The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Roberts the Creditor, Roberts the Debtor
Kavanaugh the follower.
I'm just about finished with my commentary about the Supreme Court term. Yet, I still have some difficulty reconciling the Chief Justice's opinions in Allen v. Milligan and in Students for Fair Admissions v. Harvard. In the Voting Rights Act case, he deferred extensively to Congress's findings concerning racial discrimination, and he stood by precedent from the Burger Court. In SFFA, he didn't even consider what Congress had to say about racial discrimination, and effectively overruled precedent from the Burger Court. (Indeed, SFFA and Dobbs bear some similarities--the Chief pretended to follow precedent, when he fact he rewrote them.) I felt like I was reading from two different Justices.
How do we explain Milligan and SFFA? Perhaps one explanation might be some sort of balance. The Chief Justice cast one vote that supports progressives on race, and one vote that opposed progressives on race. According to this view, the Supreme Court is like a bank of legitimacy. Make a deposit in Milligan, make a withdrawal in SFFA, and end up with a balanced register. The Chief Justice gets to serve as the creditor and the debtor. This analogy brings to mind Justice Scalia's observation from Adarand Constructors v. Pena (1995):
Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, and its rejection of dispositions based on race, or based on blood. To pursue the concept of racial entitlement-even for the most admirable and benign of purposes-is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
And what about Justice Kavanaugh? Along with the Chief, he was the only other Justice who was in the majority in both the VRA case and the affirmative action cases. Moreover, his concurrences in both cases were quite similar. In Milligan, he wrote that"race-based redistricting cannot extend indefinitely into the future." And in SFFA, he wrote that race-based affirmative action cannot extend indefinitely into the future. Sounds familiar.
Justice Kavanaugh has now completed with fifth term on the Court. And consistently he votes with the Chief Justice in 95% of the cases. Back in the early 1990s, Justice Thomas was accused of being a follower of Justice Scalia. But Justice Scalia admitted that he was often pushed to the right by Justice Thomas. With regard to Chief Justice Roberts and Justice Kavanaugh, who is leading and who is following? By all accounts, the Chief is in the lead, and Justice Kavanaugh is following. One metric: Justice Kavanaugh has written very, very little this term on his own. According to EmpiricalSCOTUS, "In terms of total word counts for opinions this term, Justice Thomas wrote the most and Justice Kavanaugh wrote the least." He has very few separate writings where he stakes out his own position on the law. And I observed earlier than his majority opinions are so short and under-argued.
After five years on the bench, I struggle to think about what Justice Kavanaugh's jurisprudential contributions are. I will still give him credit for his Calvary Chapel concurrence, which presaged the framework in Roman Catholic Diocese. But beyond that opinion, I can't think of much. When he does concur, he makes anodyne observations that assuage the left or balm the right. There is not much going on. And virtually no deep dive into the Constitution's original meaning. At most, he is a traditionalist--the Court should do it what is has done before, unless it has done something bad for too long, in which case it must do something else.
Justice Kavanaugh was touted as the most experienced Supreme Court nominee in modern history. If true, what has he done with that experience? Justice Barrett, who had very little judicial experience, is making her mark on the major question doctrine, stare decisis, originalist litigation strategies, and a few other areas. Justice Gorsuch has very clear priorities with regard to Indian law and the administrative state. But what about Justice Kavanaugh? He rarely votes the "wrong" way. But his individual contributions are utterly forgettable. Which opinion of his will be included in a casebook, and studied for years to come? As an author of a casebook, I can't think of any.
With Justice Kavanaugh, two lyrics from the Hamilton musical come to mind. Aaron Burr sang, Talk less, smile more, don't let them know what you're against or what your'e for. But Hamilton sang, I'm not throwing away my shot. I'm with Hamilton.
Of course, there is always time to correct course. We'll see what next Term brings.
