I fear that Justice Kavanaugh is on his way to becoming another Chief Justice Roberts, but without the years of quality conservative jurisprudence Roberts produced before he “grew in office” into his current, more moderate incarnation. Kavanaugh appears to have been almost fully “grown” before he took office.
Today, Kavanaugh joined Roberts and the Court’s three liberals in a ruling that keeps in place the federal eviction moratorium. Kavanaugh voted to keep the moratorium in place even as he agreed that the U.S. Centers for Disease Control and Prevention (CDC) overstepped its authority in imposing it.
John Sexton provides the background of the case:
Originally the moratorium was put in place by Congress last year. That moratorium wasn’t renewed so last August President Trump asked the HHS Secretary to see what he could do. In September the CDC issued its own moratorium which was set to expire at the end of the year. Congress then got involved again and passed a one month extension which would last until the end of January. Then the CDC extended it again until the end of March and then again until the end of June. Last week the CDC extended the moratorium again for an additional month, saying it would be the final extension.
Meanwhile lawsuits had been brought to end the moratorium and over the past several months three different federal judges have ruled that the CDC has no authority to order an eviction moratorium. The first was a judge in Texas back in February. Then in March a judge Ohio said the same thing. Finally in May a judge in Washington, DC reached the following conclusion: “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
Kavanaugh said he agrees with that conclusion. However, he voted not to lift the illegal moratorium because the CDC says it will end the ban in a few weeks. Kavanaugh explained that the extra weeks will “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”
But it’s not the Supreme Court’s job to promote the orderly distribution of federal funds pursuant to an order the government has no authority to issue. I agree with Sexton:
Either the CDC has the authority to create and extend this moratorium or it does not. If Kavanaugh agrees it does not then he should have voted with the other four Justices who also felt likewise and that would be the end of it. Instead he’s allowing an extension to remain in place which he should never have been issued in the first place.
That’s the motivated reasoning you’d expect from a liberal judge who is looking at the preferred outcome rather than the law. And what happens if the CDC reverses course and issues another two month extension next week? Will Kavanaugh suddenly switch sides and if so on what basis?
I hope I’m wrong, but Brett Kavanaugh’s selection is starting to look like another botched Republican Supreme Court nomination.