nonetheless, the Supreme Court has consistently afforded stronger First Amendment protection to expenditures by individuals or groups as compared to contributions to candidates or their political parties because of the court’s view that contributions raise a greater risk of quid-pro-quo corruption. Speaking broadly, the Supreme Court has tended to uphold statutory limits on annual contributions to candidates and political parties, while rejecting Congress’ attempt to limit expenditures by individuals, groups, candidates or political parties.

RNC involves one subset of this complex matrix of statutes and regulations governing the use of money in political campaigns — contributions to political parties. In the terminology frequently adopted by the courts, campaign contributions made directly to a candidate in support of their election are referred to as “hard money,” while contributions to organizations for general election activities are termed “soft money.” Before the BCRA was enacted, these soft-money contributions to political campaigns — used to fund issue ads, purely state and local campaigns, and get-out-the-vote activities in years when state/local and federal candidates were on the ballot — were unrestricted. Because some of these expenditures could have an indirect effect on federal elections, Congress enacted the BCRA to cure a potential loophole that would allow contributions to a political party but bypass the per-individual hard-money restrictions. The BCRA imposed annual restrictions on the amount a national political party could receive from an individual donor regardless of how the party sought to use the money. It also limited how state and local political parties used contributions in certain circumstances that could have an impact on a federal election, such as certain get-out-the-vote or issue-advocacy campaigns.

The Supreme Court in 2003 upheld the BCRA’s limitations against a facial attack — a claim that a statute is unconstitutional in all of its possible applications — in McConnell v. FEC. The Supreme Court relied on data showing the close connection between political parties and their candidates and indicating that the appearance of quid-pro-quo corruption within the political party could also apply to candidates, and on evidence that national parties had been selling access to federal officeholders and candidates. In RNC, the Republican National Committee, as well as the California Republican Party and local Republican parties, brought an as-applied challenge — a claim that a statute is unconstitutional in one particular application — to these same limits. The political parties alleged that they sought to raise unlimited soft money only for state and local activities that would have little to no connection to federal elections. In other words, the parties promised not to provide any benefits to soft-money donors beyond the benefits afforded to hard-money donors who contributed the maximum allowed by statute.

The three-judge panel upheld the restrictions even in light of these promises by the political parties. It held that, although styled as an as-applied challenge, many of the RNC’s arguments had already been addressed and rejected in McConnell. Nonetheless, the panel agreed with the RNC that Citizens United undercut any theory that large contributions to political parties could be corrupting simply because those contributions facilitate access to or create gratitude from the candidates, because facilitated access and gratitude alone do not rise to the level of quid-pro-quo corruption. The panel then addressed the evidence in McConnell that the parties had been explicitly selling access to candidates. The panel expressed skepticism that any corruption theory based on evidence of sold access still applied in light of the RNC’s promises, which “carrie[d] considerable logic and force.” The panel, however, relied on another justification expressed in McConnell, the “close relationship between federal officeholders and the national parties,” as evidence of the possible appearance of corruption. Under this theory, federal candidates and officeholders may place particular emphasis on contributions to a political party because of the candidates’ and officeholders’ close relationship to their parties, thus creating the same potential for quid-pro-quo corruption as if the money had been given directly to the candidate.

The panel expressed its displeasure with the close-connection theory, stating that the RNC could not overcome this justification for the contribution limits “at least at the District Court level.” It called the McConnell opinion “ambiguous on the question whether the ‘unity of interest’ between national parties and their candidates and officeholders was an independently sufficient rationale for the Court to uphold the blanket ban on soft-money contributions to national parties.” It even noted expressly that “the Supreme Court will have the opportunity to clarify or refine this aspect of McConnell as the Court sees fit.” Regardless, the panel agreed that it was bound by McConnell in light of Citizens United and upheld the restrictions against the as-applied challenge. In a footnote, the panel explained that the “current mix of statutes, regulations, and court decisions” leaves political parties in a worse position than outside groups in terms of raising money. Characterizing its suggestion as “an argument for the Supreme Court or Congress,” the panel proposed that this “disparity” could be fixed by removing the “limit [on] contributions to political parties.”

Although RNC kept in place soft-money restrictions on political parties, Kavanaugh’s opinion showed hostility towards the Supreme Court’s views in McConnell. It questioned the theory that these limits could be justified simply by the close connection between political parties and candidates or officeholders, and more than once explained that its hands were tied by the Supreme Court. And its analysis included a call for Supreme Court reassessment of these restrictions. Although the majority of the Supreme Court chose not to return to this issue on direct appeal, Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas voted to hear oral argument.

Because Kavanaugh was writing for the three-judge panel, it is hard to predict how he would resolve future campaign-finance questions as a justice solely on the basis of RNC. A year before RNC, Kavanaugh wrote another opinion addressing campaign contributions for a panel of the D.C. Circuit, in Emily’s List v. FEC. Emily’s List involved a challenge to FEC regulations that limited how nonprofit organizations could spend and solicit money toward advancing their organizations’ goals. The court concluded that nonprofits could make unlimited expenditures from their soft-money accounts, but that direct contributions from an organization to campaigns or political parties could be restricted to hard-money contributions only. Importantly, it distinguished the limits upheld by McConnell on political parties as unique to those entities and not applicable to nonprofit organizations because there was no evidence in the record that nonprofits have sold access to federal candidates or that a close connection between candidates and nonprofits exists. Because the FEC’s regulations were inconsistent with these principles, the court struck down all five challenged regulations. Judge Janice Rodgers Brown wrote separately, believing that the court did not need to reach the constitutional issues because the regulations exceeding the FEC’s statutory authority.

Again, there is not much that can be gleaned from Kavanaugh’s opinion for the majority in Emily’s List. As in RNC, Kavanaugh appears to have a preference for fewer restrictions on campaign financing, but nothing in Emily’s List goes as far as his request for the Supreme Court to review its own precedent in RNC. In 2011, Kavanaugh wrote another opinion for a three-judge district-court panel in Bluman v. FEC, which upheld provisions of the BCRA that banned certain contributions and expenditures by foreign citizens in U.S. elections. In reaching this conclusion, however, the panel narrowly interpreted these sections of the BCRA to apply only to direct contributions and express-advocacy expenditures, but not to pure issue advocacy. In 2016, Kavanaugh also wrote a short opinion for the D.C. Circuit in Independence Institute v. FEC, finding an as-applied constitutional challenge to campaign disclosure rules for certain nonprofit organizations sufficient to justify review by a three-judge panel because the challenge was not “wholly insubstantial.” But that opinion provides little insight into Kavanaugh’s views on the merits of the challenge. Finally, Kavanaugh has signed on to various panel and en banc decisions both upholding and striking down campaign-finance or campaign-speech restrictions and regulations: Pursuing America’s Greatness v. FEC (2016) (finding that plaintiffs had a substantial likelihood of success on the merits in challenge to FEC limits on use of candidate names by unauthorized political committees); Wagner v. FEC (2015) (en banc) (upholding restrictions on contributions by government contractors); and SpeechNow.org v. FEC (2010) (en banc) (striking down individual contribution limits to independent expenditure-only groups but upholding reporting requirements on such organizations).

Because these are majority opinions and not separate concurrences or dissents, we do not know Kavanaugh’s own views on these matters. To the extent we can learn anything about Kavanaugh’s views on campaign finance, they seem to be consistent with the Supreme Court’s recent jurisprudence trimming back any attempt by Congress or the FEC to restrict campaign contributions or expenditures. In a 5-4 section of 2008’s Davis v. FEC, the Supreme Court found unconstitutional certain sections of the BCRA that allowed an opposition candidate to receive more in individual contributions when his opponent planned to self-finance his campaign above a certain threshold. In Citizens United, the court, in a 5-4 opinion, struck down those portions of the BCRA that prohibited independent expenditures by corporations and labor unions. And, in 2014’s McCutcheon v. FEC, again by a 5-4 vote, the court invalidated aggregate contribution limits — the amounts one could spend “in toto” in campaign contributions over a two-year period — while again upholding limits on contributions by an individual to a specific campaign or party.

Although his opinions on campaign-finance issues are scant and predictions are always a treacherous business, Kavanaugh would appear to align with the other conservative justices in voting to remove restrictions on campaign financing.  This is consistent with how advocates from across the political spectrum have predicted Kavanaugh’s campaign-finance approach would play out on the Supreme Court.  Writing for The Volokh Conspiracy, Jonathan Adler notes that Kavanaugh “has adopted a very speech protective record on the D.C. Circuit, including in areas that were of particular importance to Justice Kennedy, such as campaign-related speech.”  The Institute of Free Speech, in a statement supporting Kavanaugh’s nomination, explains that “Kavanaugh has frequently demonstrated a healthy skepticism when the state asserts a need to infringe on First Amendment rights,” and offers an extensive analysis of Kavanaugh’s record in campaign-finance cases.  On the other side, Lee Fang, in The Intercept, reviews Kavanaugh’s jurisprudence and concludes that Kavanaugh has “wielded the First Amendment as a cudgel to unravel decades of laws designed to ensure that ordinary Americans are not squeezed out of the electoral process by organized economic power.” And Ian Vandewalker for the Brennan Center for Justice raises concerns that Kavanaugh’s opinion in Bluman indicates that Kavanaugh would vote to remove restrictions on foreign influence over American elections. Because Justice Anthony Kennedy sided with the conservatives in the Supreme Court’s most recent campaign-finance opinions, though, it seems unlikely that a Justice Kavanaugh would shift the court’s approach in this important area of the law.

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Introduction: A close look at Judge Brett Kavanaugh

Introduction: A close look at Judge Brett KavanaughWhen President Donald Trump nominated him to succeed the retiring Justice Anthony Kennedy, Judge Brett Kavanaugh spoke movingly about the women in his life, beginning with his mother, a history teacher who became a prosecutor and later a state-court judge. He talked about his two school-aged daughters, whose basketball teams he coaches, and with whom […]

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Introduction: A close look at Judge Brett Kavanaugh

When President Donald Trump nominated him to succeed the retiring Justice Anthony Kennedy, Judge Brett Kavanaugh spoke movingly about the women in his life, beginning with his mother, a history teacher who became a prosecutor and later a state-court judge. He talked about his two school-aged daughters, whose basketball teams he coaches, and with whom he attended the NCAA women’s Final Four this year, and he praised his wife, Ashley, as not only a “great wife and inspiring mom” but also a “source of strength” for President George W. Bush, for whom she served as personal secretary, and others in the White House in the weeks after September 11 attacks. And he added that he was “proud that a majority of my law clerks have been women.”

The 53-year-old Kavanaugh also emphasized his ability to get along with others who do not necessarily share his views, noting that his “law clerks come from diverse backgrounds and points of view” and that he had been hired to teach at Harvard Law School by Elena Kagan, who was then the dean of the law school but was later appointed by President Barack Obama to serve on the Supreme Court. And he discussed the “vibrant Catholic community in the D.C. area,” stressing that even if the “members of that community disagree about many things,” they are “united by a commitment to serve.”

