The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Part I of Joan Biskupic's series celebrated Chief Justice Roberts's power. Part II praised Justice Gorsuch's decisiveness. Now, Part III turns to Justice Kavanaugh. The portrait is not nearly as flattering. Biskupic's third installment describes the Junior Justice's failed efforts to adopt narrower grounds in the abortion and tax return cases. He comes off looking weak and ineffective. Indeed, his attempts at moderation are not based on sort of moderate first principles, but because he wants to look moderate after his bruising confirmation hearing. Appearances matter. I alluded to that sense in my NRO essay this morning. (I wrote that piece well before Biskupic's series began). For now, I will consider each of Biskupic's allegations about the newest member of the Court.
How I Read the Reports
When I read Biskupic's reports, I am not particularly concerned about the substance. Joan is a good reporter, and I've come to know her well over the past decade. But her job is thankless. Reporters who cover the Court are in a tough spot. She may receive three leaks from three sources, all of which are in conflict. How is Biskupic to know which leak was accurate? There are some accounts that can be objectively verified. But with respect to discussions at the private conference, there is no way to confirm any particular account. As the saying goes, No one else was in the room where it happened.
As a result, I take all of Biskupic's reports with a mound of salt. I understand that different people, on different sides of debates, see the issues very differently.
I am far more interested in ferreting out the competing narratives in her reporting. I don't think Biskupic is trying to advance any particular narrative. Truly. She is a good journalist. Biskupic is doing her best to thread together the narratives of her sources. For example, her account of the voting lineups in Bostock doesn't quite add up. She may not know the precise chronology. And she cannot inspect the docket books to see "how the sausage is made."
The narrative for Part III is patent: Kavanaugh is image-conscious, weak, and ineffective.
We are now nearly two years from Justice Kavanaugh's confirmation hearing. But Biskupic tells us that the pain "remain[s] fresh"–for Kavanaugh, that is, not Christine Blasey Ford.
His searing confirmation hearings, when he denied allegations that he had sexually assaulted Christine Blasey Ford when they were teenagers, remain fresh. He decried the claims as part of a vengeful partisan campaign against him.
How does Biskupic know that these pains "remain fresh." Here, and at specific points of the story, Biskupic does not rely on any sourcing. Rather, she hedges. For example, Kavanaugh "appears keenly aware."
Having undergone that divisive battle, Kavanaugh, in his writing, appears keenly aware of tenuous public opinion of him and ready to adopt a posture of conciliation with his colleagues as he tries to influence deliberations on cases.
Huh? Everywhere else, Biskupic writes that she has multiple sources. But with respect to Kavanaugh's feelz, she cites nothing. What happened? Perhaps Biskupic has no source. Or her source–let's call him BK–told her not to describe the sourcing here.
We learn that Kavanaugh has "demonstrated a pattern of trying to publicly appeal to both sides."
Throughout the recent court session, as Kavanaugh revealed a desire to avoid certain thorny dilemmas, the newest justice also demonstrated a pattern of trying to publicly appeal to both sides.
Pattern, meaning that there were several instances of this behavior. What did Kavanaugh do? He tried to "please dueling factions."
Behind closed doors, he looks to please dueling factions of the court as he seeks to move beyond the angry and defiant image he projected in 2018.
Here, there is no sourcing on why he trying to please the factions. How does Biskupic know why Kavanaugh did what he did. Again, this seems to come from Kavanaugh himself.
Biskupic also explains that Kavanaugh sought to separate himself from Trump:
In 2018, Trump chose Kavanaugh to succeed Kennedy, convinced by advisers that the Bush loyalist would be true to Trump and his brand of conservatism. Kavanaugh has not turned his back on the politicians who guaranteed his high court ascension, but his writing has suggested he does not want to appear to be a reflexive conservative vote, particularly against women.
The line about his "writing has suggested" is similar to the "appears keenly aware line." Biskupic is pretending to make these observations neutral, without revealing her source. Also, what in his writing suggests that "Kavanaugh has not turned his back on the politicians who guaranteed his high court ascension"? Here, Kavanaugh seems to be telling Mitch and the gang not to worry about him.
