Bench Memos

Law & the Courts

Ruth Marcus on How to Lobby Justice Kavanaugh

In the Washington Post, Ruth Marcus offers very mixed criticism of the abortion activists who marched on Justice Kavanaugh’s home last week “to protest his vote allowing the Texas abortion law to take effect.”

On the one hand, Marcus says that the protesters “were within their rights” (that’s far from clear) and that she is “aggrieved by Kavanaugh’s vote, too.” (Never mind that his vote against emergency relief on procedural grounds was clearly correct.) She even implausibly compares their protest at his home to the annual March for Life on Constitution Avenue.

On the other hand, Marcus acknowledges that it’s “intimidating, even terrifying, to have people turn up at your home”—a “kind of bullying [that] goes too far.” Plus, in what Marcus seems to regard as the decisive factor, “[i]t’s also, in the case of Kavanaugh and the court, apt to be counterproductive,” especially regarding the pending Mississippi abortion case.

Much like law professor Noah Feldman’s pitch to Kavanaugh to “become the new Kennedy,” Marcus presents Kavanaugh as someone who, above all, “wants to be liked and admired,” who wants to “win plaudits from those [in the legal establishment] whose acceptance he still craves.”

What a demeaning depiction. But it gets worse. Marcus also posits that Kavanaugh might “want[] to avoid deciding the Mississippi case in a way that [she thinks] would likely hurt Republicans in the midterm elections a few months later.”

I’ll repeat basically what I said in response to Feldman’s plea: I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Roe v. Wade and Planned Parenthood v. Casey and that he will strive in Dobbs v. Jackson Women’s Health Organization, just as in other cases, to do his constitutional duty to rule based on the law, not to feed his ego or do political favors.

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