“Conservatives’ takeover of Supreme Court stalled by John Roberts-Brett Kavanaugh bromance.” That’s the headline of a story in USA Today. The author explains:
Chief Justice John Roberts and the court’s newest member, Brett Kavanaugh, have voted in tandem on nearly every case that’s come before them since Kavanaugh joined the court in October. They’ve been more likely to side with the court’s liberal justices than its other conservatives.
The two justices, both alumni of the same District of Columbia-based federal appeals court, have split publicly only once in 25 official decisions. Their partnership has extended, though less reliably, to orders the court has issued on abortion funding, immigration and the death penalty in the six months since Kavanaugh’s bitter Senate confirmation battle ended in a 50-48 vote.
I discussed the Roberts-Kavanaugh alliance in connection with the Court’s unwillingness to hear cases regarding Planned Parenthood and, at least so far, to hear key cases regarding the rights of gays and transgender individuals. The three solidly conservative Justices — Thomas, Alito, and Gorsuch — all have voted to hear these cases, but it takes the vote of a fourth Justice to make this happen.
Chief Justice Roberts and Justice Kavanaugh have held out.
What is Kavanaugh up to? USA Today says that, having been accused of a 1980s sexual assault during his confirmation process, he “may just be laying low.”
The “laying low” theory is supported by rumors that Kavanaugh has been telling friends and associates that he intends to do just that for a year, given the controversy that surrounded his confirmation. Perhaps USA Today has heard the same rumors.
But although Kavanaugh is probably saying this, the “laying low” for a year theory isn’t fully persuasive. First, Kavanaugh is surely intelligent enough to realize that laying low for a year isn’t going to make his confirmation any less controversial or cause those who are convinced he’s evil to have a change of heart. (It’s also not clear why Kavanaugh would care about this. He has his lifetime appointment).
Second, at this point the controversial LGBT cases he and the Chief Justice keep ducking wouldn’t be heard this Term if the Court granted certiorari. Instead, they would be heard next Term, after the year of “laying low” has expired.
It looks to me like Kavanaugh may lay low for a good while — long enough to become very comfortable doing so.
Meanwhile, we seem to be stuck with a milquetoast Supreme Court. As USA Today puts it:
The chief justice and the newest justice together have provided ballast for a court in transition. Following Kavanaugh’s replacement of retired Associate Justice Anthony Kennedy, Roberts has become the court’s swing vote, and Kavanaugh often appears to be his wingman.
“Ballast for a court in transition” is not what President Trump promised conservatives.
Ironically, during the presidential debates, Trump savaged Ted Cruz for supporting John Roberts’ nomination to the Supreme Court. The attack was unfair. Cruz had wanted Michael Luttig, for whom he clerked, to get the nomination that went to Roberts. Once Roberts was nominated, Cruz supported him, and there was no apparent reason not to. Roberts had always been a solid conservative. His decision upholding Obamacare was seven years in the future. He was not milquetoast in the interim.
By contrast, Kavanaugh had already written an opinion upholding Obamacare, and on grounds similar to the ones Roberts would later embrace, when Trump nominated him. Nor was Kavanaugh on the list of potential Supreme Court nominees Trump campaigned on.
Yet Trump nominated him anyway. As a result it looks like Trump is batting .500 on Supreme Court Justices. That’s the traditional Republican success rate, but it’s not good enough.
Perhaps we’ll see a better, more reliably conservative version of Kavanaugh as time goes on. That’s not usually how it works, however. It usually works the other way around.