This morning, I published an essay in NRO titled, Gorsuch and Kavanaugh Stake Out Their Independence from Trump. I wrote this piece long before Biskupic's series began. But the CNN reports confirms my read of how BK has approached this term. Here was my opening:
Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president probably would have withdrawn his nominee after Christine Blasey Ford's allegations, but Trump dug deep, and Kavanaugh crossed the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump's tenure is limited. These Gen-Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.
I think I got it.
Tax Return Cases
Biskupic considers both tax return cases. First, she considers Mazars, which involved the House Committees' subpoenas.
Biskupic writes that Kavanaugh circulated "an internal memo" and engaged in "conversations" with his colleagues. He urged them to consider dismissing the case in light of the political question doctrine.
Kavanaugh's idea—presented to the justices in an internal memo and conversations, sources said—would have had the high court avoid the subpoena fight over Trump financial documents, based on the judicial principle that courts should stay out of cases involving fundamentally political questions.
Had the Court adopted the political question doctrine, Trump's challenge would have been dismissed, and Mazars would have turned over the documents. In other words, Trump would have lost. But that decision would have empowered the Presidency for the future–Congress would not have been able to go to courts to enforce subpoenas.
Kavanaugh raised a theory known as the "political question" doctrine, which holds that certain disputes are more properly worked out between the political branches rather than by judges. He theorized that the case might be left to the usual back-and-forth of the White House and Congress to figure things out. His approach would provide an off-ramp for one of the imminent confrontations between Trump and the court.
Imagine that! This president loses, but the presidency wins. Biskupic writes:
Kavanaugh and other conservatives have long sought to bolster executive power, and if the high court were to decide that the House subpoena case was too political to resolve, it would dramatically undermine congressional power. Congress' investigative committees would be unable to turn to courts to enforce orders against the President and his people. …. Yet in this particular controversy, involving Trump's accountants and banks, if the high court were to declare the House subpoenas beyond the reach of judges, there would arguably be no way for Trump to prevent his financial institutions from providing his records to House investigators. The short-term loss could be Trump's—although sources said that did not enter into the discussions.
And Biskupic goes out of her way to stress that the Justices dared not mention the name of the current President.
While that strategy could have meant the President had to hand over his documents to congressional investigators, sources say the personal fate of Trump did not come up in internal conversations.
She repeats, later:
The justices concentrated on the larger issue of any president vs. the Congress, sources told CNN.
Of course there were no political calculations here. These leaks seem very deliberate.
Next, Biskupic recounts conversations from the "private teleconference." And she cites three sources. I think this is the first time Biskupic has placed a specific number on her sourcing. I presume "multiple" means two and several means "three." But I'm not sure.
Historically, the Justices have engaged in conference in a private room. It would have been impossible for anyone to listen in. But is it possible clerks were listening to the call? Maybe while Justice Breyer took a bathroom break? Or did the Justices divulge to their law clerks what transpired during the meeting.
During one of the justices' private teleconferences, according to three sources, Kavanaugh convinced his colleagues to ask for supplemental filings on whether the political-question doctrine applied or there was any other reason the justices could not decide the case.
At the conference, Kavanaugh asked his colleagues whether the Court could request supplemental briefing on the political question doctrine. My longtime suspicion is that only one vote is needed to request extra briefing, or add a question presented. For example, only Justice Thomas was interested in the Privileges or Immunities Clause in McDonald. But the Court added that additional QP. But here, the Justices were cautious about Kavanaugh's request, as it could affect how the public sees the case. Biskupic writes:
The discussion among the justices, sources said, concerned the practicalities of whether the issue Kavanaugh had raised would be relevant to the case involving private parties and whether it was prudent to make the late-hour request.
Ultimately, the Court requested supplemental briefing on April 27. (Twelve days earlier, the Court had rescheduled the arguments).
The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court's adjudication of these cases.
In the end, Kavanaugh's effort failed.
Kavanaugh's idea in the end also failed to sway the other justices, and Kavanaugh backed away from it, sources said.