Almost immediately after Kavanaugh’s nomination, nearly three dozen of his former law clerks (all of those, the clerks wrote, who are “not prohibited by their current or pending employment from signing”) sent a letter to the Senate Judiciary Committee in which they praised his intellectual rigor but also described him as “unfailingly warm and gracious with his colleagues no matter how strongly they disagree about a case.” Kavanaugh, they concluded, is someone who “makes it to every wedding, answers every career question, and gives unflinching honest advice.”

At the same time, Kavanaugh’s nomination was met with resistance from Democrats and liberal interest groups, who characterized him as an “extreme” nominee. One example came from the National Women’s Law Center, which argued that, if confirmed, Kavanaugh would “launch relentless attacks” on women’s reproductive rights; the Human Rights Campaign alleged that Kavanaugh would undermine the Affordable Care Act, the environment and equality for the LGBTQ community. Senator Chuck Schumer, a Democrat from New York, also criticized Kavanaugh’s views on presidential power, calling them “off the deep end.”

Although Kavanaugh was not a household name before his nomination, he was already well known in the D.C. legal and political communities. Kavanaugh has lived almost all of his life in the Washington area. After graduating from Georgetown Preparatory School, a Catholic boys’ school just outside the Beltway whose alumni include a current justice, Neil Gorsuch, Kavanaugh left for college and law school at Yale, followed by clerkships on federal courts of appeals in Delaware and California. Kavanaugh then returned to the Washington area for good, first to take a fellowship in the office of the U.S. solicitor general and then to clerk at the Supreme Court for Kennedy.

After clerking at the Supreme Court, many young lawyers head for large corporate law firms (collecting lucrative bonuses along the way) or academia. But Kavanaugh did neither. Instead, he joined independent counsel Kenneth Starr’s investigation of the Clinton administration, including the suicide of White House counsel Vince Foster, the Clintons’ real estate investments and allegations of perjury in connection with President Bill Clinton’s statements about his relationship with Monica Lewinsky. Kavanaugh would spend three years working for Starr, eventually leaving to become a partner in the D.C. office of Kirkland & Ellis. In 1998, Kavanaugh published an article in The Georgetown Law Journal on the presidency and the independent counsel that has drawn renewed attention since his nomination for what it might mean if legal disputes arising from Robert Mueller’s investigation into potential Russian interference with the 2016 presidential election were to make their way to the Supreme Court. Among other things, Kavanaugh deemed it “debatable” whether the Constitution would allow the president to be indicted, but he urged Congress to make clear that a sitting president cannot be indicted; any indictment, Kavanaugh specified, should come only after the president “leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate.” Doing so, he suggested, would speed up any investigations into a sitting president and “would ensure that the ultimate judgment on the President’s conduct (inevitably wrapped up in its political effects) is made where all great national political judgments ultimately must be made”: Congress.

Eleven years later, Kavanaugh would publish another article with similar themes, this time in the Minnesota Law Review. Noting that he had “seen first-hand how complex and difficult” the job of president is, he argued that civil lawsuits against the president in his personal capacity should be postponed until he leaves office and urged Congress to “consider doing the same” for criminal investigations and prosecutions of the president. The best-case scenario for a criminal investigation of the president, he observed, would be that it would distract the president from more pressing duties. But if the president were indicted and stood trial, he continued, it could “cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.” Kavanaugh stressed that he “strongly” agreed with the idea that no one, including the president, should be above the law: “The point,” he explained, is “simply to defer litigation and investigations until the President is out of office.” Moreover, he added, “the Constitution establishes a clear mechanism to deter executive malfeasance” – the impeachment process.

Kavanaugh’s initial stint at Kirkland ended in 1998, when he returned to the office of the independent counsel. He made his first and only appearance as an advocate before the Supreme Court that year, arguing on behalf of the office in its unsuccessful efforts to obtain notes taken by James Hamilton, a lawyer at the firm of Swidler & Berlin, in a meeting with Foster a few days before Foster committed suicide. Later that year, Kavanaugh was one of the lead drafters of the Starr Report, which chronicled the details of Bill Clinton’s affair with Lewinsky; in particular, he was responsible for drafting the section outlining possible grounds for impeachment of the president.

In 1999, Kavanaugh returned to Kirkland, where he focused primarily on appeals. His portfolio included a variety of high-profile cases, including his representation of the Miami relatives of Elian Gonzalez, the then-five-year-old Cuban boy who was found floating on an inner tube off the Florida coast after his mother and 10 others died at sea. Gonzalez was eventually returned to his father in Cuba, over the relatives’ objection. Kavanaugh also served on the legal team for then-Governor George W. Bush in the battle over the Florida recount in the 2000 presidential election.

Kavanaugh joined Bush in the White House in 2001, first in the counsel’s office and then as staff secretary, a job that has been described as an “important gatekeeper to the Oval Office, ensuring that executive orders, decision memos, bills, nominations and other actions are fully vetted before they reach the president.” In 2003, Bush nominated Kavanaugh to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit, a court that has served as a frequent stepping stone for other Supreme Court justices. That nomination stalled, but Bush renominated Kavanaugh in 2006, and he was confirmed by a vote of 57-36. Kennedy swore Kavanaugh in during a ceremony in the Rose Garden in which Bush quipped that Kavanaugh’s position on the court of appeals was the second lifetime appointment that Bush had arranged for him – the first being Kavanaugh’s marriage to Ashley.

During his 12 years on the court of appeals, Kavanaugh has weighed in on a wide range of issues that are likely to surface during his upcoming confirmation hearings, the date for which has not yet been set.  One case that has already received significant attention, and will continue to do so in light of Kennedy’s pivotal role in abortion-rights cases and Trump’s promise to appoint justices who will overrule Roe v. Wade is Garza v. Hargan, the case of an undocumented teenager in immigration custody who wanted to obtain an abortion. A federal judge in Washington, D.C., ordered the government to allow the teenager to get an abortion, but the government appealed to the D.C. Circuit.

A three-judge panel, which included Kavanaugh, initially blocked the district court’s ruling: The appeals court gave the government 11 days to find a sponsor for the girl, agreeing with the government’s contention that requiring a minor to be released to a sponsor does not place an “undue burden” (the standard under which laws and regulations restricting abortion are reviewed) on the minor’s right to an abortion “as long as the process of securing a sponsor to whom the minor is released occurs expeditiously.”

The teenager appealed to the full D.C. Circuit, which reversed the panel and cleared the way for the teenager to obtain an abortion, which she did the next day. Kavanaugh dissented from that decision, writing that the majority’s decision “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” Kavanaugh did not, however, join a dissent that indicated that the teenager did not have a right to an abortion because she was not a U.S. citizen – a right that the government had conceded in this case.

In 2008, in Heller v. District of Columbia, the Supreme Court ruled that the Seconnd Amendment protects an individual’s right to have a handgun in the home for self-defense. Kennedy was in the majority in that decision, but since the Heller decision and a later one making clear that the Second Amendment also applies to the states, the Supreme Court has declined to wade into the thorny topic of gun rights. Kavanaugh’s vote in a 2011 follow-up to Heller suggests that he might be willing to go further than the Supreme Court has so far: Kavanaugh dissented from a decision that upheld a D.C. law, passed in the wake of Heller, banning assault weapons. Kavanaugh indicated that he would strike down the law. He acknowledged that machine guns could be banned, but he reasoned that most handguns are semi-automatic, which means that there is virtually no difference between those weapons and the semi-automatic rifles prohibited by the law.

Kavanaugh’s vote in a challenge to the Affordable Care Act’s individual mandate, which required almost all Americans to purchase health insurance or pay a fine, has drawn fire from both sides of the ideological spectrum – from the left for failing to support the ACA, and from the right for failing to strike it down. The D.C. Circuit rejected the challenge, but Kavanaugh dissented from that ruling. He would have ruled that the court did not have the power to review the case because a federal law – the Anti-Injunction Act – limits courts’ jurisdiction over tax challenges, generally barring such lawsuits until the IRS has actually enforced the tax against the challenger. The Supreme Court would later rule that the act did not apply to suits challenging the mandate, even though Chief Justice John Roberts joined the court’s four more liberal justices in holding that the mandate passed constitutional muster because it was a tax.

Kavanaugh’s views on the separation of powers have also been the subject of scrutiny. Earlier this year, the full D.C. Circuit rejected a challenge to the structure of the Consumer Financial Protection Bureau, an independent agency created in the wake of the 2008 financial crisis to combat fraud in loans, mortgages, personal credit card and banking. The law creating the CFPB gave the director of the bureau a five-year term of office and provided that she could be removed only by the president and only for cause. Kavanaugh dissented from the court’s decision, agreeing with the mortgage lender challenging the law that the structure violates Article II of the Constitution, which gives executive power to the president and charges him with ensuring that federal laws are “faithfully executed.” Kavanaugh emphasized that the CFPB’s “concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty” than an independent agency headed by a multi-member board.

Kavanaugh is also likely to face questions about the views he laid out in last year’s dissent from the denial of rehearing by the full court in a challenge to the Federal Communications Commission’s “net neutrality” rule, which was repealed earlier this year but would have required internet service providers to offer equal access to all content and websites. In Kavanaugh’s view, the rule was invalid because it would have a substantial economic and political effect, but Congress had not clearly authorized it. And in any event, Kavanaugh continued, the rule also violated the First Amendment because it restricted “the editorial discretion of Internet service providers.”

The First Amendment was at the heart of a 2010 case in which Kavanaugh wrote for a three-judge district court upholding federal limits on contributions to political parties, known as “soft-money bans.” The ruling relied heavily on a 2003 Supreme Court decision rejecting a First Amendment challenge to the soft-money bans, explaining that as “a lower court, we do not possess the authority to clarify or refine” the Supreme Court’s holding “in the manner suggested by” the challengers. As a Supreme Court justice, of course, Kavanaugh would have more latitude to revisit the justices’ earlier decisions.

Over the next few weeks, the blog will take a closer look at all of these cases, along with topics such as Kavanaugh’s broader approach to actions by administrative agencies, environmental law, religious liberty and the Fourth Amendment. By the time we are done, we hope to provide a better sense of how Kavanaugh might rule on these issues in the future and how, if confirmed to replace Kennedy, he might change the court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel for the intervenors in United States Telecom Association and on an amicus brief in support of the respondents in PHH Corp. The author of this post is not affiliated with the firm.]

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearingsOn the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that […]

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

On the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that may come before them if they are confirmed. At his confirmation hearing, then-Judge Neil Gorsuch cited that rule numerous times as grounds for refusing to answer questions about his views on particular legal issues. After comparing Gorsuch’s responses to those of nominees between 1939 and 2010, including Ruth Bader Ginsburg, Collins and Ringhand found that Gorsuch was the least responsive nominee in decades, and they are worried he is setting a trend.

