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Monday, February 26, 2024 | Back issues
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Kavanaugh makes a play for the high court’s swing vote

As the conservative majority takes aim at reshaping American law, experts ask if the second of three Trump administration appointees will be an enabling or limiting vote.

WASHINGTON (CN) — Justice Brett Kavanaugh is positioning himself to hold the most important vote on the Supreme Court. 

The conservatives have a supermajority on the high court but only a bare majority signed onto the court’s most highly anticipated case of the term, striking down the federal right to abortion. In upholding Mississippi’s law, the court had two options: throw out a 50-year-old precedent that gave people across the country reproductive autonomy or keep the state’s 15-week ban without completely overturning Roe v. Wade. Just five justices voted to take the most extreme route in the case. 

Chief Justice John Roberts concurred in judgment in the case but did not sign onto the majority opinion. If Roberts had gotten his way, the court would have taken the less radical route and only upheld Mississippi's law. 

“I would take a more measured course,” the Bush appointee wrote. 

The leading assumption by court watchers is that Roberts’ opinion was aimed at persuading one justice in particular to take a more moderate approach. 

“Wisdom from the outside is that Kavanaugh was the was the one target of the chief’s concurrence,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “If the chief could have picked up Justice Kavanaugh for that opinion, then Roe is still the law of the land today.” 

Experts consider Kavanaugh to be very conservative but, on the ultra-conservative wing of the high court, he is more moderate than his other colleagues. In two of the court’s biggest decisions of this term, the Trump-appointed justice distinguished his views from the conservative majority in concurring opinions where he seems to set boundaries on where he will and won’t vote with his conservative colleagues. 

When the court struck down New York’s concealed-carry restrictions and created a whole new structure under which Second Amendment cases can be evaluated under, Kavanaugh — joined by Roberts — wrote separately to underscore the limits of the court’s decision. 

The majority’s adoption of a new textual framework for Second Amendment cases will likely invite more litigation on this issue, but experts say Kavanaugh could be laying boundaries for what regulations he’ll allow in his concurrence. 

Kavanaugh specified that the court’s ruling in the New York case did not prevent states from enacting licensing requirements for carrying a handgun; it only struck down a discretionary regime used by six states. He continued to say that the Second Amendment allows for gun regulations, quoting Justice Antonin Scalia’s opinion in Heller

Kavanaugh appears to take the same approach in his concurrence in the court’s decision to overrule Roe v. Wade. He tams down on the extreme nature of the decision by repeatedly emphasizing that the court’s ruling just allows the issue to be turned over to the states. 

“To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States,” Kavanaugh wrote. 

But ultimately Kavanaugh still voted with the majority on these cases so the question experts are asking now is if he’ll continue to do so or if these concurrences represent a limit for him. 

“Exactly how far to the right or towards the center is Kavanaugh? We're going to learn as we go along,” Lawrence said. “He tends to write these opinions that demonstrate that this was a hard thing for him to reach. This was difficult. There are issues on both sides, but he still voted with the majority in Dobbs and he still voted with the majority in the New York gun case.” 

Experts consider Kavanaugh to be closely aligned with Roberts’ position on many issues, but, as the Mississippi case demonstrates, that is not always the case. Since Kavanaugh is still relatively early in his tenure compared to Roberts, experts are still trying to nail down exactly where he falls along the spectrum of the court’s ideological leanings. 

“I think that both Kavanaugh and the Chief Justice are both much more conservative than people give them credit for but not total ideologues like Alito or Thomas,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone interview. “So I think that those two votes are in play.” 

As court watchers digest final rulings from this term, they say the justices will have to make a choice on whether to subscribe to the originalist rulings from the court’s majority or denounce them. 

“At some point, each justice needs to say plainly that if that's what originalism means, either count me in or count me out of that form of originalism,” said Richard Bernstein, an appellate lawyer who filed an amici brief before the court in a challenge to New York’s concealed carry regulations. “The right answer is count me out because the very practical founding generation would never have formed a system where current consequences don't give the legislature and majority rule an important measure of discretion on critical issues."

Follow @KelseyReichmann
Categories / Courts, Law, National, Politics

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