Indelible in the hippocampus is the anger.
The rage. The red faced, snarling incomprehension from Brett, who spent decades preparing for his ascension, only to have it threatened by some woman he claims not to remember assaulting.
Brett was careful. Brett came from the right family. Took the right jobs. Made all the right friends. And wrote all the right opinions. When excessive partisanship was a liability for men seeking ascension, Brett artfully said nothing about Obamacare. When ideological purity became fashionable, Brett made sure everyone knew he would overrule That Decision.
Brett. Went. To. Yale.
But now she was here. And she wanted Brett to pay for something that men like him do not pay for.
“I love coaching more than anything I have ever done in my whole life,” Brett screamed to his inquisitors. “But thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.” (Brett still coaches.)
“Thanks to what some of you on this side of the committee unleashed,” he raged. “I may never be able to teach again.” (Brett still teaches.)
Brett let it all out. He glared at those who dared to take from him what he’d worked for — what belonged to him. And he threatened revenge. “We all know in the United States political system of the early 2000s,” Brett told them, “what goes around comes around.”
Days later, when the fury subsided to a simmer, Brett told a different tale. “I might have been too emotional at times,” Brett admitted in the Wall Street Journal. “I know that my tone was sharp, and I said a few things I should not have said.”
“Going forward,” Brett promised, “you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.”
One Supreme Court term later, Brett has a record. We now know how he behaves when liberated from having to follow precedent, and when he is free to express his unvarnished views. That record tells us something important. It tells us that, in the crucible of his entitled madness, we saw the real Brett.
“What goes around comes around” is the real Brett Kavanaugh. We know this because we know how he’s behaved on the Supreme Court.
The wrong friends
The newest member of the Supreme Court speaks loudest when they choose their friends. Seniority is currency within the court. And, while the sexiest cases aren’t always assigned to the most senior justices, the junior-most member typically spends a year or two writing fairly minor decisions until they get their feet wet.
When the court divided, Kavanaugh almost always made friends with the far right. He did so on issues where, until recently, even many members of the Supreme Court’s right flank urged moderation. Kavanaugh did not write the most radical opinions of the term, but he joined many of them. And on the most important issues, he voted like a reliable partisan.
In fairness, there were early signs that Kavanaugh stood somewhere between the Supreme Court’s nihilistic faction and the more institutionalist conservative Chief Justice John Roberts. Kavanaugh rather pointedly voted not to hear a case seeking to defund Planned Parenthood, over a vitriolic dissent by Justice Clarence Thomas. He also recoiled from Neil Gorsuch’s effort to shut down an inquiry into the Trump administration’s effort to skew the census before that inquiry even happened.
Kavanaugh also may have played a role in the court’s decision not to take up a major abortion case or a suit seeking to immunize Christian conservatives from many civil rights laws. The Supreme Court has an unusual amount of control over which cases it does and does not hear, and it’s unexpectedly shied away from a number of contentious cases this term.
Yet, when the court does take up a case, Kavanaugh’s proved to be reliably conservative. And when Roberts and Gorsuch divide on a non-criminal matter (Gorsuch’s record on criminal cases is more nuanced than his approach to civil cases, though hardly as liberal as many commentators suggest) Kavanaugh generally aligned more closely with Gorsuch than with Roberts.
Kavanaugh’s first abortion opinion as a member of the Supreme Court would have drastically limited courts’ ability to enforce the right to end a pregnancy, and it would have silently overruled a crucial portion of a recent abortion decision in the process. He joined an opinion holding that federal courts are powerless to stop partisan gerrymandering. And he also joined another, utterly bloodthirsty opinion casting a cloud of doubt over decades of Eighth Amendment law — conscripting death row inmates into the process of choosing how they will be executed in the process.
When a Muslim inmate sought the right to be comforted by an imam of his own faith — a right the state of Alabama afforded to Christians but not Muslims — Kavanaugh joined the court’s decision holding that the inmate could be executed without spiritual comfort. After that decision sparked a widespread backlash even among conservatives, the Supreme Court reversed course in a similar case. But Kavanaugh wrote separately to note states could comply with the Constitution by simply banning all spiritual advisers from execution chambers.
