Bench Memos

Law & the Courts

Contra Ben Shapiro on Judge Kavanaugh

I have no interest in favoring one outstanding Supreme Court candidate over another, so I don’t intend to say much about any of the candidates before a nominee is selected. But I also don’t like to see unfair or mistaken charges made, so I might occasionally weigh in. Such as now.

The estimable Ben Shapiro offers what is super-ambitiously titled “The Run-Down: Here’s What You Need To Know About Trump’s Top 5 Possible Nominees.” To my great surprise, he concludes that Judge Brett Kavanaugh “has the most red flags.” As it turns out, though—perhaps because he has taken on a herculean task in a very tight time frame—his “red flags” on examination lose their color.

I present here Shapiro’s full bill of particulars against Kavanaugh:

1. “Kavanaugh is, on the downside, a general believer in Chevrondeference — the notion that administrative agencies ought to be granted deference by the judicial branch.”

Surely this couldn’t be the same Kavanaugh who, in a Harvard Law Review piece (p. 2150), says that Chevron “has no basis in the Administrative Procedure Act” and “seems to flout the language of the Act”? The same Kavanaugh who calls Chevron “an atextual invention by courts” and “[i]n many ways … nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch”? The same Kavanaugh who has been credited with “cabining” the Chevron doctrine by developing the “major questions” exception?

2. “Kavanaugh reportedly does not use textualist methods nearly as much as conservatives might wish.”

“Reportedly”? Hmmm, who “reported” it? It would be good to be given at least one example of Kavanaugh’s supposed deviation from textualism.

As one lawyer tweeted, Shapiro’s charge against Kavanaugh is “news to anyone who has ever appeared before him, clerked for him, or read a single one of his opinions.”

3. “Worst, Kavanaugh upheld Obamacare in Sissel v. Department of Health and Human Servicesas well as in Seven-Sky v. Holder, in which he stated that the Obamacare penalties were actually ‘taxes.’”

Sissel presented a very adventuresome Origination Clause challenge to Obamacare. In an opinion dissenting from the D.C. Circuit’s denial of en banc rehearing of the panel’s rejection of the challenge, Kavanaugh (joined by the three other Republican appointees on the court) did indeed conclude that Obamacare complied with the Origination Clause, even as he faulted the reasoning of the panel. Does Shapiro think that Kavanaugh got it wrong? If so, how?

In his separate opinion in Seven-Sky, Kavanaugh did not “uphold” Obamacare. Rather, he explicitly dissented “as to jurisdiction” and refrained from “deciding the merits.” He concluded that the Anti-Injunction Act precluded the panel from deciding the case because Obamacare provided that the “tax penalty” for violation of the individual mandate had to “be assessed and collected in the same manner as taxes”—not because the penalty was itself a tax. At the same time, he called Obamacare’s individual mandate “unprecedented on the federal level in American history.” There is plenty of room for debating the merits of Kavanaugh’s position, but mischaracterizing it is not a good place to start.

4. “Kavanaugh seems far more likely to be a second Roberts than a second Gorsuch.”

This conclusion (I’m not sure what it means) apparently is supposed to follow from Shapiro’s previous statements, and it falls with them.

(Shapiro also claims that Third Circuit judge Thomas Hardiman “has red flags of his own.” I haven’t had time to review his claims—I have very high regard for Hardiman, whose record I reviewed carefully when he was a candidate for the Scalia vacancy—and my failure to address them should not be mistaken as acquiescing in them.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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