Neil Gorsuch’s confirmation hearing (Art Lien)

Collins and Ringhand explain that the practice of refusing to respond to certain questions is misattributed to Ginsburg, and in any case tells only half the story. After analyzing a database of confirmation-hearing questions and answers from every hearing between 1939 and 2010, they found that nominees long predating Ginsburg refused to answer questions regarding cases that might come before them. But these same nominees, including Ginsburg, were willing to respond to questions about their support for longstanding precedent that had become a part of the constitutional canon. The authors conclude that the “Ginsburg Rule” is really two rules: First, nominees have consistently refused to answer questions about unresolved legal questions likely to come before the Supreme Court to avoid the appearance of bias and preserve judicial independence; and second, aside from Gorsuch, nominees in the modern era have consistently been willing to confirm their support for well-established Supreme Court precedent.

Nominees’ refusal to answer certain types of questions is as old as the confirmation process itself. In 1939, Justice Felix Frankfurter was the first to undergo public confirmation hearings at which he answered questions under oath. He was also the first to refuse to answer some questions on the grounds that it would be improper to do so. At almost every confirmation hearing since, the nominee has asserted what Collins and Ringhand refer to as a “privilege” to refuse to respond to some questions.

Nominees assert that privilege for two reasons: First, to avoid any appearance of having prejudged an issue that could come before the court; and second, to protect judicial independence by refusing to make promises or commitments to senators on the Judiciary Committee in exchange for confirmation.

Collins and Ringhand agree these concerns are valid, but they argue that another value is at stake in Supreme Court confirmation hearings that cuts in favor of responsiveness, at least to some types of questions. Such hearings provide an opportunity for the senators, and by extension those they represent, to determine whether the nominee deserves a spot on the Supreme Court. The Senate can only serve that role if the nominees answer questions regarding the precedents and doctrines they support.

The authors have studied the confirmation hearings stretching back to Frankfurter’s in 1939 to measure the frequency with which would-be justices refused to answer questions compared to their willingness to give firm views regarding established case law. They analyzed data from the U.S. Supreme Court Confirmation Hearing Database, which contains information about every question and answer at every confirmation hearing from 1939 through 2010, to determine what they label a nominee’s “responsiveness ratio.” (They also incorporated into that dataset information from Gorsuch’s hearing.) The responsiveness ratio is the number of questions a nominee refused to answer on the basis of the so-called Ginsburg Rule compared to the number of questions about doctrine and precedent that the nominee answered. They then ranked all the nominees on this metric to see which ones responded significantly more often than not. They also broke down the areas and issues on which Ginsburg and Gorsuch, respectively, were responsive and on which issues they held back.

Using these metrics, Collins and Ringhand found that Ginsburg refused to respond approximately 10 percent of time — a higher rate than some recent nominees (such as John Roberts, at 6.6 percent), though lower than others (such as William Rehnquist, at 12.2 percent). But she gave firm responses 15.44 percent of the time, putting her at a healthy responsiveness ratio of +5.08. In contrast, Gorsuch asserted the privilege 6.6 percent of the time, but very rarely gave firm answers to any question about doctrine or precedent, including direct questions about the validity of cases such as Brown v. Board of Education and even Marbury v. Madison (though later in his hearing he agreed that case was correctly decided). His response rate was only 0.75 percent, leading his responsiveness ratio to be -5.91, far below the norm set over the last few decades.

Collins and Ringhand are disturbed by Gorsuch’s refusal to affirm even longstanding and well accepted Supreme Court precedent. They fear that if nominees stop taking any positions on previous Supreme Court precedent — even those concerning uncontroversial issues unlikely to come back before the court — the confirmation hearings will lose their value. The nation will also lose an opportunity to determine which previously disputed Supreme Court precedents have become an accepted part of the constitutional canon, and which are still up for debate.

In conclusion, they argue that the future nominee should follow what they call the “Ginsburg Rules,” with an emphasis on the plural. That is, the nominee can and should assert a privilege not to respond to questions about cases or issues that remain controversial, but should also take care to give clear answers to questions about cases that are now accepted as part of the constitutional canon.

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Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knows

Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knowsThe discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement […]

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Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knows

The discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement rumors previously circulated, many on the left were fearful of how this would shift the court in the conservative direction (and many still are). Then, as Kennedy failed to join the court’s liberal justices  in any 5-4 decisions this past term, some became skeptical of whether Kennedy was as moderate as he was often portrayed. Over the years, Kennedy did side with the court’s more liberal justices in important rulings and was often the swing vote for this coalition when there was one. If Kavanaugh is confirmed, he is unlikely to play a similar role. The question is rather how far to the right Kavanaugh will push the court.

Measures over time

The recent rhetoric about how Kennedy did not side with the court’s liberals might be overwrought. Although Kennedy was certainly a solid conservative vote in many cases, he was not shy about voting against the court’s conservative bloc, even this past term. Since the 2000 term, if we take this bloc to be composed of Chief Justices William Rehnquist and John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Neil Gorsuch, Kennedy sided against at least three of these justices in the following number of decisions per term.

Click graph to enlarge.

The decisions with such a voting composition from the 2017 term include Tharpe v. Sellers, McCoy v. Louisiana, Wilson v. Sellers, Hughes v. United States, Chavez-Meza v. United States and Florida v. Georgia.

Another way of looking at where Kennedy fell on the ideological spectrum over time is through the lens of the justices with whom he voted most frequently. The Martin-Quinn Scores are based on data collected with this in mind. The following figure looks at the distance between Kennedy’s scores and those for the other justices over time. Larger numbers equate to larger differences between Kennedy and respective justices and vice-versa.

Click graph to enlarge.

Although Kennedy is often located far away from several of the more liberal justices, Thomas was the justice furthest from Kennedy for the majority of terms since 2000.

Conservative disagreement

Kennedy often but not always sided with the more conservative over the more liberal justices. He also was most often the majority opinion author in cases since 2000 in which he took a position opposed to that of at least three conservative justices.

Click graph to enlarge.

Although Kennedy frequently assigned the opinions in such instances, the associate justice who most often performed that function was Justice John Paul Stevens.

Click graph to enlarge.

Kennedy did not oppose all of the conservative justices equally in these instances. He was least frequently opposed to Roberts’ position, while he was never on the same side as Rehnquist.

Click graph to enlarge.

To be fair, the sample size for Gorsuch is smallest, so we don’t really know where the pendulum would have swung with him. Aside from those justices, in such cases Kennedy was closer to Alito than he was to either Scalia or Thomas. These data give a preliminary sense that Kennedy was a more nuanced justice than a traditional liberal or conservative even in his final year on the court. The next step is identifying whether these decisions cluster into certain case types.

Cases to distinguish Kennedy and Kavanaugh

One of the most interesting questions for court-watchers is predicting, assuming that Kavanaugh is more conservative than Kennedy, how Kavanaugh’s views will diverge from those of Kennedy. To work toward an answer for this, we can first look to when Kennedy voted in opposition to the court’s more conservative justices. The data for these decisions, like those above, are from cases since the 2000 term in which Kennedy was on the opposing side to that of at least three of the more conservative justices. The figure looks at which issues, as coded in the Supreme Court Database, dominated these decisions (based on issues that appeared in at least two such decisions).

Click graph to enlarge.

This is a fairly normal list of cases that tracks well with the types of cases the court generally hears. Many of the leading issues involve criminal justice or due process concerns. The Fifth, Eighth, and/or 14th amendments are also central to many of these decisions.

These issues suggest that there are many cases in which Kennedy disagreed with several if not all of the court’s more conservative justices. Kavanaugh would have also likely been on the opposite side of Kennedy in many such decisions if the opportunity had presented itself. I’ll break down some potential differences between Kennedy and Kavanaugh on the issues that appear most frequently in the figure above.

One of Kennedy’s most notable majority opinions dealing with writs of habeas corpus was the Guantanamo detainee case of Boumediene v. Bush. In that case Kennedy wrote that the process afforded certain detainees was insufficient to meet the constitutional threshold. Kennedy wrote:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

Although not directly involved in the Boumediene case, Kavanaugh heard and helped decide several other cases that examined the procedures provided to Guantanamo detainees. In these cases, he tended to side with the government. In Al-Bihani v. Obama, for instance, Kavanaugh voted with a panel that upheld the president’s power in this area. In that decision, Judge Janice Brown wrote:

In light of these provisions of the 2006 and 2009 MCAs, the facts that were both found by the district court and offered by Al-Bihani in his traverse place Al-Bihani within the “part of” and “support” prongs of the relevant statutory definition. The district court found Al Qaeda members participated in the command structure of the 55th Arab Brigade, making the brigade an Al Qaeda-affiliated outfit, and it is unquestioned that the 55th fought alongside the Taliban while the Taliban was harboring Al Qaeda. Al-Bihani’s evidence confirmed these points, establishing that the 55th “supported the Taliban against the Northern Alliance,” a Coalition partner, and that the 55th was “aided, or even, at times, commanded, by al-Qaeda members.” Al-Bihani’s connections with the 55th therefore render him detainable. His acknowledged actions accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders strongly suggest, in the absence of an official membership card, that he was part of the 55th. Even assuming, as he argues, that he was a civilian “contractor” rendering services, those services render Al-Bihani detainable under the “purposefully and materially supported” language of both versions of the MCA. That language constitutes a standard whose outer bounds are not readily identifiable. But wherever the outer bounds may lie, they clearly include traditional food operations essential to a fighting force and the carrying of arms. Viewed in full, the facts show Al-Bihani was part of and supported a group prior to and after September 11 that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers.

The distinctions between Kennedy’s and Kavanaugh’s positions in this and other cases do not necessarily mean that they would vote on opposite sides of the same case. The facts are different in the cases, the court of appeals is constrained by precedent in a different way than the Supreme Court, and the legal parameters changed in the time between the two decisions. That said, the differences suggest possibly disparate outlooks.

Although the area in which Kennedy voted in opposition to the court’s more conservative justices most was habeas corpus, the differences were evident in several other areas as well. Kennedy was not a consistent vote against the death penalty like Justices Stephen Breyer and Sonia Sotomayor, but he sided with the more liberal justices’ positions in several such cases. One example is in Hall v. Florida. In that case he wrote that Florida’s death penalty practice did not pass constitutional muster:

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

Although it is hard to generalize from a small set of cases, it is still notable that in Kavanaugh’s separate opinion in Roth v. Department of Justice he wrote the following in opposition to a new death penalty exception:

In the end, the majority opinion distinguishes away a slew of applicable precedents by decreeing a new death penalty exception that overrides Exemption 7(C)’s protection of personal privacy. The result in this FOIA case, by the majority opinion’s own admission, would be different if Bower were serving a sentence of life imprisonment. Of course, the information sought here goes to Bower’s guilt, not to his sentence. The majority opinion’s reasoning, which rests on Bower’s death sentence, is thus an odd fit with the nature of the information sought. Beyond that, the major problem with the majority opinion’s approach is that there is no statutory or precedential support for creating a new death penalty exception to the important privacy protection in Exemption 7(C). Creating any such exception is a decision properly left to Congress and the Executive Branch. In justifying its new death penalty exception, the majority opinion lobs a rhetorical volley, saying that the opposing position would allow the government to deliberately and knowingly kill an innocent man. That is wildly inaccurate. The traditional processes such as habeas, clemency, and the like are constitutionally and statutorily designed to prevent such a travesty of justice. As the Supreme Court said, “the framers of the FOIA” did not have in mind “disclosure of records regarding private citizens, identifiable by name.” Moreover, if federal government officials are violating their legal and ethical disclosure responsibilities in the criminal justice and clemency forums, it is unclear why the majority opinion thinks those same officials would suddenly comply with FOIA orders.

