The Volokh Conspiracy
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McKay Coppins wrote a deep profile about Justice Kavanaugh in the Atlantic. He talked to Kavanaugh's friends, clerks, and other people who seem to have some inside information. The piece is titled, "Is Brett Kavanaugh Out for Revenge?" The subtitle is "Three years after his polarizing confirmation hearings, the Supreme Court's 114th justice remains a mystery." Let me help people out here. No, he is not out for revenge. No, he is not a mystery. Justice Kavanaugh is who we always knew he was. I have disagreed with many of his rulings, but frankly, I have not been surprised. Almost every vote he cast was consistent with how I have long understood him. Perhaps the lone exception was his brilliant Calvary Chapel concurrence, which is now the Court's Free Exercise Clause approach. But otherwise, it has been business as usual.
Coppins accurately distills Kavanaugh into a single sentence, which is buried at the end of the article:
But squint again at the story of Kavanaugh's rise, and a different picture might come into view: a credential-obsessed meritocrat who's spent his life sweatily striving for power without any grounding in conviction or principle.
As I read the piece, I found myself nodding in agreement, over and over again. Here are a few highlights.
First, Coppins explains that (Chief) Justice Kagan made an early play for Kavanaugh's vote. She would host a dinner party for him! The fabled DC dinner party. It's like a parody, but for real.
Kagan, an Obama appointee known inside the Court as a deft strategic operator, was quick to make a move. Sensing that Kavanaugh, in this vulnerable moment, might welcome allies wherever he could find them, she launched a quiet charm offensive. While he was still moving into his chambers, Kagan stopped by and offered to host a dinner party in his honor at her Washington apartment. They were seen together frequently—whispering and laughing during oral arguments or talking baseball over lunch in the justices' private dining hall, where she liked to joke that their conversation was a reprieve from the Shakespearean forays favored by Kavanaugh's predecessor, Anthony Kennedy. "She saw him as up for grabs," said one person with knowledge of the Court's internal dynamics.
Yeah, no kidding. Laurence Tribe was right about Kagan. She would have purchase on Justice Kennedy. And she will have purchase on Justice Kavanaugh.
Second, we learn more about the bromance between Chief Justice Roberts and Brett Kavanaugh. No, it's not a bromance. They are soul-mates.
But the justice to whom Kavanaugh gravitated, according to people close to him, was John Roberts. The two men had moved in similar social circles for years—they belonged to the same country club, played in the same poker game—and Kavanaugh had long considered him a role model. He made little secret of his fanboy status: In his D.C. Circuit chambers, a blown-up photograph of himself and "the chief" had hung on the wall. "Brett idolizes John Roberts," a friend of Kavanaugh's told me. "If you're looking for soul-mate types, that's them."
After Justice Kennedy retired, I told anybody who would listen that Kavanaugh would be a Roberts clone. The Kavanaugh entourage viciously rejected this alleged slander. Who were they kidding? Kavanaugh had a Roberts shrine in his chambers. Was anyone surprised that Roberts's NFIB opinion relied so heavily on Kavanaugh's Seven-Sky v. Holder opinion? I wrote an entire chapter on this episode in Unprecedented, which I reprinted on my blog. But don't worry. Chevron is on the chopping block.
Coppins explains that Roberts "cultivate[d] Kavanaugh."
Court watchers varied on whether the feeling was mutual, but Roberts had his own reasons to cultivate Kavanaugh.
This language is very similar to language that Joan Biskupic used in her series of SCOTUS leaks:
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.
Guided. Cultivated. Dare I say groomed? How demeaning.
Next, Coppins seems to reveal some information from conferences. My criticisms against Biskupic apply here as well. These leaks are dangerous and should be avoided.
Roberts worked to ensure that Kavanaugh's first term was as uneventful as possible. He maneuvered to clear the docket of abortion cases, and successfully punted a controversial case involving a Christian baker and a same-sex-wedding cake back to the lower courts. In the cases the Court heard, Kavanaugh stuck close to Roberts, voting with him 94 percent of the time.
In February 2019, the Court blocked Louisiana's abortion law in the case that became June Medical. But the Court also granted cert and heard the case the following term. Kavanaugh would have denied the stay (shocker) but suggested an alternate path for the challengers to prevail.
The reference to the Christian Baker here is not to Masterpiece, which was decided in June 2018 before Kavanaugh joined the Court. Rather, Coppins is referring to Melissa Klein v. Oregon Bureau of Labor and Industries. Klein owned Sweetcakes bakery in Oregon. This case was distributed to thirteen conferences. And on June 17, the Court finally GVR'd the case in light of Masterpiece. If Coppins is correct, then Roberts warned that if the Court granted cert, he would rule against the baker--the same schtick he pulled in Second Amendment cases last year. And Kavanaugh went along with it.
Third, Coppins gives us some insights about the relationship between Justices Kavanaugh and Gorsuch. The two Trump appointees, who attended the same prep school, and who both clerked for the same Justice, have never boofed well together.
Observers were quick to note how different Kavanaugh seemed from his fellow Trump appointee, Neil Gorsuch. Though they had known each other since adolescence, when they were two years apart at Georgetown Prep, they were polar opposites. Kavanaugh was the proto–frat bro who organized boozy beach trips for his friends, Gorsuch the know-it-all prig who spent his free time on the debate team. And though they ended up clerking at the same time for Justice Kennedy, they never seemed to warm up to each other. The tense nature of their relationship became a subject of speculation among the Court's insiders. Some chalked it up to clashing personalities: "Gorsuch has somewhat sharp elbows and a lot of self-regard," one person told me. Others pointed to signs of a competitive rivalry: When Gorsuch was nominated first for the Supreme Court, in 2017, a restless Kavanaugh began telling friends that he might retire from the D.C. Circuit and make money practicing law.
"A lot of self-regard." That is putting it mildly. But I will always commend Justice Gorsuch for his convictions. He stands by his position, regardless of the potential backlash. Bostock was profoundly wrong, but Justice Gorsuch was willing to accept retribution. Justice Kavanaugh could not make such a decision. Coppins writes:
His conservative colleagues might let stories like that roll off their backs, but Kavanaugh is hyper-attentive to the press. "I don't think Thomas or Alito gives a shit what The New York Times says about them," one friend told me. "But I think Brett does."
Coppins quotes another Kavanaugh ally who worries that the Justice will drift to the right:
Now some Republicans are privately wondering if the scramble to push through his confirmation was worth it. "Might there be some temptation to appease the left? Yeah, there might be," one Kavanaugh ally told me. "He's a human, and that's a very human temptation. But I would be extremely disappointed in him if he were to go south."
No, he will not drift. He cannot drift. To drift, you must have a fixed starting point. Kavanaugh is who he is.