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Law & the Courts

Brett Kavanaugh Not Quite as ‘Evil’ as Promised

Supreme Court Associate Justice Brett M. Kavanaugh (Jim Young/Reuters)

Exactly one year ago today, Senator Cory Booker implied that failing to oppose Brett Kavanaugh’s Supreme Court nomination would be “evil.” (Booker was speaking only of Kavanaugh’s jurisprudence, as the allegations from Christine Ford had not yet become public.) Well, the recently concluded Supreme Court term gave us a chance to find out what evil looks like in action, and it turns out that Lucifer-in-a-black-robe had a voting record that could hardly be described as extreme. In fact, by some measures he was a moderate.

Kavanaugh voted with the majority 89 percent of the time, which was the highest rate of any justice, surpassing even the 85 percent achieved by Chief Justice John Roberts. Kavanaugh and Roberts formed the second-most-agreeable pair of justices (after Sotomayor and Ginsburg), voting together 92 percent of the time. Furthermore, Kavanaugh was just as likely to vote with liberals Elena Kagan and Stephen Breyer as he was with fellow Trump nominee Neil Gorsuch.

On a more sophisticated level, “Martin-Quinn” scores purport to locate each justice on a scale based on the voting coalitions that form across different Supreme Court cases. Although no assumptions about ideology are built into the scores, the familiar left-right divide still emerges. Here is how the justices rank by Martin-Quinn scores from Kavanaugh’s first term, in ascending order (essentially left to right): Sotomayor, Ginsburg, Kagan, Breyer, Kavanaugh, Roberts, Gorsuch, Alito, Thomas. Note that Kavanaugh is the median justice by this metric, which is a surprise given Roberts’ reputation as the swing vote.

To be fair, the above statistics probably overstate Kavanaugh’s moderation. Many Supreme Court cases are unanimous, and many others involve no obvious political considerations. Even the Martin-Quinn scores make no attempt to distinguish especially important or ideological cases. When we limit the analysis to 5-4 cases that split along ideological lines, Kavanaugh appears to be more of a traditional conservative, as he voted with the conservative justices in 13 out of 14 such cases. Nevertheless, Kavanaugh has hardly been an outlier or a rabble-rouser on the Court. It will be interesting to see where he fits into the conservative bloc over the long term.

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