The Supreme Court and D.C. Circuit death penalty cases deal with different facets of the issue. Still, in these opinions we can see Kennedy’s reluctance to take a broad view of when the death penalty is appropriate, while Kavanaugh is not entirely skeptical of the practice.

Kennedy’s and Kavanaugh’s views on criminal sentencing statutes are not totally similar either. In Freeman v. United States, Kennedy describes the need for flexible approach to federal sentencing guidelines:

The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.

The crack-cocaine range here is a prime example of an unwarranted disparity that Section 3582(c)(2) is designed to cure. The commission amended the crack-cocaine guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the commission concluded, “significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.”

By contrast, Kavanaugh takes a more deferential approach in his dissent in In Re Sealed Case:

In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range. To be sure, the Supreme Court’s remedial opinion in Booker was open to multiple readings and could have been interpreted to preserve this kind of Guidelines-centric appellate review. But the Court’s recent decisions in Rita, Kimbrough, and Gall, as I read them, do not permit such an approach; appellate review is for abuse of discretion and is limited to assessing only whether certain procedural requirements were met and whether the sentence is substantively “reasonable.” Recognizing that the governing Supreme Court decisions are not entirely unambiguous, and despite my serious concerns about the sentencing disparities that could well ensue as a result of the current case law, I think our appellate role in the Booker-Rita-Kimbrough-Gall sentencing world is more limited than the majority opinion suggests.

The judge and justice also did not see eye to eye in the area of Fourth Amendment search and seizures. These cases are heavily fact based, however, and so it is difficult to fully distinguish the approaches of the two judges. That said, Kennedy sided with the liberals in several instances holding that searches were unreasonable. This was the case in Ferguson v. Charleston, in which the court in an opinion by Kennedy concurred that certain bodily searches of pregnant mothers were unconstitutional:

I agree with the Court that the search policy cannot be sustained. As the majority demonstrates and well explains, there was substantial law enforcement involvement in the policy from its inception. None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives. The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions, as an integral part of a program which seeks to achieve legitimate, civil objectives. The traditional warrant and probable-cause requirements are waived in our previous cases on the explicit assumption that the evidence obtained in the search is not intended to be used for law enforcement purposes. Most of those tested for drug use under the policy at issue here were not brought into direct contact with law enforcement.”

Kavanaugh has held searches allowable in several instances when they were questioned. Even though cases in this area are not wholly comparable, this suggests that Kennedy and Kavanaugh might have been on opposite sides if they had been on the court at the same time and such a case arose. In United States v. Spencer, for example, Kavanaugh upheld a challenged search as reasonable:

It is true that when officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate for example, if the police learn that “contraband is no longer located at the place to be searched.” But the dismissal here is not such a “fact.” Rather, it was a legal conclusion reached by a different judge in a different matter; such legal disagreement is hardly surprising given that reasonable minds “frequently may differ on the question” of probable cause. Assuming it were a fact, it was not material because it would not negate probable cause. In addition, as Spencer’s counsel correctly acknowledged at oral argument, the dismissal of the D.C. charge against Spencer would not carry estoppel effect in a separate search-warrant proceeding.

Kennedy and Kavanaugh have expressed different views outside the criminal context. Kennedy, for instance, has agreed that federal laws should not necessarily pre-empt state laws. He did not always take this view, though, because he wrote the majority opinion in Arizona v. United States, in which the court held that Arizona’s policy for identifying illegal immigrants conflicted with the federal approach. In Wyeth v. Levine though, Kennedy signed on to Stevens’ decision favoring the state law at issue.

In Saleh v. Titan, Kavanaugh signed onto Judge Laurence Silberman’s opinion, which held in part:

Nevertheless, the court acknowledged that a significant conflict must exist for state law to be preempted. In Boyle, the court observed that the contractor could not satisfy both the government’s procurement design and the state’s prescribed duty of care. It looked to the FTCA’s exemption to the waiver of sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused,” to find a statutory provision that articulated the “outlines” of the significant conflict between federal interests and state law. Since the selection of the appropriate design of military equipment was obviously a governmental discretionary function and a lawsuit against a contractor that conformed to that design would impose the same costs on the government indirectly that the governmental immunity would avoid, the conflict is created.”

Even with differing perspectives on federalism, Kennedy’s and Kavanaugh’s views are not likely far apart on this subject.

In the takings clause context, Kennedy joined the court’s liberals in deciding that the action in question was not a taking in Murr v. Wisconsin:

Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. Courts must strive for consistency with the central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here.

Kavanaugh has not ruled in many takings clause cases, so we cannot clearly identify his jurisprudential position in this area. In fact, only two opinions in which he voted on the D.C. Circuit directly mention the takings clause. These opinions are El Shifa Pharm. v. United States and Pharm. Care Management v. D.C. Kavanaugh did not write an opinion in either case.

Lastly, Kennedy embraced a broad perspective on due process and equal protection rights in several cases. This might have been most aptly embodied by his majority opinion in Obergefell v. Hodges in which he wrote:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

Kavanaugh likely does not hold as expansive views on the subject. In Atherton v. D.C. Office of Mayor, a case about jury composition, Kavanaugh signed on to an opinion that held that an equal protection claim was barred. Judge Harry Edwards’ opinion stated:

Atherton’s complaint and supporting materials merely allege that Zachem, Bailey-Jones, and Wynn communicated about his removal before he was dismissed from the grand jury. These bare facts clearly do not raise an inference that Zachem, Bailey-Jones, and Wynn were conspiratorially motivated by some class-based, invidiously discriminatory animus. The complaint also asserts that the defendants “conspired under color of law to illegally remove Atherton… for ethnic purposes,” and that Atherton was illegally removed from the grand jury in violation of the Constitution and D.C. law. But these “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a cause of action under § 1985(3). We therefore affirm the District Court’s dismissal of Atherton’s § 1985(3) claims.

Kavanaugh also appears to favor originalist principles more than Kennedy did. This would likely put him at odds with Kennedy’s pragmatic approach in cases like Obergefell. Kavanaugh’s deference to originalist principles is evident in opinions like his dissent in Heller II, in which he wrote:

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.”

With these distinctions between Kennedy and Kavanaugh, there is little doubt that Kavanaugh will rule more conservatively on the balance than Kennedy did. This will likely occur in matters important to the general public as well as to particular groups. In the abortion context, for instance, Kavanaugh has expressed concerns regarding the underpinnings of Roe v. Wade. Kennedy, by contrast was in the court’s majority upholding much of the Roe decision in Planned Parenthood v. Casey. Kennedy was also in the court’s majority, and he assigned the recent decision in Whole Woman’s Health v. Hellerstedt invalidating Texas’ abortion statute to Breyer.

Still, presidents have not been perfect gauges of Supreme Court justices’ jurisprudential philosophies. Republican Presidents Dwight Eisenhower, Gerald Ford and George H.W. Bush appointed liberal-leaning Chief Justice Earl Warren, Stevens and Justice David Souter, respectively. After these missteps, though, and with the careful vetting of today’s nominees, we are less likely to see such a situation recur. Although we cannot know how Kavanaugh’s true preferences and beliefs will correspond to Kennedy’s until Kavanaugh has several Supreme Court decisions under his belt, with examples like these we can say with a strong degree of certainty that he will likely push the court farther to the right.

This post was originally published at Empirical SCOTUS.

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Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knows

Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knowsThe discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement […]

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Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knows

The discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement rumors previously circulated, many on the left were fearful of how this would shift the court in the conservative direction (and many still are). Then, as Kennedy failed to join the court’s liberal justices  in any 5-4 decisions this past term, some became skeptical of whether Kennedy was as moderate as he was often portrayed. Over the years, Kennedy did side with the court’s more liberal justices in important rulings and was often the swing vote for this coalition when there was one. If Kavanaugh is confirmed, he is unlikely to play a similar role. The question is rather how far to the right Kavanaugh will push the court.

Measures over time

The recent rhetoric about how Kennedy did not side with the court’s liberals might be overwrought. Although Kennedy was certainly a solid conservative vote in many cases, he was not shy about voting against the court’s conservative bloc, even this past term. Since the 2000 term, if we take this bloc to be composed of Chief Justices William Rehnquist and John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Neil Gorsuch, Kennedy sided against at least three of these justices in the following number of decisions per term.

Click graph to enlarge.

The decisions with such a voting composition from the 2017 term include Tharpe v. Sellers, McCoy v. Louisiana, Wilson v. Sellers, Hughes v. United States, Chavez-Meza v. United States and Florida v. Georgia.

Another way of looking at where Kennedy fell on the ideological spectrum over time is through the lens of the justices with whom he voted most frequently. The Martin-Quinn Scores are based on data collected with this in mind. The following figure looks at the distance between Kennedy’s scores and those for the other justices over time. Larger numbers equate to larger differences between Kennedy and respective justices and vice-versa.

Click graph to enlarge.

Although Kennedy is often located far away from several of the more liberal justices, Thomas was the justice furthest from Kennedy for the majority of terms since 2000.

Conservative disagreement

Kennedy often but not always sided with the more conservative over the more liberal justices. He also was most often the majority opinion author in cases since 2000 in which he took a position opposed to that of at least three conservative justices.

Click graph to enlarge.

Although Kennedy frequently assigned the opinions in such instances, the associate justice who most often performed that function was Justice John Paul Stevens.

Click graph to enlarge.

Kennedy did not oppose all of the conservative justices equally in these instances. He was least frequently opposed to Roberts’ position, while he was never on the same side as Rehnquist.

Click graph to enlarge.

To be fair, the sample size for Gorsuch is smallest, so we don’t really know where the pendulum would have swung with him. Aside from those justices, in such cases Kennedy was closer to Alito than he was to either Scalia or Thomas. These data give a preliminary sense that Kennedy was a more nuanced justice than a traditional liberal or conservative even in his final year on the court. The next step is identifying whether these decisions cluster into certain case types.

