Supreme Court

SCOTUS Shortlister Brett Kavanaugh on Obamacare and Judicial Restraint

Reviewing the record of a possible replacement for Justice Anthony Kennedy.



Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit is reportedly among the handful of finalists under consideration by President Donald Trump to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court.

Kavanaugh, 53, attended Yale Law School and clerked for Justice Kennedy at SCOTUS. His record includes stints as associate counsel in the office of Independent Counsel Ken Starr as well as numerous positions in the George W. Bush administration, including staff secretary to the president and senior associate counsel to the president. Bush appointed him to the D.C. Circuit in 2006.

What sort of Supreme Court justice might Kavanaugh turn out to be if he gets the nomination and is successfully confirmed by the Senate? His 2011 dissent in the case of Seven-Sky v. Holder offers some potentially significant clues.

At issue was the constitutionality of the Patient Protection and Affordable Care Act, also known as Obamacare. Specifically, the case asked whether Obamacare's individual mandate requiring every American to have health insurance was a legitimate exercise of Congress' power to regulate interstate commerce. It was one of several constitutional challenges to Obamacare then working their way towards the Supreme Court.

Seven-Sky was a victory for the Obama administration. A divided three-judge panel upheld the mandate's constitutionality on Commerce Clause grounds. Judge Kavanaugh dissented, though not because he necessarily disagreed with the majority's Commerce Clause analysis. Rather, Kavanaugh dissented because he thought the federal courts had no business hearing the case in the first place.

"For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions," Kavanaugh wrote. "By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions."

In Kavanaugh's view, the D.C. Circuit should have been guided by the Anti-Injunction Act, an 1867 law that says, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." In other words, a tax cannot be challenged until it has been assessed and paid. And in Kavanaugh's view, Obamacare's individual mandate deserved to be counted as a tax, even though the law's authors called it a "penalty." "The Anti- Injunction Act precludes us from deciding this case at this time," he wrote.

Kavanaugh then pivoted to a broader discussion of the judiciary's role in this high-stakes constitutional showdown. The courts should be "cautious," he wrote, "about prematurely or unnecessarily rejecting the Government's Commerce Clause argument." That is because "the elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care," which he described as "vital policy objectives." He added: "This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it."

If the idea of the federal courts being "wary" of "upending" Obamacare because the law was enacted by the "elected Branches" after "vigorous national debate" sounds familiar, that is because it is so similar to the 2012 argument made by Chief Justice John Roberts when he upheld Obamacare's constitutionality.

"The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution," Roberts wrote in National Federation of Independent Business v. Sebelius. "Granting the Act the full measure of deference owed to federal statutes, it can so be read." He concluded: "It is not our job to protect the people from the consequences of their political choices."

Many observers have suggested that President Trump will try to replace Justice Kennedy with a jurist "in the mold" of Antonin Scalia, or perhaps of Scalia's successor, Neil Gorsuch. If Trump nominates Brett Kavanaugh to the Supreme Court, he may well end up with a jurist in the mold of John Roberts.


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  1. More of the same, always the same, more of the same ,ain’t it shame, probably insane, more of the same.

  2. I still have a HUGE beef with courts deciding that a tax — that was sold as NOT being a tax for years by all involved — really IS one for legal purposes.

    In the end, the electorate was defrauded, wholesale, by it.

    This is not “Well, he said mean things in the campaign”. These were the talking points during the very closed and secretive negotiations and shouted out, everywhere, by the advocates. Why should they get away with lying?

    1. This is not “Well, he said mean things in the campaign”. These were the talking points during the very closed and secretive negotiations and shouted out, everywhere, by the advocates. Why should they get away with lying?

      This is an uneducated person clumsily attempting to construct an argument.

      1. Your post is?

        Yeah, Artie, we know.

        Now go back to hitting a tree with your head and eating crayons.

      2. You can’t even comprehend what he’s saying Arty. Your cattempts at cognition are laughable.

        Learn to obey.

