Last September, 20 million people watched a combative Brett Kavanaugh defend himself and his judicial record during a contentious week of confirmation hearings. The Senate ultimately confirmed Kavanaugh to the Supreme Court in a 50-48 vote, largely split down party lines.
With Kavanaugh’s second term set to begin October 1, we take a look at his first year on the bench.
By tradition, new Supreme Court Justices are assigned less-than-blockbuster cases in which to write their first opinions. The Chief Justice gave Kavanaugh Henry Schein Inc. v. Archer & White Sales Inc. a little more than one month into his tenure. In a unanimous 9-0 opinion, Kavanaugh wrote that the “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act and Supreme Court precedent. The opinion was just eight pages in length.
Immediate Impact on the Court
TIME.com’s Tessa Berenson points out that Kavanaugh cast the decisive vote in eight different 5-4 rulings, split down traditional ideological lines,
…including cases related to immigrant detention, the death penalty and sovereign immunity. In one of the most hotly anticipated cases of the term, he and the other conservatives decided that partisan gerrymandering of legislative districts isn’t reviewable by federal courts. And over the coming years, Kavanaugh will wield enormous power as the new, more conservative court takes up pivotal subjects like environmental regulations, guns and religious liberty.
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Kavanaugh … joined conservatives in some key 5-4 cases…. He adopted an expansive interpretation of a mandatory immigration detention statute that will allow the Trump administration to arrest and detain immigrants without bond hearings years after they have completed criminal sentences. He also voted with the conservative bloc in ruling that Alabama could execute a Muslim prisoner without the man’s imam present as requested, and to clear the way for the execution of a Missouri man who claimed lethal injection would cause him terrible pain due to a medical condition.
Tessa Berenson, Inside Brett Kavanaugh’s First Term on the Supreme Court, Time.com, June 28, 2019, available at https://time.com/longform/brett-kavanaugh-supreme-court-first-term/.
Kavanaugh did surprise a few Court watchers last term, joining the liberal bloc (Ginsburg, Sotomayor, Kagan, and Alito) in allowing an antitrust case to proceed against electronic manufacturer Apple, Inc. He joined the same quartet to preserve the ability of both the federal and state governments to prosecute a person for the same crime in Gamble v. United States. In his most prominent Supreme Court writing to date, Kavanaugh authored the opinion in Flowers v. Mississippi,
in which the [C]ourt reversed the conviction of a black man on death row who had been tried six times for the same crime—each time by the same prosecutor, who had booted a total of 41 of 42 prospective black jurors from the jury pool before finally securing a death sentence. “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” Kavanaugh wrote for a 7-2 majority.
Stephanie Mencimer, Kavanaugh’s First Term: A Reliable Conservative Vote (With a Few Surprises), July 5, 2019, available at https://www.motherjones.com/politics/2019/07/kavanaughs-first-term-a-reliable-conservative-vote-with-a-few-surprises/.
Kavanaugh was a mostly a solid member of the Court’s conservative voting bloc (Roberts, Alito, Gorsuch, and Thomas). He appears more conservative than his predecessor Anthony Kennedy, a fellow-Republican appointee. Justice Kennedy was a frequent swing voter who played a significant role in landmark LGBT- and abortion-rights cases.
Kavanaugh, on the other hand, voted last year in favor of allowing a 40-foot cross to remain on public space and removing legal obstacles which otherwise prohibit police officers from arresting people who insult them. His record in the U.S. Court of Appeals for the District of Columbia Circuit makes clear that he is an advocate of advancing religious liberty and protecting private property rights.
The Court has already filled more than half its docket for the new term. Justice Kavanaugh will vote and/or write opinions on more hot-button issues this term, including Second Amendment gun laws, abortion cases, the Affordable Care Act, and “Dreamer” legislation which protects undocumented immigrants brought to the U.S. as children. Tessa Berenson, speculating on the prospect of an abortion case reaching the Court this term, writes:
[A] woman’s right to an abortion … is coming to the Supreme Court, perhaps sooner than the justices would like. A flurry of states passed anti-abortion laws in 2019. At least nine have passed bills that would ban abortions early in pregnancy. In May, Alabama passed the most restrictive abortion law in the country, which would criminalize abortion with no exceptions for rape or incest and punish doctors who provide abortions with lengthy prison sentences. Louisiana passed laws requiring abortion-performing doctors to have admitting privileges at local hospitals, which in practice would drastically decrease the amount of providers in the state.
Berenson, Inside Brett Kavanaugh’s First Term.