Cases to distinguish Kennedy and Kavanaugh

One of the most interesting questions for court-watchers is predicting, assuming that Kavanaugh is more conservative than Kennedy, how Kavanaugh’s views will diverge from those of Kennedy. To work toward an answer for this, we can first look to when Kennedy voted in opposition to the court’s more conservative justices. The data for these decisions, like those above, are from cases since the 2000 term in which Kennedy was on the opposing side to that of at least three of the more conservative justices. The figure looks at which issues, as coded in the Supreme Court Database, dominated these decisions (based on issues that appeared in at least two such decisions).

Click graph to enlarge.

This is a fairly normal list of cases that tracks well with the types of cases the court generally hears. Many of the leading issues involve criminal justice or due process concerns. The Fifth, Eighth, and/or 14th amendments are also central to many of these decisions.

These issues suggest that there are many cases in which Kennedy disagreed with several if not all of the court’s more conservative justices. Kavanaugh would have also likely been on the opposite side of Kennedy in many such decisions if the opportunity had presented itself. I’ll break down some potential differences between Kennedy and Kavanaugh on the issues that appear most frequently in the figure above.

One of Kennedy’s most notable majority opinions dealing with writs of habeas corpus was the Guantanamo detainee case of Boumediene v. Bush. In that case Kennedy wrote that the process afforded certain detainees was insufficient to meet the constitutional threshold. Kennedy wrote:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

Although not directly involved in the Boumediene case, Kavanaugh heard and helped decide several other cases that examined the procedures provided to Guantanamo detainees. In these cases, he tended to side with the government. In Al-Bihani v. Obama, for instance, Kavanaugh voted with a panel that upheld the president’s power in this area. In that decision, Judge Janice Brown wrote:

In light of these provisions of the 2006 and 2009 MCAs, the facts that were both found by the district court and offered by Al-Bihani in his traverse place Al-Bihani within the “part of” and “support” prongs of the relevant statutory definition. The district court found Al Qaeda members participated in the command structure of the 55th Arab Brigade, making the brigade an Al Qaeda-affiliated outfit, and it is unquestioned that the 55th fought alongside the Taliban while the Taliban was harboring Al Qaeda. Al-Bihani’s evidence confirmed these points, establishing that the 55th “supported the Taliban against the Northern Alliance,” a Coalition partner, and that the 55th was “aided, or even, at times, commanded, by al-Qaeda members.” Al-Bihani’s connections with the 55th therefore render him detainable. His acknowledged actions accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders strongly suggest, in the absence of an official membership card, that he was part of the 55th. Even assuming, as he argues, that he was a civilian “contractor” rendering services, those services render Al-Bihani detainable under the “purposefully and materially supported” language of both versions of the MCA. That language constitutes a standard whose outer bounds are not readily identifiable. But wherever the outer bounds may lie, they clearly include traditional food operations essential to a fighting force and the carrying of arms. Viewed in full, the facts show Al-Bihani was part of and supported a group prior to and after September 11 that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers.

The distinctions between Kennedy’s and Kavanaugh’s positions in this and other cases do not necessarily mean that they would vote on opposite sides of the same case. The facts are different in the cases, the court of appeals is constrained by precedent in a different way than the Supreme Court, and the legal parameters changed in the time between the two decisions. That said, the differences suggest possibly disparate outlooks.

Although the area in which Kennedy voted in opposition to the court’s more conservative justices most was habeas corpus, the differences were evident in several other areas as well. Kennedy was not a consistent vote against the death penalty like Justices Stephen Breyer and Sonia Sotomayor, but he sided with the more liberal justices’ positions in several such cases. One example is in Hall v. Florida. In that case he wrote that Florida’s death penalty practice did not pass constitutional muster:

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

Although it is hard to generalize from a small set of cases, it is still notable that in Kavanaugh’s separate opinion in Roth v. Department of Justice he wrote the following in opposition to a new death penalty exception:

In the end, the majority opinion distinguishes away a slew of applicable precedents by decreeing a new death penalty exception that overrides Exemption 7(C)’s protection of personal privacy. The result in this FOIA case, by the majority opinion’s own admission, would be different if Bower were serving a sentence of life imprisonment. Of course, the information sought here goes to Bower’s guilt, not to his sentence. The majority opinion’s reasoning, which rests on Bower’s death sentence, is thus an odd fit with the nature of the information sought. Beyond that, the major problem with the majority opinion’s approach is that there is no statutory or precedential support for creating a new death penalty exception to the important privacy protection in Exemption 7(C). Creating any such exception is a decision properly left to Congress and the Executive Branch. In justifying its new death penalty exception, the majority opinion lobs a rhetorical volley, saying that the opposing position would allow the government to deliberately and knowingly kill an innocent man. That is wildly inaccurate. The traditional processes such as habeas, clemency, and the like are constitutionally and statutorily designed to prevent such a travesty of justice. As the Supreme Court said, “the framers of the FOIA” did not have in mind “disclosure of records regarding private citizens, identifiable by name.” Moreover, if federal government officials are violating their legal and ethical disclosure responsibilities in the criminal justice and clemency forums, it is unclear why the majority opinion thinks those same officials would suddenly comply with FOIA orders.

The Supreme Court and D.C. Circuit death penalty cases deal with different facets of the issue. Still, in these opinions we can see Kennedy’s reluctance to take a broad view of when the death penalty is appropriate, while Kavanaugh is not entirely skeptical of the practice.

Kennedy’s and Kavanaugh’s views on criminal sentencing statutes are not totally similar either. In Freeman v. United States, Kennedy describes the need for flexible approach to federal sentencing guidelines:

The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.

The crack-cocaine range here is a prime example of an unwarranted disparity that Section 3582(c)(2) is designed to cure. The commission amended the crack-cocaine guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the commission concluded, “significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.”

By contrast, Kavanaugh takes a more deferential approach in his dissent in In Re Sealed Case:

In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range. To be sure, the Supreme Court’s remedial opinion in Booker was open to multiple readings and could have been interpreted to preserve this kind of Guidelines-centric appellate review. But the Court’s recent decisions in Rita, Kimbrough, and Gall, as I read them, do not permit such an approach; appellate review is for abuse of discretion and is limited to assessing only whether certain procedural requirements were met and whether the sentence is substantively “reasonable.” Recognizing that the governing Supreme Court decisions are not entirely unambiguous, and despite my serious concerns about the sentencing disparities that could well ensue as a result of the current case law, I think our appellate role in the Booker-Rita-Kimbrough-Gall sentencing world is more limited than the majority opinion suggests.

The judge and justice also did not see eye to eye in the area of Fourth Amendment search and seizures. These cases are heavily fact based, however, and so it is difficult to fully distinguish the approaches of the two judges. That said, Kennedy sided with the liberals in several instances holding that searches were unreasonable. This was the case in Ferguson v. Charleston, in which the court in an opinion by Kennedy concurred that certain bodily searches of pregnant mothers were unconstitutional:

I agree with the Court that the search policy cannot be sustained. As the majority demonstrates and well explains, there was substantial law enforcement involvement in the policy from its inception. None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives. The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions, as an integral part of a program which seeks to achieve legitimate, civil objectives. The traditional warrant and probable-cause requirements are waived in our previous cases on the explicit assumption that the evidence obtained in the search is not intended to be used for law enforcement purposes. Most of those tested for drug use under the policy at issue here were not brought into direct contact with law enforcement.”

Kavanaugh has held searches allowable in several instances when they were questioned. Even though cases in this area are not wholly comparable, this suggests that Kennedy and Kavanaugh might have been on opposite sides if they had been on the court at the same time and such a case arose. In United States v. Spencer, for example, Kavanaugh upheld a challenged search as reasonable:

It is true that when officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate for example, if the police learn that “contraband is no longer located at the place to be searched.” But the dismissal here is not such a “fact.” Rather, it was a legal conclusion reached by a different judge in a different matter; such legal disagreement is hardly surprising given that reasonable minds “frequently may differ on the question” of probable cause. Assuming it were a fact, it was not material because it would not negate probable cause. In addition, as Spencer’s counsel correctly acknowledged at oral argument, the dismissal of the D.C. charge against Spencer would not carry estoppel effect in a separate search-warrant proceeding.

Kennedy and Kavanaugh have expressed different views outside the criminal context. Kennedy, for instance, has agreed that federal laws should not necessarily pre-empt state laws. He did not always take this view, though, because he wrote the majority opinion in Arizona v. United States, in which the court held that Arizona’s policy for identifying illegal immigrants conflicted with the federal approach. In Wyeth v. Levine though, Kennedy signed on to Stevens’ decision favoring the state law at issue.

In Saleh v. Titan, Kavanaugh signed onto Judge Laurence Silberman’s opinion, which held in part:

Nevertheless, the court acknowledged that a significant conflict must exist for state law to be preempted. In Boyle, the court observed that the contractor could not satisfy both the government’s procurement design and the state’s prescribed duty of care. It looked to the FTCA’s exemption to the waiver of sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused,” to find a statutory provision that articulated the “outlines” of the significant conflict between federal interests and state law. Since the selection of the appropriate design of military equipment was obviously a governmental discretionary function and a lawsuit against a contractor that conformed to that design would impose the same costs on the government indirectly that the governmental immunity would avoid, the conflict is created.”

Even with differing perspectives on federalism, Kennedy’s and Kavanaugh’s views are not likely far apart on this subject.

In the takings clause context, Kennedy joined the court’s liberals in deciding that the action in question was not a taking in Murr v. Wisconsin:

Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. Courts must strive for consistency with the central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here.

Kavanaugh has not ruled in many takings clause cases, so we cannot clearly identify his jurisprudential position in this area. In fact, only two opinions in which he voted on the D.C. Circuit directly mention the takings clause. These opinions are El Shifa Pharm. v. United States and Pharm. Care Management v. D.C. Kavanaugh did not write an opinion in either case.

Lastly, Kennedy embraced a broad perspective on due process and equal protection rights in several cases. This might have been most aptly embodied by his majority opinion in Obergefell v. Hodges in which he wrote:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

Kavanaugh likely does not hold as expansive views on the subject. In Atherton v. D.C. Office of Mayor, a case about jury composition, Kavanaugh signed on to an opinion that held that an equal protection claim was barred. Judge Harry Edwards’ opinion stated:

Atherton’s complaint and supporting materials merely allege that Zachem, Bailey-Jones, and Wynn communicated about his removal before he was dismissed from the grand jury. These bare facts clearly do not raise an inference that Zachem, Bailey-Jones, and Wynn were conspiratorially motivated by some class-based, invidiously discriminatory animus. The complaint also asserts that the defendants “conspired under color of law to illegally remove Atherton… for ethnic purposes,” and that Atherton was illegally removed from the grand jury in violation of the Constitution and D.C. law. But these “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a cause of action under § 1985(3). We therefore affirm the District Court’s dismissal of Atherton’s § 1985(3) claims.

