The Kavanaugh Concurrence When He Swings Left

I'm holding my breath on his predictions in Allen and Brackeen.

I have written at some length about the Kavanaugh concurrence. Last term, in Dobbs and Bruen, we saw the Kavanaugh concurrences when he swings right. In both cases, Justice Kavanaugh decided questions that were not presented. In Dobbs, Justice Kavanaugh reached out to decide the right-to-travel issue. And in Bruen, he stated that states can require "mental health records checks" to obtain a carry permit. I won't rehash my criticism of these concurrences.

Recently, we have seen two Kavanaugh concurrences when he swings left in Allen v. Milligan and in Haaland v. Brackeen. Both cases share a common trait: he rules for the liberal side, but writes a short concurrence raising possible ways that conservatives may win in the future.

In Brackeen, Justice Kavanaugh joined Justice Barrett's majority opinion in full. He was MIA in the originalist debate between Justices Gorsuch and Thomas. The majority found that the plaintiffs did not have standing to bring a facial equal protection claim. Rather, Justice Barrett observed in Footnote 10, the "the individual petitioners can challenge ICWA's constitutionality in state court, as the Brackeens have done in their adoption proceedings." Justice Kavanaugh wrote a solo concurring opinion that stretched two paragraphs. He said that the "equal protection is serious" and "raise[s] significant questions under bedrock equal protection principles and this Court's precedents." It's serious and significant! Justice Kavanaugh predicted that "this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing." Will there even be four votes to grant certiorari in such a case? I can count to three: Thomas, Alito, and apparently, Kavanaugh. Will Justice Barrett, who just upheld this momentous social legislation turn around and say it is actually unconstitutional in most applications? I am doubtful, given her exceptionally high bar to disturb precedent. Justice Kavanaugh can write a powerful dissental, saying "this issue is still really serious!"

In Allen, Justice Kavanaugh cast the deciding fifth vote to rule against Alabama. He also wrote a four-page concurrence that clarified how he understands the precedents. But in the penultimate paragraph, he offers a glimmer of hope:

JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

Maybe, just maybe, Justice Kavanaugh will adopt a Shelby County-esque framework, such that the 1982 amendments have an expiration date--just like the 25-year clock in Grutter. But you know there will be a Northwest Austin interim decision, that gives Congress a chance to fix the VRA. And maybe, if Congress doesn't update a five-decade-old statute, the Court will lower the boom. By that time, the Court will likely have at least 15 members. Justice Kavanaugh can write a partial dissent for a 9-6 Court. I'm holding my breath the Court will ever reach this issue.

In Dobbs and Bruen, Kavanaugh stated unequivocally how liberals could win in the future. But in Allen and Brackeen, Kavanaugh could only write "we'll see." I've heard this script before. There was a time when Justice Kavanaugh urged the Court to take on the Independent State Legislature Doctrine. But he promptly backed off that theory after the 2020 election. And stay tuned for Moore v. Harper. Justice Kavanuagh's predictions are not worth much. But in the interim, lawyers will spend vast resources litigating the issue, hoping that maybe, just maybe, Justice Kavanaugh can provide a fifth vote. Reminds me of the era when Justice Kennedy was in charge, and we tried to read tea leaves in his concurrences. Don't count on it.