Penn Law faculty perspectives on SCOTUS nomination
On July 10, Judge Brett Kavanaugh was nominated as President Trump’s second Supreme Court justice. Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit and Yale Law School graduate who previously served in both Bush administrations, has the potential to shape the direction of the court for decades to come. Penn Law faculty provide their analyses of the nomination.
In nominating Judge Brett Kavanaugh, President Trump has selected a nominee for the Supreme Court with considerable Washington, D.C., legal experience, including extensive judicial experience in administrative law through his service on the D.C. Circuit Court of Appeals. As with Justices Gorsuch and Thomas on the Court, Judge Kavanaugh has expressed strong concerns about what is known as the Chevron doctrine, one of the most prominent Supreme Court precedents related to administrative law. That doctrine calls for courts to defer to government agencies’ reasonable understanding of ambiguous statutory provisions. Both scholars and judges often see the deference to government called for by this doctrine as pivotal to the extent and nature of government regulation of business.
Judge Kavanaugh has worried that, by relying on the Chevron doctrine, judges can too easily defer to government regulators. If Kavanaugh is confirmed, the Court will have another Chevron skeptic on its bench, bringing the future nature or viability of that doctrine into still more question.
If Judge Kavanaugh is confirmed to the Supreme Court, he will shape important issues in health care in the near future, ranging from reproductive rights to the ACA. One issue that has been debated since Justice Kennedy’s announcement is whether the Court might overturn Roe v. Wade and end access to abortion altogether. Although such a result is possible without Kennedy’s vote to preserve it, what is more likely is continued covert erosion of abortion access by allowing states to pass laws with strict limits on abortion timing, procedures, and providers. The current legal test is that state laws that pose an “undue burden” on women are unconstitutional. In 2016, the Supreme Court struck down a Texas law under this standard, with Kennedy as the deciding vote. Kavanaugh has nodded to this standard in his decisions, but it is likely that much less would rise to the level of an undue burden for the newly-constituted court. This would allow extremely restrictive state laws to stand that in effect undermine the rights protected under Roe v. Wade, even if it is not officially overturned. The Court will could also hear cases in the near future that will affect public funding for Planned Parenthood and access to contraceptive coverage.
A second pending case is in an odd challenge to the ACA in Texas that argues that the individual mandate is now unconstitutional after Congress eliminated the tax penalty for noncompliance in the tax bill. The Supreme Court upheld the mandate as a tax, but the litigants argue that without the penalty, the mandate is no longer a tax and, further, if the mandate is unconstitutional, the whole law must go. Even though legal experts widely agreed that this suit is baseless, what will happen in the courts is more of a wild card now. Judge Kavanaugh, in a dissent when the DC Circuit upheld the individual mandate, opined that the mandate is a tax. His dissent was procedural, not substantive, so how he might respond to this new challenge, if it makes it way to the Supreme Court, is anyone’s guess.
Brett Kavanaugh will make an outstanding Supreme Court Justice. His decisions as a D.C. Circuit judge show a great respect for the importance that structural principles, such as the separation of powers, play in protecting individual liberty. In fact, the Supreme Court has frequently adopted his reasoning when reviewing those decisions for itself. On the bench, he has exhibited the type of adherence to principle, integrity, open-mindedness, and respect for precedent that one hopes to see in our nation’s judges.
To my eyes, the most striking thing about the Kavanagh nomination is that he, like Justice Gorsuch, is a former clerk to Justice Kennedy. (So too, for that matter, is Judge Kethledge, another finalist.)
That’s striking because of the contrast with Justice Scalia. Kennedy and Scalia served nearly overlapping 30-year careers on the Court. During that time, Scalia was the undisputed giant of conservative legal intelligentsia. Justice Thomas has a great many admirers too. But conservatives long viewed Kennedy as an embarrassment. Although they won his votes far more often than not, many conservative legal elites openly disdained Kennedy as a lightweight at best and a fraud or traitor at worst.
