The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kavanaugh's Paradox
For more than a month, protestors have demonstrated outside of Justice Kavanaugh's house. The purpose of these gatherings is clear: to pressure the Justice to change his vote in Dobbs. On Tuesday, Nicholas John Roske traveled to Justice Kavanaugh's house with the same purpose. But instead of wearing a pussy hat, he brought a bag filled with weapons. Even after this apparent assassination attempt, the protestors came back to Kavanaugh's house to demonstrate. And they will likely continue protesting outside of his house until Dobbs is decided.
Still, Kavanaugh faces a paradox. In February, he joined Justice Alito's majority opinion. And Politico suggested that in early May, Kavanaugh was still with the majority. But we were told that Roberts had not yet circulated his concurrence. No doubt the protestors hope that pressuring will deprive Alito of a majority to save Roe. Mr. Roske chose different means, but had the same ends. If in fact, Kavanaugh did change his vote after May, in response to the Chef's blue plate special, then perhaps the protests and death threats will stop. We would be blind to reality if we thought this prospect did not play some role in Kavanaugh's decision-making. But I think this calculus is backwards. If Kavanaugh does change his vote, we will learn about it. Jan Crawford, Joan Biskupic, and others will find out. And the protestors packing pussy hats and Glocks will know the playbook: the way to change Justice Kavanaugh's vote is through pressure on his family. If it worked once, it will work again.
Thus, the paradox: if Kavanaugh changes his vote to uphold Roe, the protests may stop in the short-term, but will continue in the long-term. Ruth Sent Us can buy a house on Kavanaugh's block to set up a 24-hour vigil. If Kavanaugh stands by his vote to reverse Roe, the protests in the short-term will continue, but will fade in the long-term. Standing firm will send a clear and unequivocal message that neither fear nor favor will affect the judicial power.
I do not envy Justice Kavanaugh's position. Indeed, I can't fathom why anyone would want to serve on the Supreme Court. To be more precise, I can't fathom why any conservative would want to serve on the Supreme Court. Liberal jurists are feted with honors at every juncture. But conservative jurists are excoriated and personally attacked. I wonder, in hindsight, if Kavanaugh still would have pursued a position on the Supreme Court, knowing what we know now: the first confirmation hearing, baseball tickets, Spartacus, Christine Blasey Ford, Michael Avenatti, Ronan Farrow, the second confirmation hearing, yearbook, beer, Klobuchar, Saturday Night Live, Matt Damon, the Dobbs leak, and now an assassination attempt outside of his home. During this time, Kavanaugh and his family have been dragged through such painful experiences, one after the other. Was it all worth it? And to what end? To swallow the Chief's blue plate special?
The Court has announced opinions will be issued on Monday and Wednesday of next week.