Justice Kavanaugh, the new Anthony Kennedy?

It’s way too early to answer this question in the affirmative. However, it’s not a ridiculous question. Reportedly, Kavanaugh has been in the majority more often than any other Justice so far this term.

This suggests that Kavanaugh, not Chief Justice Roberts, is at the ideological center of the Court — the place where Kennedy resided after Justice O’Connor retired. It doesn’t mean that Kavanaugh is as centrist as Justice Kennedy was, but it’s a sign that President Trump did not succeed in nominating a strong conservative jurist to replace Kennedy.

Yesterday, for example, Kavanaugh voted with the four liberal Justices to allow an antitrust case against Apple to proceed. He wrote the majority opinion. The Chief Justice dissented, along with Justices Thomas, Alito, and Gorsuch. (I haven’t read the full opinions and express no view as to whether the case was correctly decided).

I’ve heard that Kavanaugh has been telling people he wants to “lay low” for a year, given his rancorous confirmation fight. If so, we may see a more aggressively conservative Kavanaugh next Term and thereafter.

The theory has some plausibility as an explanation for Kavanaugh’s reluctance to vote in favor of taking up highly controversial cases this term. That’s a viable “laying low” strategy, one that’s reasonably calculated (if indeed Kavanaugh is thinking this way) to keep the new Justice out of the harshest of spotlights.

However, it’s not a plausible explanation for Kavanaugh’s votes in cases the Court actually decides. It would be unconscionable for Kavanaugh to decide cases based on personal motives, and I don’t believe for a minute that he has done so.

So Kavanaugh’s votes are a good reflection of what he believes about the law and how he analyzes difficult issues. Although the sample is not that large, his votes, as I said, suggest that he’s less conservative than we were led to believe.

I never believed he was that strong a conservative. I thought he would be somewhere between the Chief Justice and Justices Scalia and Alito on the ideological spectrum.

Now, I fear he may be somewhere between the Chief Justice and Justice Kennedy.


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