Kavanaugh also appears to favor originalist principles more than Kennedy did. This would likely put him at odds with Kennedy’s pragmatic approach in cases like Obergefell. Kavanaugh’s deference to originalist principles is evident in opinions like his dissent in Heller II, in which he wrote:

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.”

With these distinctions between Kennedy and Kavanaugh, there is little doubt that Kavanaugh will rule more conservatively on the balance than Kennedy did. This will likely occur in matters important to the general public as well as to particular groups. In the abortion context, for instance, Kavanaugh has expressed concerns regarding the underpinnings of Roe v. Wade. Kennedy, by contrast was in the court’s majority upholding much of the Roe decision in Planned Parenthood v. Casey. Kennedy was also in the court’s majority, and he assigned the recent decision in Whole Woman’s Health v. Hellerstedt invalidating Texas’ abortion statute to Breyer.

Still, presidents have not been perfect gauges of Supreme Court justices’ jurisprudential philosophies. Republican Presidents Dwight Eisenhower, Gerald Ford and George H.W. Bush appointed liberal-leaning Chief Justice Earl Warren, Stevens and Justice David Souter, respectively. After these missteps, though, and with the careful vetting of today’s nominees, we are less likely to see such a situation recur. Although we cannot know how Kavanaugh’s true preferences and beliefs will correspond to Kennedy’s until Kavanaugh has several Supreme Court decisions under his belt, with examples like these we can say with a strong degree of certainty that he will likely push the court farther to the right.

This post was originally published at Empirical SCOTUS.

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A “view” from the East Room: The Brett Kavanaugh story

A “view” from the East Room: The Brett Kavanaugh storyI’m in an Uber on my way to the White House for President Donald Trump’s announcement of his Supreme Court nominee when we hit a time warp of sorts. A few blocks of Pennsylvania Avenue just west of the White House are being transformed to the era of President Ronald Reagan by film crews for […]

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A “view” from the East Room: The Brett Kavanaugh story

I’m in an Uber on my way to the White House for President Donald Trump’s announcement of his Supreme Court nominee when we hit a time warp of sorts.

A few blocks of Pennsylvania Avenue just west of the White House are being transformed to the era of President Ronald Reagan by film crews for “Wonder Woman 1984,” the sequel to the hit 2017 movie about the female superhero that has been filming around the city the last few weeks. Since much of Washington looks like it could still be in the 1980s, the crew does not appear to have had to make too many dramatic period touches for this outdoor scene.

Down the street, at 1600 Pennsylvania Avenue, a different set of writers and producers are putting the final touches on their own script that will aim to evoke the Reagan era.

When I arrive at the White House press quarters, there is a crew from a TV station in South Bend, Ind., where finalist Judge Amy Coney Barrett lives and maintains her 7th Circuit chambers. Cable news outlets are reporting that Barrett is at home this evening, so it appears this crew will not be getting a big local story. One technician mentions that Judge Thomas Hardiman of the 3rd Circuit, another of the four finalists (and one of the two “final” finalists), attended the University of Notre Dame in South Bend, so that would be a story for that crew. But they are in for disappointment.

Still, with just under an hour to go before the announcement, the Trump administration has again kept the president’s Supreme Court choice remarkably under wraps. There is a slight buzz among a few White House reporters that Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit will get the nod, but there are also well-known network TV news correspondents who are pressing any Trump administration official who walks by with questions such as, “So, is it Hardiman or Kavanaugh?”

At about 8:35 p.m., White House press office staff members wrangle the reporters for the short walk to the East Room. Last year, for the unveiling of Neil Gorsuch, we went up to the North Portico and through one of the main doors to the White House. This time, we are led on a walk through the building’s service level. If you ever wondered if there is a box crusher on the grounds of the White House, the answer is yes, and it is parked right outside the East Room.

Inside the ornate East Room, most of the president’s guests are seated as reporters enter at about 8:45 p.m. To the right of the small stage, in the front row, is Rudolph Giuliani, one of the president’s private lawyers in investigative matters that have gotten almost as much air time today as the Supreme Court vacancy.

Next to Giuliani, with one empty chair between them, is Leonard Leo, who is on leave from the Federalist Society to serve as Trump’s special adviser on the nomination.

In the front row on the other side of the stage is John Malcolm of the Heritage Foundation, who like Leo is partly responsible for the president’s list of 25 prospective nominees. Next to him is Maureen Scalia, the wife of the late Justice Antonin Scalia. And next to her is Edwin Meese, the Ronald Reagan Distinguished Fellow Emeritus at Heritage, and a former adviser to and attorney general under Reagan. And next to him is a Roman Catholic priest who will be introduced to all a little later.

Legal luminaries dot the room. On one side is Rod Rosenstein, the deputy attorney general, who won the case he argued before the Supreme Court in the just-ended term. In the middle of the room is Attorney General Jeff Sessions. And on another side is Greg Katsas, the former deputy White House counsel who helped usher Gorsuch’s confirmation hearing. Katsas is now on the D.C. Circuit. Top White House aides to the president abound, as well, including Chief of Staff John Kelly, Press Secretary Sarah Sanders, Marc Short, the director of legislative affairs and White House Counsel Don McGahn, who is said to have championed the nominee who will be introduced shortly.

Just behind my section of press seats, presidential counselor Kellyanne Conway greets Boris Epshteyn, the former White House communications aide to Trump who is now the chief political analyst for Sinclair Broadcast Group TV stations.

Vice President Mike Pence, who is said to have favored Barrett, his fellow Indianan, enters the room, trailed by a quite a few Republican senators, including Sen. Mike Lee of Utah, who was said to be under consideration at one point.

We don’t see any Democratic lawmakers or progressives of any kind. The three Democratic senators who voted for Gorsuch’s nomination—Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia—were said to have declined an invitation from the president to be here tonight. And last year, I bumped into Neal Katyal, the former acting U.S. solicitor general under President Barack Obama, on the White House grounds before the unveiling of Gorsuch. He supported that nomination and later introduced Gorsuch at his Senate confirmation hearing. There is no immediate sign of anyone like that here tonight.

First lady Melania Trump enters the room just before 9 p.m., when the TV correspondents, most standing on chairs, loudly deliver their live opens to their cameras, a spectacle the guests gathered in the East Room seem to find amusing.

Trump enters the room from the long center hallway and soon is thanking Justice Anthony Kennedy for his four decades of public service. A few heads look around the room, but Kennedy is not here tonight. (We think he is still in Salzburg, Austria, where just last Friday he was scheduled to have a reception with students participating a summer law school program.)

The president mentions that he chose Gorsuch to replace “the late, great Justice Antonin Scalia,” and he recognizes Maureen Scalia. He says that both Kennedy and Scalia “were appointed by a president who understood that the best defense of our liberty—and a judicial branch immune from political prejudice—were judges that apply the Constitution as written. That president happened to be Ronald Reagan.”

“In keeping with President Reagan’s legacy, I do not ask about a nominee’s personal opinions,” Trump says. “What matters is not a judge’s political views but whether they can set aside those views to do what the law and the Constitution require.”

And with that, he announces Kavanaugh as his choice. And the doors behind Trump on his right open and the new nominee enters with his wife, Ashley, and his daughters Margaret and Liza. There is sustained applause from the crowd.

Trump touts Kavanaugh’s legal credentials and community service before turning the microphone over to him.

Kavanaugh, who argued and lost one case before the Supreme Court, is perhaps reticent to adjust the microphone, which seems to have been set for the taller Trump. (There is a sign on the lectern in the Supreme Court advising lawyers not to touch the microphones, but they are permitted to crank the whole lectern up or down if they wish.) The result is that the microphone is aimed at Kavanaugh’s forehead as he speaks.

Kavanaugh points out his parents (Everett and Martha Kavanaugh), who are in the front row directly in front of him, next to Melania Trump.

“The president introduced me tonight as Judge Kavanaugh, but to me, that title will always belong to my mom,” the nominee says after noting that his mother had taught in the public schools in Washington before going to law school and becoming a prosecutor. (She later became a Maryland state judge.)

Kavanaugh says his father went to night law school while working full time. “He has an unparalleled work ethic and has passed down to me his passion for playing, and watching, sports,” he says.

He notes that for the past 11 years, he has taught “hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan.”

One or two audience members gasp slightly at the mention of the liberal justice.

“I am part of the vibrant Catholic community in the D.C. area,” Kavanaugh continues. “The members of that community disagree about many things, but we are united by a commitment to serve. Father John Enzler is here. Forty years ago, I was an altar boy for Father John. These days, I help him serve meals to the homeless at Catholic Charities.”

Kavanaugh refers to his “spirited daughters,” with Margaret loving sports and reading, while Liza also likes sports, “and she loves to talk.” He reaches out and gives her a hand slap.

He notes that he met his wife, Ashley, when both worked at the White House in 2001. (Ashley was a personal secretary to President George W. Bush while her husband was a counsel and later staff secretary to the president.)

“Our first date was on September 10, 2001. The next morning I was a few steps behind her as the Secret Service shouted out to all of us to sprint out the front gates of the White House, because there was an inbound plane,” he says, in a somewhat oblique reference to the terrorist attacks of Sept. 11 that year.

He closes by saying that he will begin his courtesy calls to U.S. senators on Tuesday morning.

“I will tell each senator that I revere the Constitution,” Kavanaugh says. “I believe that an independent judiciary is the crown jewel of our constitutional republic.”

With that, Trump leads Kavanaugh, his wife, and the two daughters down the center hallway.

In the coming days, advocates on both sides of the nomination will seek, in their own ways, to evoke a version of Washington from the 1980s. Kavanaugh’s supporters will fondly look to the days when Scalia, another sharp mind from the D.C. Circuit, could convince senators on both side of the aisle to overwhelmingly support his confirmation despite his deeply conservative views. (Scalia was confirmed 98-0 in 1986.)

Kavanaugh’s opponents will hark back to 1987, when another high court nominee from the D.C. Circuit, Judge Robert Bork, was painted as holding extreme and dangerous conservative views, and his nomination went down to defeat.

Pulling off a sequel like that would seem to require all the plot twists, special effects and movie magic that Kavanaugh’s antagonists can muster.

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Trump nominates Kavanaugh to Supreme Court

Trump nominates Kavanaugh to Supreme CourtIt has been nearly 25 years since Brett Kavanaugh arrived at the Supreme Court as a law clerk for Justice Anthony Kennedy. A few years later, Kavanaugh was back at the court as an advocate, arguing (unsuccessfully) that Kenneth Starr, the independent counsel for the Whitewater investigation, should have access to notes taken by a […]

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Trump nominates Kavanaugh to Supreme Court

It has been nearly 25 years since Brett Kavanaugh arrived at the Supreme Court as a law clerk for Justice Anthony Kennedy. A few years later, Kavanaugh was back at the court as an advocate, arguing (unsuccessfully) that Kenneth Starr, the independent counsel for the Whitewater investigation, should have access to notes taken by a lawyer for former White House counsel Vince Foster in a conversation with his client shortly before Foster committed suicide. Kavanaugh could return to the Supreme Court in the fall, this time as a justice: Tonight President Donald Trump nominated Kavanaugh to fill the vacancy that will be created on the court when Kennedy retires on July 31. If, as is widely expected (and Republicans hope), Kavanaugh proves to be more conservative than his former boss, the Supreme Court could shift further to the right on a variety of high-profile issues, ranging from reproductive rights to affirmative action.