The state of Texas swiftly took Kavanaugh up on this invitation.
Kavanaugh’s two most revealing votes, however, came in two cases where Roberts crossed over to vote with the court’s liberal bloc — and Kavanuagh did not.
See no evil
The facts of Department of Commerce v. New York are simply astonishing.
Commerce Secretary Wilbur Ross decided to add a question to the 2020 census asking whether individuals are citizens — a question that hasn’t appeared on the census’ main form since the Jim Crow era. The Census Bureau’s own experts determined that adding a citizenship question to the 2020 census was likely to lead to a 5.1% differential decrease in self-response rates among noncitizen households — thus causing immigrant communities to receive fewer federal resources and less representation in Congress.
As a leading Republican gerrymandering expert revealed in files discovered after his death, the citizenship question “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.”
Federal law requires agencies to “set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Agencies, similarly, must “examine the relevant data and articulate a satisfactory explanation for its action.”
Yet, as Chief Justice Roberts lays out in his majority opinion in New York, the Trump administration appears to have lied to the public, lied to the lower court, and lied to the Supreme Court when it explained why it decided to add the citizenship question to the 2020 census form.
Specifically, Ross claimed that he decided to add the citizenship question because the Justice Department requested such a question in order to aid it in enforcing the Voting Rights Act. But the evidence in New York
showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
Indeed, a Commerce Department official “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA.” After these apparent efforts to convince another agency to give Commerce a pretextual reason to justify the citizenship question failed, Ross reached out to the Justice Department’s Civil Rights Division, which agreed to give Ross an (apparently fake) justification.
Trump administration officials, in other words, decided what policy they wanted — a policy, it’s worth noting, that would skew U.S. House representation to benefit Republicans — shopped around for agencies willing to give them a legitimate-sounding reason to justify that policy, and then claimed that they were implementing the policy to help with voting rights enforcement because that’s the legitimate-sounding reason they were able to find.
That was too much for a majority of the Supreme Court, which ruled that, at the very least, the Trump administration needs to offer a more plausible explanation before it can put the citizenship question on the census form. But it wasn’t anywhere near too much for Brett Kavanaugh, who joined an opinion by Justice Thomas suggesting that it doesn’t matter one bit if the government lies.
“Under ‘settled propositions’ of administrative law,” Thomas claimed, “pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake.” Rather, Thomas wrote that “the discretion afforded the Secretary is extremely broad.”
“Subject only to constitutional limitations and a handful of inapposite statutory requirements,” Thomas continued, “the Secretary is expressly authorized to ‘determine the inquiries’ on the census questionnaire and to conduct the census ‘in such form and content as he may determine.’”
So if the Commerce Secretary wants to add a question in order to benefit the Republican Party, that’s his business, not the courts’. And it certainly isn’t the job of the courts to ask if the secretary is lying.
Indeed, the opinion Kavanaugh joined even goes so far as to accuse Judge Jesse Furman, the lower court judge who struck down the citizenship question, of propping up an X-Files conspiracy theory to justify his own disdain for Trump officials. “I do not deny,” Thomas writes of Furman, “that a judge predisposed to distrust the Secretary or the administration could arrange [many of the facts of this case] on a corkboard and—with a jar of pins and a spool of string—create an eye catching conspiracy web.”
The fundamental premise of this opinion is that agency officials should be afforded an extraordinary level of deference by courts — even when those officials are almost certainly lying. Yet, while Kavanaugh was perfectly willing to afford such extraordinary deference when the Republican Party stands to benefit, he hummed a very different tune in a case called Kisor v. Wilkie.
Selective deference
Kisor asked the Supreme Court to overrule a doctrine known as “Auer deference,” which provides that courts should defer to an agency’s reasonable interpretation of its own regulations. Though Roberts joined most of Justice Elena Kagan’s opinion declining to overrule Auer, Kavanaugh wrote his own brief dissent. He also joined most of a blistering dissent by Gorsuch that laid into the very idea that courts should defer to agencies’ judgments.