    2. Are you mad that people have access to healthcare or just that a Democrat achieved something?

      1. They always had access to health care, hate to break it to you.

        I am tired of politicians lying about what they’re doing and courts playing along.

        Obama said it was not a tax. Emphatically and repeatedly. SCOTUS should’ve ruled based on how he sold the policy. Period.

        1. So I’m just trying to fill this form out for your place in hell. I’m gonna mark down Democrats did something first, sound good?

          1. And people wonder why some people call Progressivism a religion…

          2. So I’m just trying to fill this form out for your place in hell.

            I love seeing people who profess to hate religion condemn others to Hell.

            BTW, Hell should be capitalized, as a heads up.

            I’m gonna mark down Democrats did something first, sound good?

            You misspelled “Tony cannot read”.

            But we expect little better from you, son.

            1. Y’all should be nicer to Tony. The poor dear is so fucking stupid he doesn’t even realize that the number of uninsured in 2016 was still 32million.

              And then he has to come here and defend that piece of shit law to all of us. Poor guy.

              1. Be nice to Tony.

          3. You’re the one going to hell you palsied buggerer of schoolboys. As is anyone who supported Obamacare.

          4. Taxes must originate in the House, not the Senate. So even as a tax it’s invalid.

            1. When corrupt politicians and judges want to violate the constitution, be sure that there are rows and rows of useful idiots to protect them.

        2. And the Constitution does not give Congress unlimited taxing powers. It allows:
          (1) Indirect taxes, such as customs and excise taxes.
          (2) Direct taxes if apportioned to the states according to their population, and the only way this has ever worked was a head tax.
          (3) An income tax as allowed by the 16th Amendment. The mandate penalty could have been structured as an income tax (e.g., a rate increase and an offsetting tax credit for buying compliant insurance), but the Democrats running Congress did not want to explicitly break Obama’s pledge to not increase taxes.

          It wasn’t #3, because Congress specifically wrote it to not be an income tax. It certainly wasn’t #2. So that lying bastard Roberts proclaimed it was #1, even though indirect taxes have always been taxes on _something_. _material_. That is, he has established precedent that Congress now has unlimited taxing powers, because he changed the meaning of “indirect tax” to mean any tax on anything or _nothing_ that doesn’t fit under the 16th Amendment.

          1. And how stupid is the Republican establishment? With Obamacare so unpopular that Obama delayed implementation a couple of years to put it after the 2012 election, and with Obama’s lawyers arguing in court that Obama had broken his “no new taxes” promise, the Republicans neutralized this issue by nominating the only other American politician that had ever created a program like Obamacare! They’re that stupid.

      2. Tony you dumb cunt, Obamacare destroyed healthcare for millions of families. We should harvest the organs of traitors, such as yourself, as repertory kind for what you have done.

        1. Elias,

          No, Republicans choosing to not fix it has ruined health insurance for people like me. Bush, McCain, and Romney all ran on major health insurance reform with proposals that included many aspects of Obamacare. Then once Obamacare was passed they railed against policies they supported in the past and confused ignorant Republican voters. Republicans could have easily used the $300 billion from repealing the individual mandate to fix Obamacare but they chose to use it for tax cuts. Plus now Democrats are winning in red states by supporting the Medicaid expansion which now makes no sense to decline!!

          1. “No, Republicans choosing to not fix it has ruined health insurance for people like me.”

            Uh, what is the problem? You no longer are required to buy O-care; go shop around.

            1. Shop around? How? All of the shitty Obamacare regulations are still in place because Republicans were too inept to repeal them.

              1. This is true. Also why Ryan RINOs must be primaries out in favor of conservatives and libertarians.

      3. I already know the answer to this question, but do you basically think the state should be allowed to do anything it wants? If it wants to drive down the price of burgers, they can fine people (sorry, “tax” them) for refusing to purchase burger insurance guaranteeing them 40 burgers a week regardless of whether they want to eat them?