Photo by Mark Walsh

Trump’s nomination of Kavanaugh capped a whirlwind process that began on the afternoon of June 27, when Kennedy announced his plans to retire. Kavanaugh had long been regarded as a possible Supreme Court nominee in a Republican administration, but there were rumors that his stock might have fallen in the past few days, because of concerns that his views might be too moderate, that he has too many ties to the Bush family and that he had once argued that a president should be impeached for lying to his staff and the public. Senate Majority Leader Mitch McConnell had reportedly urged the president to choose another nominee with a shorter paper trail than Kavanaugh, whose nomination could require senators to review millions of pages of documents.

But if the president shared these concerns, he apparently overcame them. In a prime-time ceremony at the White House tonight, Trump introduced Kavanaugh, who was accompanied by his wife Ashley, who served as President George W. Bush’s personal secretary, and their two school-aged daughters, Margaret and Liza. Trump described Kavanaugh as having “impeccable credentials” and a “proven commitment to equal justice under the law.” Kavanaugh, Trump continued, “is considered a judge’s judge,” “a true thought leader among his peers” who is “universally regarded as one of the finest and sharpest legal minds of our time.” Trump concluded by urging senators to quickly confirm Kavanaugh, whom he described as “this incredibly qualified nominee” who deserves “robust bipartisan support.”

The 53-year-old Kavanaugh is the consummate Washington insider, well-liked in the city’s legal community. Kavanaugh has lived in the D.C. area for essentially his entire life: He was born in Washington and raised in Maryland and, like Justice Neil Gorsuch (who graduated two years after him), attended the Georgetown Preparatory School, a prestigious Catholic boys’ school in Rockville. He left the D.C. area to attend Yale College and Yale Law School, graduating from the latter in 1990, followed by clerkships on federal courts of appeals in Delaware and California. He returned for a fellowship in the office of then-U.S. solicitor general Kenneth Starr, followed by the Kennedy clerkship. Kavanaugh would go to work for Starr again in the Office of the Independent Counsel, where he played a key role in drafting the Starr Report to Congress, which outlined 11 grounds for the impeachment of then-President Bill Clinton.

In 2006, President George W. Bush nominated Kavanaugh (for the second time – his first nomination stalled) for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. He has sat on the D.C. Circuit – the springboard to the Supreme Court for three of the current justices – for 12 years. During that time, Kavanaugh has compiled a solidly conservative track record (reviewed in more detail by my colleague Edith Roberts here), on everything from the detention of enemy combatants to his dissent from the full court’s decision not to review an opinion by a three-judge panel upholding the accommodation that the Obama administration offered to religious nonprofits who objected to providing contraceptive coverage to their female employees. Last fall Kavanaugh dissented from the full D.C. Circuit’s decision that cleared the way for an undocumented pregnant teenager to obtain an abortion, arguing that the court’s ruling was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful minors in U.S. Government detention to obtain immediate abortion on demand.”

In his relatively brief remarks this evening, Kavanaugh began by thanking Trump, stressing Trump’s “appreciation for the vital role of the American judiciary.” “No president,” Kavanaugh continued, “has ever consulted more widely” or “talked to more people with more backgrounds to seek input about a Supreme Court nomination.”

Kavanaugh then praised retiring Justice Anthony Kennedy, describing him as someone who “devoted his career to securing liberty.” Kavanaugh said that he was “deeply honored to be nominated” to fill the justice’s seat on the Supreme Court.

The rest of Kavanaugh’s remarks were personal and heartfelt, focusing on his family and describing himself, in essence, as a suburban “Everydad.” He noted that, when he was a child, his mother taught history at two predominantly African-American high schools in Washington, D.C. – an experience that taught him, he said, “about the importance of equality for all Americans.” Martha Kavanaugh went to law school when her son was 10 years old and became one of the first female prosecutors in the area. While practicing her closing arguments at the dinner table, his mother’s “trademark line” was “Use your common sense. What rings true? What rings false? That’s good advice for a juror, and for a son,” Kavanaugh suggested. Kavanaugh’s father went to law school at night while also working full-time, he recounted, and passed on his work ethic and his love for sports.

Kavanaugh switched gears briefly, telling the audience gathered in the East Room of the White House that his high school motto was “Men for others.” He has tried to live out that creed, Kavanaugh emphasized, through a career in public service. As a judge, he said, his judicial philosophy has been “straightforward. A judge must be independent and must interpret the law, not make it.” In particular, he stressed, he believes in interpreting statutes and the Constitution as they are written, “informed by history and tradition and precedent.”

Before turning back to his family, Kavanaugh highlighted his bipartisan bona fides, noting that he was hired to teach at Harvard Law School by then-Dean Elena Kagan, who would later be appointed to the Supreme Court by President Barack Obama, and he expressed his pride that a majority of his law clerks – who come from “diverse backgrounds and points of view” – have been women. He also described himself as a proud member of the city’s Catholic community: “The members of that community disagree about many things,” he acknowledged, “but we are united by a commitment to serve.”

Kavanaugh introduced his daughters, both avid athletes, and his wife, whom he met while both were working in the Bush White House. Their first date, he told the crowd, was on September 10, 2001; the next day, they sprinted out of the White House together when it was evacuated after hijacked planes crashed into the World Trade Center towers in New York and the Pentagon in Virginia.

Kavanaugh explained that he would begin meeting with senators tomorrow. “I will tell each senator,” he said, “that I revere the Constitution.” “I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed,” he concluded, “I will keep an open mind in every case, and I will always strive to preserve the Constitution and the American rule of law.”

The confirmation hearings for Justice Neil Gorsuch began roughly a month and a half after he was nominated. Senator Charles Grassley of Iowa, the head of the Senate Judiciary Committee, recently suggested that the confirmation hearing for a nominee with a lengthy track record – which Kavanaugh certainly has – could take longer, so that Kavanaugh might not be confirmed before the Supreme Court reconvenes in October.

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Voting rights in Justice Kennedy’s Constitution

Voting rights in Justice Kennedy’s ConstitutionEdward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law. Justice Anthony Kennedy’s jurisprudence on voting rights must be understood in the context of his overall constitutional philosophy. While certainly appreciative of the role […]

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Voting rights in Justice Kennedy’s Constitution

Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and the director of Election Law @ Moritz at The Ohio State University Moritz College of Law.

Justice Anthony Kennedy’s jurisprudence on voting rights must be understood in the context of his overall constitutional philosophy. While certainly appreciative of the role that democratic elections play as part of the republican form of government established by the Constitution — see, for example, his concurrences in U.S. Term Limits, Inc. v. Thorton (1996) and Cook v. Gralike (2001) — Kennedy did not view voting rights as having a paramount status within the pantheon of constitutional rights.

Nor did Kennedy consider the protection of voting rights as legitimating the rest of the Constitution. Rather, he saw voting rights as important insofar as they were part of the Constitution. For him, it was the priority of the Constitution itself that gave voting rights their significance. The hierarchy of authority, as he saw it, ran from the Constitution to democracy, not the other way around.

Justice Kennedy in 2014 announces plurality opinion in Schuette v. Coalition to Defend Affirmative Action (Art Lien)

We can see this philosophy at work in Kennedy’s 2013 concurrence in Arizona v. Inter Tribal Council, a case about the pre-emptive effect of congressional regulation under the elections clause of Article I, Section 4. Ordinarily, the Supreme Court hesitates before finding that a federal statute pre-empts state law, and this general hesitation has been doctrinally formalized as a “presumption against pre-emption.” Writing the opinion for the court, however, Justice Antonin Scalia construed the distinctive language of the elections clause concerning the interplay of state and federal power over the “Times, Places, and Manner” of congressional elections to mean that this ordinary presumption against pre-emption does not apply in the specific context of the elections clause. Although Kennedy agreed with the court’s bottom-line finding of pre-emption in the particular case, he balked at Scalia’s characterization of congressional regulation under the elections clause as being any different from commerce clause regulation or the exercise of any other congressional power granted by the Constitution. “There is no sound basis for the Court to rule,” Kennedy argued, “that there exists a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending on which power Congress has exercised.” The need to protect state sovereignty from unduly expansive pre-emption, he continued, “is the same regardless of the power Congress invokes, whether it is, say, the commerce clause, the war power, the bankruptcy power, or the power to regulate federal elections under Article I, § 4.”

An even more elaborate explanation of the subordinate role that voting rights played in Kennedy’s overall constitutional jurisprudence is found in his 2014 plurality opinion in Schuette v. Coalition to Defend Affirmative Action. That case involved a Michigan constitutional amendment, adopted as a ballot measure, that banned “preferential treatment” on the basis of race. The Michigan measure was challenged as violating the federal equal protection clause, and the court rejected that challenge on the ground that the citizens of Michigan were entitled democratically to choose whether or not they wanted to adopt affirmative action as the state’s public policy. In upholding the “exercise of [the Michigan citizenry’s] democratic power,” Kennedy was careful to cabin this democratic authority within a general account of constitutional rights that prioritized personal freedom over collective self-government:

The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, a wrongful invasion of the home, or punishing a protester whose views offend others, and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.

This passage shows clearly that, for Kennedy, freedom comes first and democracy second, and that the purpose of democracy is to preserve and promote personal liberty.

In this respect, Kennedy’s constitutional philosophy is almost exactly opposite to the one articulated most famously by John Hart Ely. In his influential book “Democracy and Distrust,” Ely argued that the court should prioritize the protection of voting rights, so that citizens themselves can decide at the ballot box what personal liberties and freedoms they wish the law to safeguard. Ely argued also that the jurisprudence of the Warren court reflected this “representation-reinforcing” priority for the exercise of the court’s power to invalidate legislation. Whether or not Ely accurately characterized the Warren court’s philosophy, it is evident that the court did not follow this philosophy during the era in which Kennedy effectively controlled the direction of the court as its median justice.

Kennedy’s jurisprudential subordination of voting rights to other constitutional values explains some of his most significant decisions in the area of election law. Citizens United v. Federal Election Commission, for example, which in 2010 recognized the right of corporations to spend unlimited amounts of shareholder equity on electioneering, reflects a libertarian preference for the unfettered freedom of corporations to use their wealth as they wish over the capacity of the electorate to deliberate about how to govern their society. Likewise, Kennedy in 2000 wrote separately in California Democratic Party v. Jones to emphasize the First Amendment right of political parties to control primary elections, even at the expense of an electoral system designed to improve the ability of voters to make choices among the various candidates competing to hold office. Similarly, Kennedy’s crucial fifth vote for the 2013 majority opinion in Shelby County v. Holder, which nullified an historically crucial component of the Voting Rights Act, is best understood as reflecting his view that the power of Congress to protect voting rights is limited by the more fundamental constitutional commitment to federalism, including the proposition that the states themselves have a right to equal treatment by Congress.