So there is modest irony in Kennedy landing two former clerks on the Court before Scalia lands a first. Irony aside, it raises the possibility—and I wouldn’t yet say it’s much more than that—that the Court’s constitutional jurisprudence will develop in a direction that owes more to Kennedy than to Scalia and Thomas.
Many people would find that statement puzzling if only because it suggests that Kennedy had something fairly called a constitutional theory. Scalia, of course, had a theory—some form of originalism. But the conventional wisdom is that Kennedy had only his gut, or his nose, or his personal values, or whatever.
I have argued that that common view of Kennedy is mistaken. I think that Kennedy does have a constitutional vision, or a “theory of constitutional law,” and that it’s plainly different from Scalia’s notwithstanding that their different approaches often took them to the same constitutional bottom line.
Scalia was an originalist, of a sort. Kennedy is a living constitutionalist, of a sort (though he wouldn’t use that term). Scalia thought that, in a deep way, only one thing matters, constitutionally speaking: what the text means or meant. Kennedy thinks that many things matter; he’s a pluralist. Scalia was a champion of rules; Kennedy is a devotee of principles.
In each of these respects, in my judgment, Kennedy is pretty much right, and Scalia pretty clearly wrong. In my contrarian view, Kennedy has a better constitutional theory than Scalia ever did. It is more faithful to our experience, more honest, and more just. It is even more philosophically sophisticated.
To be clear: I disagreed with Justice Kennedy plenty. I expect I’ll often disagree with Justice Kavanagh too. This will be a very conservative Court. But if you’re worried about the state of the country and thirsting for any grounds for optimism, the prospect that this conservative Court may tilt more toward Kennedy than toward Scalia is probably the most you could hope for.
When Richard Nixon nominated Warren Burger and Harry Blackmun to the Supreme Court, those nominees could not have known that five years later they would be faced with Nixon’s claims to be above the law. In United States v. Nixon, the Watergate tapes case, they rejected Nixon’s pretensions and put integrity above loyalty to their patron.
By contrast, today, it is difficult not to see that if he is confirmed, Judge Kavanaugh will confront claims of immunity and impunity put forth by Mr. Trump, his family and his associates.
In his remarks last night, Judge Kavanaugh quoted his mother’s “trademark line”: “Use your common sense. What rings true? What rings false?” And he closed by pledging to ”preserve the Constitution of the United States and the American rule of law.”
These are fine words. But Judge Kavanaugh has also written in a law review article that Congress should enact a statute immunizing sitting president from civil and criminal responsibility. It is incumbent on Senators choosing whether or not to confirm Judge Kavanaugh to determine what his professed ideals of common sense and the rule of law will mean when he predictably confronts presidential mendacity and arguments that the man who appointed him and his entourage should not be troubled by legal limits.
Brett Kavanaugh is a nominee very much in the mold of Neil Gorsuch (with whom, amazingly, he clerked for Justice Kennedy): highly credentialed, young, and conservative. If confirmed, he will solidify a conservative majority on the court for decades to come. John Roberts will become the median Justice, whose views will control in the close cases.
President Trump’s nomination of staunchly conservative Judge Brett Kavanaugh solidifies the Supreme Court majority’s rightward agenda to deny women’s reproductive rights, workers’ rights, and voting rights and threatens to move the Court backward on LGBTQ equality, affirmative action, and the death penalty, among other social justice issues. His potential appointment is also disgraceful in light of the Republicans’ refusal to consider President Obama’s nominee, Judge Merrick Garland, to fill Justice Antonin Scalia’s seat, as well as its conflict with the pending Mueller investigation – especially when Judge Kavanaugh has argued that a sitting president should be exempted from criminal prosecution and investigation.
These ethical concerns alone are reason for Congress to block Judge Kavanaugh’s appointment, regardless of party or ideological affiliations. If that fails and Judge Kavanaugh is confirmed, movements organized by ordinary people to maintain our hard-won constitutional and civil rights and to advance more racial, gender, and economic justice will become even more critical.