By Lawrence Hurley | Reuters
WASHINGTON (Reuters) – President Donald Trump’s appointee Brett Kavanaugh consistently delivered during his first term as a justice for conservatives who had hoped he would move the U.S. Supreme Court further to the right while still managing to keep a low profile following his acrimonious Senate confirmation process.
As the top U.S. judicial body wrapped up nine months of work on Thursday, Kavanaugh’s record showed he was in lockstep with the court’s four other conservative members. At least based on his first term, Kavanaugh showed himself to be more reliably conservative than the justice who Trump appointed him to replace, Anthony Kennedy, who sometimes sided with the court’s liberal bloc on issues including abortion and gay rights.
The term’s last day illustrated that well, with Kavanaugh firmly in the conservative camp in the two biggest rulings of the year. He and the other conservative justices, with the four liberal justices in dissent, delivered a 5-4 ruling that dealt a major blow to election reformers by refusing to curb politically inspired electoral district manipulation, called partisan gerrymandering.
In another 5-4 ruling, conservative Chief Justice John Roberts – who now occupies the court’s ideological center amid its rightward shift – joined the liberal justices in putting the brakes on Trump’s plan to add a contentious citizenship question to the 2020 census, but Kavanaugh joined the other three conservatives in dissent.
In other closely divided cases, Kavanaugh dissented in February when the court refused on a 5-4 vote to let a Louisiana restriction on abortion clinics to take effect. The same month he voted with the conservative majority to allow a Muslim prison inmate in Alabama to be executed without an imam present in the execution chamber over the dissent of the four liberals.
Only once did Kavanaugh break with his four conservative colleagues to side with the liberals, though that was in a major business case in which the court ruled 5-4 to allow antitrust claims against Apple Inc to move forward.
Ilya Somin, a law professor at George Mason University’s Antonin Scalia Law School in Virginia, said most of Kavanaugh’s votes were predictable based on his prior record as a judge on the federal appeals court in Washington.
“So far, there’s not a lot in the way of surprises with Kavanaugh. If he has been affected what happened in the confirmation hearings, it’s very difficult to assess that effect,” Somin added.
“With Justice Kavanaugh, the president delivered on his promise to American voters to appoint justices who understand that their modest but critical job is to interpret the law as written – not how they wish it were written if they were lawmakers,” added Mike Davis, a lawyer who played a key role in Kavanaugh’s confirmation as an aide to Republican Senator Chuck Grassley.
Kavanaugh, 54, also quietly did what he could to repair his public image, having been confirmed by a 50-48 Senate vote on Oct. 6, one of the tightest margins ever for a justice, after denying accusations of sexual assault.
His affable demeanor during oral arguments at the court – he regularly exchanged friendly remarks off-mic with liberal colleague Elena Kagan – stood in stark contrast to his angry testimony during his confirmation hearings last September when accused Democrats of orchestrating a hit-job against him.
His nomination had appeared safe until Christine Blasey Ford, a university professor from California, went public in September with accusations that Kavanaugh sexually assaulted her in 1982 when both were teenage high school students in Maryland. Two other women accused Kavanaugh of sexual misconduct dating to the 1980s. He denied the allegations.
Following his contentious confirmation process, Kavanaugh has not given public speeches or made other high-profile public appearances, in contrast to some of his colleagues. A rare public sighting occurred when he took part in a May charity run in Washington.
Kavanaugh, through a court spokeswoman, declined to comment on his first term.
During oral arguments, Kavanaugh often asked questions toward the end of the one-hour sessions, after other justices weighed in. His tone was often deferential, in contrast to the occasionally confrontational approach that colleagues like conservative Justice Neil Gorsuch and liberal Justice Sonia Sotomayor sometimes take.
Kavanaugh and Gorsuch both were appointed by Trump, who picked them from a list prepared by conservative legal activists. The two have amassed solid conservative voting records on the court, though they sometimes have diverged from one another.
They two were on opposite sides in 18 non-unanimous rulings out of 38 in which both participated. Overall, they agreed 70% of the time, according to Adam Feldman, a lawyer behind a court statistics blog called “Empirical SCOTUS.”
Kavanaugh was most closely aligned with Roberts, a conservative who takes more incremental approach to moving the court to the right. Kavanaugh voted with Roberts 94% of the time, the highest level of agreement among any two justices, according to Feldman.
“The fact he stuck so closely to the chief is probably the most notable feature of his jurisprudence,” said Nicole Saharsky, a lawyer who practices before the court.
That may suggest Kavanaugh shares Roberts’ concerns about the importance of the court’s reputation as an independent branch that can rise above partisan politics, Saharsky added.
Where Kavanaugh stands on incrementalism could become important in the coming years, particularly on abortion. Conservative activists want the court to reverse the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide, but the court’s conservatives could instead whittle away at the decision by upholding abortion restrictions without taking the final step of overturning it.
The court could address abortion again as soon as its next term, which starts in October, when it is likely to take up Louisiana’s appeal seeking to reinstate the restrictive abortion law that the justices put on hold.
(Reporting by Lawrence Hurley; Editing by Will Dunham)