He even abandoned it. Did Kavanaugh think the political question was the best legal answer? Or was it simply a dodge to avoid the spotlight?
Next Biskupic turns to Kavanaugh's vote in Vance v. Trump.
But in the companion case [Vance], revolving around Trump's effort to block a subpoena from the Manhattan district attorney, Kavanaugh offered something to both sides. He agreed that Trump does not possess absolute immunity from a state criminal subpoena—every justice agreed with that proposition—but he then wrote for himself and fellow Trump appointee Gorsuch to assert a tough standard for prosecutors trying to obtain a president's records.
Vance was the subject of my NRO essay. The 7-2 vote in that case was misleading. Kavanaugh, as well as Gorsuch, only concurred in judgment. I wrote:
I view this concurrence as something of a compromise. On the one hand, Gorsuch and Kavanaugh generally favor a broad conception of executive power. The two junior members of the Court were not prepared to join the chief's opinion, which handcuffs the president's autonomy and alters the balance of authority between the federal and state governments.
On the other hand, in this case too, Gorsuch and Kavanaugh likely could not be seen as voting in favor of the president who appointed them — especially after their contentious confirmations. They needed to stand in the same shoes as the Nixon appointees who ruled against President Nixon four decades ago. Indeed, during his confirmation hearing, Kavanaugh praised Chief Justice Warren Burger, "who had been appointed by President Nixon" and "brought the Court together in a unanimous decision." At the time, Kavanaugh knew that he could be called on to decide the validity of a subpoena against President Trump — whether it came from Robert Mueller, the House of Representatives, or a state prosecutor. There were no surprises.
Going forward, Trump's lawyers are citing Kavanaugh's concurrence (don't call it a dissent!) in the Southern District of New York.
Now, onto abortion.
First, Biskupic explains that the vote at conference was 5-4 to reverse. Roberts didn't flip here.
When the justices privately discussed the case days after oral arguments, CNN has learned, their vote was 5-4 to reverse the 5th Circuit and strike down the law. Chief Justice John Roberts, a conservative, provided the pivotal fifth vote with liberals to invalidate the law, similar to one struck down in Texas four years earlier.
Next, Biskupic writes that Breyer received "some guidance" from Ginsburg for the majority opinion.
Liberal Justice Stephen Breyer immediately began drafting the decision, with some guidance from Justice Ruth Bader Ginsburg, who had been a pioneering women's rights advocate before joining the bench.
Biskupic used similar language to describe how Roberts "guided" Kavanaugh in writing the per curiam NYS Rifle and Pistol case.
CNN has learned that resolution of that case took many twists and multiple draft opinions. Guided by Roberts, Justice Brett Kavanaugh crafted much of what turned out to be an unsigned "per curiam" opinion — joined by six justices, including Roberts—returning the case to lower court judges.
Is that a commonly-used word when one Justice helps another? "Guidance." It seems patronizing. A senior partner gives a junior associate "guidance." But colleagues, on the same level, do not give "guidance." They perhaps give "advice." Whoever told Biskupic the story about the NYS Rifle case also told her about June Medical. Plus, this account is one of the few insights into Breyer. He largely remains on the outside. (Though I am waiting for the big finale tomorrow when Biskupic gets to the bottom of Toiletgate). And almost nothing on Sotomayor. She is notably absent from any reporting.
Breyer started writing the decision in early March, and finished in mid-April. RBG, Sotomayor, and Kagan quickly signed on.
Breyer produced a first draft in in mid-April, CNN has learned. Ginsburg and his other liberal colleagues, Sonia Sotomayor and Elena Kagan, told him within days that they would sign on.
But mid-March, shortly after oral arguments, Justice Kavanaugh started another ill-fated effort to move the Court. He wrote more memos! Not singular. Plural.
In mid-March, Kavanaugh began making his case in a series of private memos to his colleagues, according to two sources, for returning the dispute to a trial court judge to gather more facts on just how onerous the admitting privileges requirement was.
Specifically, there were some factual disputes about whether the doctors in fact would have been denied privileges. Justice Kavanaugh identified these concerns in his separate dissent:
As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs' facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors (Does 2, 5, and 6) cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.
