PREDICTING COURT WITH KAVANAUGH
By PAUL FABRIZIO
As the U.S. Senate examines and then debates the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court, there is much discussion of how he may vote on various issues if he were to be on the Court. Admittedly, no one knows the future. However, Brett Kavanaugh’s writings, rulings, and speeches have provided a pretty good framework to look at various issues.
I have in front of me a picture from the Politico website of a woman representing the National Women’s Law Center. She is standing in front of the U.S. Supreme Court building and holding a sign. It reads “KAVA-NAH.” The reality is that most Americans who look at Kavanaugh’s work realize what sort of justice he will be. The nominee of President Trump is a conservative. He is more conservative than the justice he replaces, Anthony Kennedy, and is very pleasing to the President and his political and ideological supporters. The woman in the picture is expressing her and her organization’s opinion that the judge should be turned down by the U.S. Senate because of his views.
What the last seven weeks of scrutiny about Judge Kavanaugh has revealed is that he is not a bomb throwing jurist who writes wild opinions but is simply a scholar of the law who takes cautious legal steps, uses toned down rhetoric, and is open to arguments from various sides. Yet the sharp mind of his is still a believer in conservative principles and leans heavily on precedent.
Therefore, I think that we can expect Justice Kavanaugh to craft decisions that could eliminate some abortions and protect the religious liberties of believers. It is possible that he would work for more religious expression in public forums and schools, and rule in favor of those whose religious beliefs put them at odds with those supporters of LBGTQ rights. His judicial track record gives credence to these conservative positions. But these statements are not a 100 percent certainty. He has been a cautious judge who has worked incrementally at the law, not looking for sweeping changes but rather focusing on the facts of the case in front of him.
To expect the new Justice, if he is confirmed, to immediately join with four of his conservative judicial colleagues and throw out Roe v. Wade as soon as the opportunity presents itself is to misread how he has approached his current job. Knowing that jettisoning Roe could free up some states to eliminate protections for the unborn while other states would eliminate abortion, Kavanaugh would be a justice who seeks other alternatives. Rather than creating political upheaval that might come from abolishing Roe, Kavanaugh might be supportive of more restrictions on abortion and work to continue making Roe essentially meaningless in legal jurisprudence.
Using another Supreme Court abortion case, Planned Parenthood v. Casey, the “undue burden” standard for regulating abortions would be the linchpin that settles abortion cases. This standard is not as well-known as Roe v. Wade is, and emphasizing it rather than rejecting the widely famous Roe case could accomplish much the same thing as abortion opponents want but without the political upheaval.
Brett Kavanaugh is a judicial craftsman working with a sharp knife rather than a pickaxe. Conservatives will get their man on the Supreme Court most likely by October but they won’t get all their wants from the Court anytime soon. This cautious man will slowly work within the Court to achieve his conservative principles over a long period of time.
Dr. Paul Fabrizio is Professor of Political Science at McMurry University.