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.

Comments

[ReaderY]

Nothing in Kavanaugh’s concurrence in the Wisconsin election case has anything to do with the independent state legislature theory.

Kavanaugh merely said that the federal constitution does not give federal courts a big role in setting state election policy, and that standard absentee ballot deadline are presumptively constitutional.

The independent state legislature theory says something entirely different. It says that federal courts, and only federal courts, determine whether state law was followed in elections. This gives federal courts a big, indeed massive, role in state elections, supervising state courts and state administrative agencies to make sure they do not interfere with what the state legislature intended, as federal judges (and ONLY federal judges) see it.

That’s pretty much the opposite of what Kavanaugh said.

[Magister]

I thought the independent state legislature theory was that no court or executive had any say in how the legislature acts with regard to elections. So at the extreme end of that theory, the legislature could ignore the actual votes after the counting. Its main relevance is that a number of swing states have highly gerrymandered Republican legislatures (a legacy of 2010, when progressive voters were discouraged by Obama not being as progressive as they had believed, and conservative voters were fired up over the color of Obama's suit).

[bratschewurst]

“ And maybe, if Congress doesn't update a five-decade-old statute, the Court will lower the boom.”

Neo-textualism: laws only mean what they say for a period of time to be determined solely by the Court.

[Doug Heffernan]

15 members? Will the bench need to lengthened? Is it old growth wood? I hope they bring in a master carpenter so that it looks nice. Oral arguments will need to be extended so that all 15 have time for questions. If they use a secret santa system for holiday gifts to each other, who gave which gift will be more of a mystery, which might be fun. Hope thomas doesn't have to split his billionaire graft with the new members. They will have to pay their dues for a while before they pull in that sort of bank. Or, the new members can make their own billionaire friends and not steal thomas' sugar daddy. Half the fun of access to billionaire money is laughing at the others that don't have it. Anyway, it sounds like an entertaining future is in store for the court.