This argument was not new for Kavanaugh. He planted those seeds a year earlier June Medical v. Gee. In that case, Chief Justice Roberts voted to grant a stay of the Fifth Circuit's decision. (The first sign that Roberts was on on board). Kavanaugh wrote a four-page opinion dissenting from the stay. It used almost identical language to his ultimate June Medical dissent.
The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman's Health.
In February 2019, when I first read this dissent, I knew Kavanaugh was scheming something. Biskupic explains that this order "laid [the] groundwork" for his ultimate position:
Kavanaugh had laid groundwork for that position in February 2019, when the majority blocked the Louisiana abortion law from taking effect while the lawsuit was pending. Kavanaugh dissented then, saying the controversial law should be enforced. He asserted, contrary to the district judge's findings but in line with the 5th Circuit, that it was not yet clear doctors would not be able to obtain credentials.
The upshot of this proposal is that the law would remain blocked, but the Doctors could later bring an as-applied challenge. Biskupic acknowledges that conservatives would not have been pleased with this approach.
Kavanaugh's new suggestion would keep the law blocked in the short term while the case moved back through the legal system. That aspect might not have pleased Kavanaugh's core conservative constituency, which wanted the law enforced.
But this approach would have made it harder to bring facial challenges in the future.
In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman's constitutional right to end a pregnancy. In the long term, Kavanaugh's demanding approach would make it more difficult to challenge the state physician regulation, meaning it could eventually be enforced down the line.
Biskupic tells us this effort was primarily directed at shifting Roberts, who had already cast his vote at conference.
Kavanaugh directed his suggestions to all of the justices. Yet Roberts might have appeared most open to the idea, based on his own anti-abortion record. Four years earlier, Roberts had voted to uphold a nearly identical physician regulation from Texas. In fact, in his 15 years on the high court, Roberts had never cast a vote to invalidate an abortion regulation. Roberts also might have been similarly reluctant to stir controversy over reproductive rights and looking for a way to sidestep the dilemma. In the spring of 2020, just months from another presidential election and with the public closely watching what would happen to abortion rights without Kennedy, Roberts also had an incentive to respect the court's 2016 precedent. He held fast to what must have been a difficult vote, for abortion rights, even as he declared that he still believed the 2016 case had been wrongly decided.
Roberts was not swayed. No one was.
There were no takers among the justices for Kavanaugh's suggested solution. The liberals were locked in, and the three other conservatives were ready to dissent with no equivocation: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
Kavanaugh failed to persuade on abortion. He failed to persuade on tax returns. He also failed to persuade on the Second Amendment petitions. It is tough to call shots when you are not the median justice. Kavanaugh's former boss, Justice Kennedy, could make such power plays. But Kavanaugh cannot. This narrative truly makes Kavanaugh look weak and ineffective.
Biskupic describes Kavanaugh's solo dissent this way:
Kavanaugh penned a solo dissent asserting a lack of evidence that would support the challengers' claims. He also made clear, however, by signing on to Alito's dissent, that he thought sufficient facts existed on Louisiana's side.
Whatever ambivalences he began with, Kavanaugh returned in the end to publicly express his conservative convictions.
Of course, lurking in the background was Susan Collins. She offered this dodge: "And while Justice Kavanaugh called for additional fact finding in this case, he gave no indication in his dissenting opinion that he supports overturning Roe." There were five votes to overrule Whole Woman's Health? Roe is safe.
Finally, Biskupic includes several discussions of Justice Kavanaugh's tone. This section is very strange. It includes no sourcing. It doesn't rely on any unnamed sources. Here Biskupic seems to be relying solely on her intuition. I noted earlier that I don't buy this facade. I think here, she has a source, who told her not to indicate there was a source. Why would Biskupic list these specific facts based on nothing? It doesn't fit with the rest of her careful reporting.
Still, he went out of his way to separate himself from hard-hitting conservatives Thomas and Alito, and sometimes Gorsuch. Kavanaugh would hedge his rhetoric, trying to offer some sympathy for the people he was voting against, perhaps mindful of the reputation he wanted to counter and rebuild from 2018.