Indeed, Kennedy’s most significant voting-rights decisions came in the context of racial discrimination with respect to elections, and these decisions tended to reflect his prioritization of racial equality as a constitutional commitment, rather than a prioritization of the right to vote itself. Emblematic is Rice v. Cayetano, in which Kennedy wrote the court’s opinion invalidating a Hawaii law that permitted only those of Hawaiian ancestry to vote for officials responsible for administering aid programs for native Hawaiians. In reaching this result, Kennedy described the 15th Amendment as entailing a “race neutrality command” more fundamental than the “one person, one vote” principle of the 14th Amendment. His multiple opinions for the court concerning the concept of “racial gerrymandering,” culminating last year in  Bethune-Hill v. Virginia State Board of Elections, demonstrate his longstanding desire to purge the political process of improper reliance on race as a basis of legislation.

With respect to partisan gerrymandering, Kennedy famously lacked the surefootedness that he displayed in the adjacent field of racial gerrymandering. This contrast, too, can be traced to his overall constitutional jurisprudence and the subordinate role of democracy in it. Kennedy’s commitment to race neutrality guided him in the race-based redistricting context. But he had no equivalent lodestar for the problem of excessive partisanship in redistricting. He was hoping, as he fervently expressed in 2004 in Vieth v. Jubelirer, that he would find an answer in his overall understanding of how the First Amendment protects freedom of political association. But the answer never came, in large part because the litigants who challenged partisan gerrymandering conceived of it as a defect in the public operation of democracy itself, not as an affront to private First Amendment freedoms. The plaintiffs, including in the recent fizzle of this term’s Gill v. Whitford, were never on the same constitutional wavelength as Kennedy.

A Supreme Court committed to the “representation-reinforcing” philosophy of John Hart Ely would not have struggled with the topic of partisan gerrymandering in the way that Kennedy did. An Ely-influenced court would have ruled partisan gerrymandering an unconstitutional distortion of the democratic process, preventing the electorate from asserting its will as an essential exercise of self-government. The ongoing legitimacy of the Constitution itself, from an Ely-influenced perspective, would necessitate the judicial elimination of excessive partisan gerrymandering as an overriding imperative. But fundamentally Kennedy was not an Ely-influenced jurist, and his inability to solve the problem of partisan gerrymandering — along with the rest of his voting-rights jurisprudence — reflects this most basic fact.

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Justice Kennedy, abortion and the legacy of a third choice

Justice Kennedy, abortion and the legacy of a third choiceSherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. When I clerked for Justice Harry Blackmun in 1992, his practice was to have breakfast with his law clerks every morning. One day, after we sat down to eat, the justice handed me a letter and asked me to […]

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Justice Kennedy, abortion and the legacy of a third choice

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School.

When I clerked for Justice Harry Blackmun in 1992, his practice was to have breakfast with his law clerks every morning. One day, after we sat down to eat, the justice handed me a letter and asked me to read it aloud.

I read the first paragraph and looked up uncertainly. The writer had said Blackmun was in the third trimester of his life, ready to enter the abortuary in the sky. I asked whether we should have the letter and writer assessed as a possible threat, but the justice shook his head. He seemed too relaxed for someone in whose home had long sat a chair with a bullet hole in it. A shooter had taken aim seconds after Dotty, Blackmun’s wife, had risen from her seat.

I have no idea whether Justice Anthony Kennedy received death threats for protecting reproductive choice. Either way, it could not have been easy for him. The easy option in 1992 was to join Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Clarence Thomas in overruling Roe v. Wade. Indeed, some of the language in the chief justice’s Planned Parenthood v. Casey dissent suggests that Rehnquist had originally written it as a majority, one that would almost certainly have included Kennedy.

Justice Kennedy during oral argument in Whole Woman’s Health v. Hellerstedt (Art Lien)

Blackmun and Kennedy shared more than a willingness to protect abortion rights. Both justices were, as Blackmun liked to say, someone’s “third choice.” President Richard Nixon had first nominated Clement Haynesworth and then G. Harrold Carswell, both of whom failed to ascend to the high court due to their questionable records on civil rights, along with other issues.

Before President Ronald Reagan selected Kennedy, he first nominated Robert Bork, whom the Senate rejected as ideologically extreme, and then Douglas Ginsburg, who asked to be withdrawn from consideration after admitting to marijuana use. Only then did Reagan turn to Kennedy, whom the Senate confirmed.

Just five years later, he disappointed social conservatives by co-authoring a three-justice opinion reaffirming the right to abortion. Liberal critics will point out that Casey provided substantially less protection for reproductive freedom than Roe v. Wade had 19 years earlier. The Casey joint opinion upheld all but one challenged Pennsylvania provision, the husband-notification requirement.

This criticism misses the fact that for Kennedy and the two other Republican appointees with whom he joined (Justices Sandra Day O’Connor and David Souter), the choice was not between Casey and Roe but between Casey and the Casey dissent. Even as they knew that more burdensome restrictions would now remain in place, contemporary abortion-rights supporters felt a palpable sense of relief when Casey had come out as it did.

In the years since then, Kennedy’s record on abortion-related matters has varied. A free speech libertarian, he consistently voted in favor of pro-life protesters and against laws and court orders aimed at protecting women seeking abortions from harassment. In Casey itself, echoing the pre-Casey opinion that Kennedy had joined in Rust v. Sullivan, the joint opinion upheld a requirement that doctors provide abortion patients with materials making factually questionable claims about fetal development.

Kennedy also sided with abortion opponents in two cases involving challenges to laws banning so-called “partial-birth abortions.” He first dissented from the court’s 2000 decision in Stenberg v. Carhart, which struck down Nebraska’s law while the dissenting Kennedy referred to doctors who perform abortions as “abortionists.”

After Justice Samuel Alito replaced O’Connor on the Supreme Court, Kennedy in 2007 turned his Stenberg dissent into law. Technically distinguishing rather than overruling the Nebraska precedent, Kennedy wrote an opinion for the court in Gonzales v. Carhart upholding a federal partial-birth abortion ban.

Kennedy’s two partial-birth opinions reflect his moral revulsion. Yet he did not draw a clear distinction between the abortion method that Nebraska and federal law forbade and those which they permitted. Nor did he explain how forbidding one kind of gruesome abortion but not another, sometimes less safe but equally gruesome kind, served the state’s interest in exhibiting respect for fetal life.

Kennedy’s opinion for the court in the federal case suggested that the law could advance an interest in informed choice. Kennedy speculated about the likely impact on women of undergoing a procedure in which the provider kills the fetus after it has partially exited the womb. He said: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” The acknowledged lack of reliable data seems to undercut this conclusion.

And even if women did experience abortion-regret syndrome, how would a ban on only one particular method prevent such a syndrome’s onset? According to Kennedy, doctors may be reluctant to share the gory details of the procedure with patients. He then added the following:

The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

Kennedy’s feelings about the abortions he describes are plain. He found the prohibited method barbaric and was willing to assume that it would cause regret, depression and misery. But even if all of his factual assumptions were correct, his response — the wish to ensure that “so grave a choice is well informed” — had little connection to a law prohibiting the procedure altogether. Yet he apparently concluded that banning “partial-birth” abortions served to inform patients about the procedure.

In addition, Kennedy’s factual guesses about the impact of abortion on a woman turned out not to reflect the whole story. Many women have no regrets, and the data fail to support a regret syndrome. Some of those who felt no regret have contributed to a controversial website, “Shout Your Abortion.”

Included among women who wrote for this site were those who declared that that they were grateful that they could terminate their pregnancies. Conversely, women sometimes regret the decision to have the child, as did a number of those who surrendered their babies in the era before Roe v. Wade. And some women regret having and keeping their children, though for obvious reasons, they tend not to “shout” about that.

At some point, many abortion-rights activists and lawyers began to lose faith in Kennedy, concluding that he was prepared to uphold virtually any abortion restriction that came his way. Then the court decided Whole Women’s Health v. Hellerstedt. The 5-4 ruling invalidated two provisions of a Texas statute mandating that abortion providers meet onerous requirements that could shutter a significant number of the state’s clinics without conferring a measurable health benefit upon women.

Kennedy joined Justice Stephen Breyer’s majority opinion finding that the Texas law imposed an undue burden on the abortion right. The ruling was important, because other states had adopted similar provisions in order to make abortions extremely difficult to obtain while leaving undisturbed the procedure’s technical status as legal.

In announcing that the court would weigh a state’s proffered interest against the burden that a law imposed on a woman’s choice, Whole Woman’s Health strengthened and usefully clarified the test that the Casey joint opinion had adopted nearly a quarter of a century earlier. That clarity might prove short-lived, however, because a post-Kennedy court is very likely to cut back on and perhaps eliminate the abortion right.

Even before Kennedy announced his retirement, the last week of the term brought another development from his chambers that negatively affected abortion rights. Writing for the court in NIFLA v. Becerra, Thomas, joined by Chief Justice John Roberts, Kennedy, Alito and Justice Neil Gorsuch, said that California could not compel “crisis pregnancy centers” – anti-abortion operations —  to inform patients about available, government-subsidized abortion services. California’s law requiring disclosure violated the centers’ First Amendment right not to speak, said the 5-4 majority.

The NIFLA court did not accept California’s argument that disclosure might be necessary because crisis pregnancy centers regularly draw pregnant women who want an abortion and mistakenly believe that they can get one there. On the assumption that pregnant women have visited the centers out of a genuine interest in their services, the court regarded California — in Kennedy’s words in a concurrence — as an “authoritarian government” attempting to compel abortion-friendly statements from pro-life workers.

Kennedy did not explain the apparent tension between his willingness to view California’s disclosure requirements as an authoritarian effort by the government to compel unwelcome speech by crisis pregnancy centers and other decisions he joined that upheld laws requiring speech by abortion providers.

In this and other reproductive rights cases, Kennedy disappointed the pro-choice community. Blackmun was at least as disappointed in Casey as pro-choice advocates were, focusing on the chasm between the Roe that he had authored and the far slimmer abortion right announced later. But Kennedy was never going to be Blackmun on abortion; for Kennedy, Casey was a big step, one on which he followed through with grace in Whole Women’s Health. Blackmun would have approved.

With Kennedy leaving the Supreme Court, these decisions and the abortion right that they guarantee may vanish in an instant or by a thousand cuts. Either way, we will learn just how pro-choice Kennedy was and just how grateful abortion-rights advocates should have been for the additional and unexpected quarter century of choice that he granted American women.

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