        And you can’t imagine why someone would object to that? That the state can punish you for not buying something it wants you to buy?

        I suppose if someone objected to the summary extrajudicial execution of someone you
        hate and fed their corpse to the poor you’d accuse anyone who objected of not wanting starving children to eat.

        1. Mark, of course most on the left (and some on the right) believe the state should be allowed to do anything it wants, usually sold as whatever is necessary to implement some partisan vision of society.

    3. Lol, Republicans didn’t vote for it and then red state voters defeated moderate Democrats so nobody was “defrauded”. Roberts is a savvy Republican so he knows it is stupid to let the Supreme Court help Democrats by fixing unpopular laws….and we got an extra $300 billion in tax cuts because he didn’t rule it unConstitutional!

    4. For legal purposes, shouldn’t something be treated according to its characteristics rather than according to what its proponents say it is? It sure acts like a tax.

      1. But it didn’t originate in the House, so it would still be invalid.

        1. The law doesn’t appear to matter much anymore.

          1. The law, or the U.S. Constitution. The argument should have been left simply as the federal government never being granted the authority to make law in the area of healthcare. Instead, the so very smart lawyers build their entire case on whether it was called a tax or penalty. Easily sidestepped by Roberts. Winning that would only have reinforced the perception that the feds can make law in any area they want, whether or not authority is granted in the Constitution.

  3. I think it will be Amy Barrett.

    I’d prefer another Gorsuch, though.

    1. Amy could use a little more seasoning. Save her for RBG’s seat.
      Kavanaugh is not sending a tingle up my leg.
      Maybe Reason will post some articles breaking down the 3rd person on Trump’s short list

      1. Don Willett is solid. But seems he’s not high in the running, unfortunately.

        1. Its not over until its over. Remember this is the same media predicing who Trump will chose that said Hillary would win.

    2. Newsflash, can’t you see a token when her culty face is on TV? Trump really must not like brown people though. It’s becoming increasingly clear along with his senility.

      1. Aren’t you OUR token?

        1. He is our token retard.

      2. She is no Wise Latina!

      3. Guy obsessed with everyone’s race goes around accusing everyone else of being racist for not fixating in everyone’s race like him. About as clear a case of projection as I’ve seen. I wouldn’t be surprised if you have a secret collection of Nazi paraphernalia under all your dildos and anal beads.

      4. Love to see her toking on TV.

    3. Can we give him 2 votes?

  4. “It is not our job to protect the people from the consequences of their political choices.”

    Uh…yes, it is. That is exactly what your job is.

    1. EXACTLY!

      Constitutional Republic vs Democracy…

      I am not subject to the tyranny of the majority.

      (Only the supermajority)

    2. No, it isn’t.

      The Obamacare suit asked the courts to overturn it on the basis of process. Not on the basis of constitutional rights. To that end, I am not offended.

      And we need to remember that Roberts undermined The Medicaid expansion. He killed the law. He just did it more subtly.

      1. Bubba,

        The Medicaid expansion has helped Democrats win in Louisiana and NC and I bet a Democrat wins in FL running on the Medicaid expansion.

      2. Roberts played the game, let Americans get pissed at Democrats rather than do his job and outright declare a law unconstitutional.

        Roberts probably considers himself a master chess player for having got America to throw out Democrats.

        1. Where is the pile of democrats ‘thrown out’?
          Emperor Hussein was term limited.
          The Queen was not ‘in’ to be ‘thrown out’.
          The democrat Trump, running as a republican, was thrown in.
          (democrat like Kennedy, not the current socialists claiming to be democrats)

    3. The SCOTUS is supposed to protect the People via the limitations of the Constitution.

      Roberts is really horrible. I wish he would resign so Trump could replace him too.

  5. As a left-libertarian, I want Supreme Court justices who have a nuanced view of judicial restraint and respect for precedent. Clearly, decisions based on rock-solid legal reasoning like Roe v. Wade should be treated as settled law. On the other hand, there are some situations in which precedents should be overturned if the Court used indefensible “logic” to arrive at a pre-determined outcome. The most egregious recent example of this is District of Columbia v. Heller.