"Perhaps mindful"? Why would Biskupic speculate. I suspect Kavanaugh told her what he was mindful of. Or maybe Kagan relayed how she thought Kavanaugh felt.
On the substance, I have long been irked by Kavanaugh's tone in his separate writings. I've described them as consolation prizes–give the side you rule against a pat on the back! Kind of like the participation trophy given to the losing team in little league. I first noticed this sort of virtue signaling in the Maryland peace cross case. Part I of his concurrence was excellent. Part II was nauseating:
The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs' sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests.
I almost boofed, err, barfed when I read those passages. I didn't write about it at the time, because I wanted to see if this was a one-off. Maybe he was extra sympathetic to Jewish veterans in his Maryland community.
But then we saw it again in the DACA case. Biskupic recounts:
Yet he chose to split from the three other conservative dissenters, opening his statement with regard for Dreamers: "They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants."
Those facts were utterly unnecessary to his decision. They do little more than soften the blow of his admin decision. And Kavanaugh used similar language in Bostock:
The same was true when Kavanaugh chose not to side with fellow conservatives Roberts and Gorsuch to extend the 1964 Civil Rights Act to protect gay and transgender workers. He did not equivocate on the merits in that dispute. He cast a vote against expansion of the anti-discrimination law.
Kavanaugh appears to be trying to halt that pattern with a new message: He just wants to get along.
Again, no sourcing" He "appears." Later, she writes:
Still, he plainly struggled with the tone to take in dissent.
"Plainly struggled." As if we can derive that conclusion solely from the plain text of the opinion. Even the Court's resident literalist would not accept that construction.
Here is my tentative read on Justice Kavanaugh: everything he says and does is deliberate and strategic. Every sentence he writes. Every speech he gives. Every clerk he hires. Everything. It is all designed to convey a certain image, and help him advance some future goal. For much of his life, that goal was climbing to the Supreme Court. And now he has achieved that goal. Biskupic speaks to this process.
For much of his professional life, the 55-year-old Yale law graduate was laser-focused on the Supreme Court.He had been a law clerk to Justice Anthony Kennedy, assistant to independent counsel Ken Starr and a top legal aide to President George W. Bush. Kavanaugh maintained connections to powerful people who helped him climb the rungs of the judiciary.
Recall, Kavanaugh wasn't on Trump's first list. And I signaled that fact on NRO. He wasn't on the second list. Gorsuch was added to the second list, because he was going to be the nominee. Kavanaugh only managed to wrangle his name onto the third list. And once I saw that, I knew the fix was in. Sorry Judges Kethledge and Hardiman. There was no doubt who would be selected.
I can't imagine living my life in such a fashion. It must be painful to always let tomorrow guide your today. The anger we saw from his confirmation hearing reflected those best-laid plans being thrown up in the air. His entire career followed a script, till someone flipped that script.
I think Justice Kavanaugh should now recognize that his best-laid plans will not persuade his colleagues. He failed in June Medical. He failed in Mazars. He failed in the Second Amendment cases.
My unsolicited advice: free yourself. Stop trying to persuade your colleagues and start trying to persuade the next generation. Write for the law school casebooks and not to appease Susan Collins. (She will likely be out of office soon enough.) No one will ever remember decisions that narrowly dismissed a case on the political question doctrine, but quietly expanded executive power for the future. Short concurrences that do little more than virtual signal will be forgotten as soon as they're written. Use your prodigious talents to bring clarity to legal doctrine. Inspire a generation a generation to advance the law, don't conspire with colleagues to narrow it.
Recently, I was profoundly impressed with Kavanaugh's Calvary Chapel dissent. I agree with my friend Mike Dorf that Kavanaugh was not describing doctrine as it stands now. But I like the direction he is heading. And Kavanaugh's Bostock dissent was far superior to Alito's. This term should prove that long-games fail when you are not the median justice. And, unfortunately, Kavanaugh's colleagues are too happy to dump on him in the press. Kavanaugh has the potential for greatness. He shouldn't squander it.