Joe Biden is openly daring Brett Kavanaugh to do his job and throw out the new eviction moratorium issued by the Centers for Disease Control and Prevention. This is the sort of dumb client-from-hell mouth-spouting that often caused Donald Trump to lose cases in court. Biden, a lawyer and longtime Senate Judiciary Committee chairman, should know better. Kavanaugh ought to have ruled to block the moratorium when it first came before the Court, and he ought to call Biden’s bluff now.
The chief job of Supreme Court justices, is, in the words of Chief Justice John Marshall, “to say what the law is.” There are sometimes legal reasons not to do that: They may decide against reaching the core legal question in a case because they lack jurisdiction, or because nobody had standing to bring the case, for instance. As judges, this is not their only job; there are always questions of prudence and justice that go into deciding what cases to take and what remedies to order for violations of the law, which is one reason why values and judgment do matter in deciding who should sit on the Court. But at the same time, the most central virtue in a judge is the courage to say what the law is regardless of the political consequences. And that is what Kavanaugh needs to muster now.
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