If courts afford too much deference to agencies, Gorsuch claimed in a part of the opinion that Kavanaugh joined, private individuals “are left always a little unsure what the law is, at the mercy of political actors and the shifting winds of popular opinion, and without the chance for a fair hearing before a neutral judge.” In such a world, “the rule of law begins to bleed into the rule of men.”
There are, it should be noted, good reasons to retain Auer deference. The drafter of a rule, as Kagan notes in her opinion, is more likely to understand the policy underlying the rule and to interpret it consistently with that policy. Agencies also have highly specialized expertise and are more likely to understand their own regulations than generalist judges. And agencies are ultimately accountable to an elected official, while judges are not, so it’s better to place power in the hands of a body that has has “political accountability.”
But regardless of whether you agree with Kagan that Auer should be kept or with Gorsuch and Kavanaugh that Auer should be scrapped, read Gorsuch’s opinion in Kisor and try to square it with the views that both men took in the census case. Remember that opinion? The one claiming that Trump’s agencies should be afforded such extraordinary deference that courts shouldn’t intervene even when the head of the agency lies.
Indeed, when Trump’s political appointees aren’t actively trying to skew elections to benefit Republicans, both men seem to understand that those appointees sometimes behave with corrupt motives. “Executive officials are not, nor are they supposed to be, ‘wholly impartial,’” Gorsuch writes in another part of his opinion that Kavanaugh joined. “They have their own interests, their own constituencies, and their own policy goals—and when interpreting a regulation, they may choose to ‘press the case for the side [they] represen[t]’ instead of adopting the fairest and best reading.”
Yes! It is indeed true that agency officials may “press the case for the side they represent.” A Republican cabinet secretary may, for example, intentionally try to skew census results in a way that benefits the Republican Party.
The end of liberalism
The Roberts court has long been a place where fair elections go to die. Just look at its recent decision enabling gerrymandering. Or its many cuts at the Voting Rights Act. Or their happy-go-lucky response to wealthy donors seeking to buy elections.
Since Trump began reshaping the Supreme Court, however, there are now disturbing signs that the new majority isn’t just anti-democratic, it is also illiberal.
To explain the distinction, a democratic nation is one where the people select their leaders, typically through elections. A liberal nation commits to free debate, open discourse, and the rule of law.
In a democratic nation, an elected legislature writes the laws. In a liberal nation, those laws apply equally to members of the ruling party and the opposition party alike. In a liberal democracy, all parties have equal access to the press and to public discourse.
Last Supreme Court term, admittedly before Kavanaugh joined its ranks, the court struck down a California law requiring anti-abortion centers that masquerade as reproductive health providers to make disclosures that could reveal that they are, in fact, sham clinics. That aspect of National Institute of Family and Life Advocates (NIFLA) v. Becerra was a defensible application of the First Amendment doctrines barring compelled speech, but the court also reaffirmed a past decision upholding “informed consent” laws, which require abortion providers to read an anti-abortion script to their patients.
NIFLA held, in other words, that abortion opponents have greater free speech rights than abortion providers. That’s a fundamentally illiberal decision.
Similarly, the Supreme Court’s decision upholding Trump’s Muslim ban, as well as the decision holding that a Muslim inmate could not have spiritual counsel during his final moments, raise serious questions about the court’s commitment to equal treatment of people of all faiths. Also, try to square those decisions with Burwell v. Hobby Lobby, which held that a business owned by conservative Christians may deny certain forms of health coverage to their employees if the owners object to that coverage on religious grounds.
If the Supreme Court does take a profoundly illiberal turn, Kavanaugh’s short record on that court suggests that he’ll enthusiastically join in. There are liberals who believe that courts should be more skeptical of agency power, and there are liberals who believe that doctrines like Auer are appropriate. But there is no theory consistent with the rule of law which says that courts must treat federal agencies with skepticism except when those agencies lie in order to benefit the Republican party.
Department of Commerce v. New York was Brett’s chance to show that he could be “even-keeled, open-minded, independent and dedicated to the Constitution and the public good,” even when it meant going against the interests of his party. It was his chance to show that he’s not in his current job for partisan revenge, and that his outburst at his confirmation hearing really was just a self-contained flare of rage.
But Brett did not choose open-mindedness and independence in New York. He chose what goes around comes around.
