Bench Memos

Law & the Courts

Some Takeaways from Justice Kavanaugh’s First Term

Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)

The end of Justice Kavanaugh’s first term on the Supreme Court is a fitting time to make some observations. This has not been a year marked by many ideologically divisive landmark decisions, but the latest spate of decisions tells us a lot more than we knew a few months ago. Recall speculation during the early spring that Kavanaugh and Chief Justice Roberts, who at the time had disagreed in only one reported decision, were forming a duo that was going to block a conservative majority on the Court. In fact, Kavanaugh has been a solid member of a new four-justice conservative bloc that is often (though unfortunately not always) joined by the Chief on key decisions advancing religious liberty, reestablishing federalism and separation of powers principles, and protecting the right to private property.

We have now seen enough to dispel a good deal of prejudgment on the junior justice. We can start with some statistics on the alignments of the justices. Among the merits decisions issued this term, Kavanaugh has disagreed with Roberts on at least part of the Court’s judgment in five cases, including Thursday’s lamentable decision on the census in Department of Commerce v. New York. That number increases to six if we add Kisor v. Wilke, where the two justices agreed with each other on the Court’s judgment but disagreed on that case’s key question of whether to overrule the Auer doctrine. (This tally excludes still another disagreement, Lorenzo v. Securities and Exchange Commission, where Kavanaugh did not participate because he had been part of the panel hearing the case in the D.C. Circuit, at which stage he dissented. A 6–2 Supreme Court affirmed the D.C. Circuit, and the two dissenters, Thomas and Gorsuch, reached the same conclusion Kavanaugh had in his earlier dissent.)

Whatever metric is used, Kavanaugh was more likely to disagree with Roberts on merits decisions than with the trio of Thomas, Alito, and Gorsuch, with whom he broke in only four cases that received relatively little public attention. For that matter, Kavanaugh, Thomas, and Alito each sided with one or more of the four liberal justices (at least on the judgment) without being joined by any conservatives on only one occasion.

Kavanaugh has disagreed with Alito in six decided cases, which barely surpasses the number of his disagreements with Roberts. All six of the disagreements with Alito occurred in lower profile cases. Moreover, the Court’s record consists of not only merits decisions, but also its additional orders regarding such procedural matters as stays and denials of certiorari. Upon examination of public records of the latter, we find three additional occasions when Kavanaugh and Alito, along with Thomas and/or Gorsuch, disagreed with Roberts:

  • Trump v. East Bay Sanctuary Covenant (Thomas, Alito, Gorsuch, and Kavanaugh dissenting from the Court’s refusal to lift a lower court injunction prohibiting the Trump administration from immediately reinstating its policy of denying asylum to migrants who illegally cross the Mexican border).
  • June Medical Services v. Gee (Thomas, Alito, Gorsuch, and Kavanaugh dissenting from the grant of stay on a challenge to Louisiana’s admitting-privileges requirement for doctors who perform abortions).
  • Dahne v. Richey (Thomas, Alito, and Kavanaugh dissenting from the denial of certiorari where the Ninth Circuit required a prison to entertain a prisoner’s grievance when it used language containing a veiled threat).

There were also two more occasions when Kavanaugh joined Alito and at least one other conservative in opinions that Roberts did not join:

  • Kennedy v. Bremerton School District (Thomas, Alito, Gorsuch, and Kavanaugh concurring in the denial of certiorari in a case involving a public high school football coach who claimed he was fired for kneeling on the field to pray after games, but asserting that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future”).
  • Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation (Alito, Gorsuch, and Kavanaugh concurring in the denial of certiorari for procedural reasons, but noting in an opinion by Kavanaugh that New Jersey’s prohibition of historic preservation funds to religious buildings simply because they are religious “is in serious tension with this Court’s religious equality precedents”).

There were no occasions when Roberts joined Alito or the other conservative justices on opinions relating to orders without Kavanaugh also joining them. Of course, dispositions on procedural matters do not necessarily lend themselves to predictions of how justices would ultimately rule on the merits, but Kavanaugh has given encouraging signals as to how he would rule when the Court does have the opportunity to consider the above issues on the merits. Additionally, the overall record from publicly available data suggests that the justice to whom Kavanaugh has been closest ideologically during this term is Alito.

Returning to merits decisions, note how Kavanaugh voted in other key cases this term:

  • American Legion v. American Humanist Association, joining a majority that rejected a challenge to the Bladensburg cross and finally recognized the inapplicability, at least in this context, of the Court’s long-withering Lemon test.
  • Rucho v. Common Cause, joining a 5–4 majority that held partisan gerrymandering claims present political questions beyond the reach of federal courts.
  • Knick v. Township of Scott, joining a 5–4 majority that overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, a 1985 precedent that had made it harder to seek just compensation for government takings by first requiring claimants to seek compensation in state court before doing so in federal court.
  • Franchise Tax Board of California v. Hyatt, joining a 5–4 majority that defended the principle of sovereign immunity and held that states are immune from suit in the courts of other states, overruling Nevada v. Hall (1979).
  • Box v. Planned Parenthood, joining a majority that reversed the Seventh Circuit’s invalidation of an Indiana law regarding the disposal of fetal remains by abortion providers.

Because of Roberts’ votes in the Kisor and Department of Commerce cases, which may have the unfortunate effect of confusing and even politicizing administrative law, Kavanaugh’s commendable votes in those cases fell just short of giving the Court a majority. But there is much to praise in what the Court was able to accomplish this term with its newest justice, whose record demonstrates that he still adheres to the principles of originalism and textualism he professed before joining the Court.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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