    1. Boring. Try harder.

    2. Is left-libertarian code for a Democrat who doesn’t like the term progressive?

      How can you claim to be a libertarian but not believe that citizens have a right to own/carry guns? Do you not believe in free speech either?

      1. brokencycle|7.7.18 @ 6:40PM|#
        “Is left-libertarian code for a Democrat who doesn’t like the term progressive?”

        This twit posts as if the intent is sarcasm; I have my doubts.

      2. Hes a joke account but yes “left-libertarians” are probably lefties hiding as LINOs. Youre either a libertarian or youre not.

        Being a libertarian has pretty common fundamentals. We can disagree on how small and limited govenrment should be but libertarianism is all about small and limited govnerment.

    3. OBL, what is this ‘court’ nonsense? Why aren’t you pushing for a Hillary run Politburo that will control everything?

      You must be a closet Drumpf supporter……..

    4. What is left-libertarianism?

      Socialism with balanced books?

      Roe good legal Reasoning? Really? I favor the results of Roe (no VJ police) . But really.

      Wait. You oppose Heller? You are not any kind of libertarian.

  6. I appreciate these write-ups, Damon. I’ve read all of them so far and based on what you’ve written (which I know is somewhat limited in scope), this guy is my least favorite of the names that have been floated so far.

    1. Agreed. On both points.

    2. +1 for this comment.

  7. I’d rather just have quality health care that’s affordable and skip the insurance altogether.

    1. But what does “quality” mean? The resources do not exist to provide state-of-the-art medical care for everyone. Not at any price.

      1. Why not enact price controls on health care, the way California enacted price controls on paper bags?

      2. Just skimp on the progtards. They’re not real humans anyway.

      3. I suspect that if you replaced the FDA with private, for profit certification agencies and removed any other regulatory barriers keeping health care and all the associated resources from reaching the consumer quickly and easily, we’d have better medical care for everyone than we currently have for all but the richest.

        1. Government is inefficient and wastes tax dollars. For-profit everything is subject to corruption. The FDA *has* prevented poisioning unless you want to ignore it’s whole history.

    2. So is dying while waiting for an appointment ‘medical care’?
      Is waiting so long for an operation that the operation is no longer effective ‘quality’?
      Is the National Health Care system in Great Britain medical care?

  8. Well well look at all these libertarians being whiny bitches because a potential justice won’t rule politically in favor of Republicunts. Truly this is the internet’s epicenter of principle.

    1. Now’s the time for car control.

      Have a nice day.

      1. What we need is cousin control, because this president isn’t doing any favors for this country’s gene pool am I right.

        1. Seriously, Past Me, we didn’t know! You need to get over it! I have!

          1. Did you get over Past You’s buggering of schoolboys?

        2. Is that how you’ve been coping with it? I feel bad for your cousins.

    2. It seems you’ve been drinking gasoline again, your IQ has managed to slip even lower since I last saw you here. Try just putting it in your car next time.

  9. Sounds like another Roberts.

    1. Julia or Eric? Another Julia I can cope with, sorta.

      1. Emma! Yum……

        1. “Arr. this defendant be a scurvy dog, but he still should have been read his Miranda rights. The conviction is revarrrsed.”

  10. Not wonderful, but one more reason to be happy the hag is reduced to giving speeches.

  11. I’d still like Janice Rogers Brown, not only to watch Team Blue viciously excoriate a female minority for a week or so while still calling Republicans racist misogynists, but because she’d be great for a decade or so.

    1. Maybe to replace RBG once she croaks soon.

    2. It’d be great to see Tony racistly call her a token minority (maybe he’ll call call her a cunt and an n word for good measure) while accusing everyone right of Mao of being a white supremacist.

      1. Who are you being offended on behalf of?

        Jesus Christ the whining.

        1. We’re not offended, just love pointing out that you’re a piece of human garbage who will call your ideological opponents things like “token” and “cunt”. You know, like you did up thread about Amy Barrett.

          Next thing you know you’ll be calling for their summary execution. Oh wait, you’ve already done that.

          1. I’ve been called a cunt on this very thread and you don’t see me crying like a little fucking girl about it.

            1. you don’t see me crying like a little fucking girl about it

              You’re doing it right now

    3. Too bad Roy Moore is so old. Lol.

      1. You’re only as old as the girl you feel.

        1. Touching sentiment. Brought a tear to my eye.

  12. How are all the little Blocko Modos doing this morning? Only 1 and a half more days until Trump picks our next justice!

    Here’s hoping that he really sends you twerps into a fulminating lather and picks Barrett.

    1. I’m not sure what “Blocko Modos” are, but I still have hope the Democrats can #Resist Drumpf’s attempt to put another dangerous right-wing extremist on the SC. Unless he follows Schumer’s advice and picks Garland, of course. Otherwise, Orange Hitler should not be allowed to proceed with his judicial coup until the following three conditions are met:

      (1) The suspicious relationship between Kennedy’s son and Drumpf is fully explained
      (2) Mueller announces the completion of his investigation into #TrumpRussia
      (3) Next term’s #BlueWave Congress is in session

    2. What IS a Blocko Modo?

      1. He just puts sounds together.

  13. Tax jurisprudence is totally inept but so is the analysis used by Randy Barnett and States Attorney Generals. One AG was quoted as saying there are three constitutional taxes, direct, indirect and income. This reflects a belief that the 16th Amendment created a new kind of unnapportioned direct tax. It did no such thing. The income tax is an indirect excise tax; a direct tax on your property (earned receipts) would still be collected through the apportionment mechanism, which is so politically clumsy it has only been used a half dozen times in US history.
    The exception are receipts earned through the exploitation of a federal privilege for profit, because an excise tax is laid on privilege, and since the privilege, not the profit, is taxed , the income receipts only measure the amount of the privilege. Most Americans have no such income, and are not liable for an income tax.
    The libertarian conservative establishment refuses to reconsider their false history and analysis of the income tax, and since federal judges are the establishment, and only a few percent of the American people understand the income tax, there is little chance now of the judges overturning Obamacare or the income tax.

    1. The libertarian conservative establishment


    2. And I hate to break it to you but the wording of the 16th Amendment legalizes an income tax on anything that could be considered to be an income for anyone with said income.

    3. Those who argue that the 16th amendment created such a category must think the literal meaning of the amendment is too trivial to have been its intended one, because it appears to constitutionalize a power Congress already had.

      However, excises aren’t always from privilegs of the type described. Federal (and state) excise tax on liquor may be on a “privilege” in the sense that only certain persons are allowed by law to distill it, but it’s not a business that exists only because of statute.

  14. This is readily apparent by the legal kerfuckle over the anti injunction act. The original income tax was laid in 1862. It imposed an excise tax on income from the sale and distribution of cotton in the South, to be collected as the South was recaptured into the Union. The anti injunction act was designed to prevent the South from stopping this collection of an excise tax in court. It then became PAY FIRST, LITIGATE LATER for taxes.
    This is nonsense. The Rights of Englishmen as they existed in 1791 held that a freeman could challenge a tax at any time, and could demand a jury trial as well. This right has been lost due to the illegal collection of the US INDIVIDUAL INCOME TAX since WWII. The real tragedy is that the means to investigate this right is available but all the libertarian and conservative think tanks do not understand this lost right and devote no resources to research it. Only penniless tax honesty folks do.
    Judge Roberts overcame the anti injunction act with some clever legal ju jitsu, which has left folks like Barnett and Root scratching their heads ever since.

  15. He said that because the Obama administration declared the mandate a penalty, not a tax, he would ACCEPT THEIR ARGUMENT, and bypass the anti injunction act. Then he reversed himself in the opinion and declared the mandate a tax, after all. Like the hunter said in Jurassic Park, “Clever boy”.
    Rather than focus on this, libertarians should read Justice Roberts history of income tax jurisprudence in the case. Somehow, no mention of a general tax on all that comes in is mentioned. Why?
    We do not know how much Roberts knows, and since 99% of all tax jurisprudence is in regards to corporate taxes in which the individual right to have their receipts sheltered by the taxing clause of the constitution never comes up, we do not know if there is a coverup. We do know that tax honesty folks never have their appeals heard.
    Fortunately, tax honesty is WINNING since 2003, when libertarian Pete Hendrickson proved that the government will refund all withheld taxes, state and federal, including payroll taxes, if the proper, educated filings are made.
    But most libs and conservatives would rather rend their garments and gnash their teeth over the predations of the 1% than take the time to learn about the tax and join the 1% of educated Americans who file educated returns and receive full refunds of withholdings. See and

    1. I’ve wondered if Roberts’s flagrantly nonsensical decision on Obamacare was his way of trying to signal that he was under duress, like the sailor who blinked SOS with his eyes on TV when he was forced to confess to crimes by the North Koreans.

      1. Or like the waitress who poured a shitload of sugar in Clint Eastwood’s coffee in Dirty Harry.

      2. Yes. Robert’s was being blackmailed for his homosexuality and illegal adoptions of his beard babies.

        1. Does blackmail for homosexuality even work anymore? If Roberts came out the media would throw him a welcoming party.

  16. What a stupid haircut.

  17. Not surprising development

  18. Hey look, a tumbleweed.

  19. I obviously wouldn’t want Kavanaugh chosen, given how he decided the ObamaCare case.

    But a small part of me wants Trump to pick him anyway, just to enjoy the popcorn with Trump voters tying themselves in knots defending a guy who came up with the Obamacare = Tax idea.

    1. Which Trump voters? The ones who think Trump is totally awesome, or the ones who thought at least he wasn’t Hillary? The latter group may have lower expectations.

  20. And once again.
    Something is seriously wrong when the nomination of SCOTUS is regarded as almost as important itself as who wins the next election, either in Congress or in the Presidency.

    1. You mean there’s something wrong with the Constitution?

      It’s been this way since 1789. Has it been wrong since then?

      What are you talking about?

    2. “And once again.
      Something is seriously wrong when the nomination of SCOTUS is regarded as almost as important itself as who wins the next election, either in Congress or in the Presidency.”

      You’ve made that assertion several times with zero evidence to show it is other than the opinion of a lefty who posts here.
      Are we to presume a lefty’s opinion is worth more than squat? I see no reason to do so, and you’ve offered none.

      1. He didn’t have a problem with all of the court appointments when his hero Obama was in charge. He only has a problem with it now. It’s not hard to figure out why.

        I do think the judiciary branch has gained more power is our system than it was intended to have by the framers. But is was leftards like “chemjeff” who intentionally caused the system to gradually evolve this way over time.

        They sowed the wind, and now they’re going to reap the whirlwind.

  21. Im not sure the supreme court should strike down something like obamacare, that should be up to the democratic process (congress). The SC is suppose to be about rights (free speech, gun rights,…) not striking down programs enacted by congress, no matter how foolish they are. Kavanaugh seems like he may be the most ‘libertarian’ about rights so he is who seems the best to me. Hardiman and Kethledge seem much more conservative and deferential to govt. Barrett, other than abortion, its hard to say, she doesn’t have enough of a record. She is likely a social conservative though.

    1. The democratic process is supposed to be held in check by the courts. That’s the whole point. It is precisely supposed to strike down a law that violates property rights like Obamacare did.

      If Congress votes to enact slavery, SCOTUS should strike it down, not simply say, “Well… if you don’t like it vote differently next time.”

  22. Kavanaugh has ruled against the 4th Amendment several times.

    And he intimidated witnesses to Vince Foster’s body dump.

    1. He does seem weak on the 4th Amendment, you’re right.

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