The Kennedy Retirement and the Radicalizing of the Supreme Court

Protesters swarmed Washington, DC, to voice their opposition to Brett Kavanaugh.

When Justice Anthony Kennedy announced his retirement from the Supreme Court, alarms went up about overturning Roe v. Wade, which would make abortion once again illegal in many states. As shown in Whole Woman’s Health v. Hellerstedt, in which Kennedy provided the decisive fifth vote overturning Texas’ draconian laws limiting abortion access, one justice can preserve the right to abortion. But Kennedy also voted with the majority in Planned Parenthood v. Casey in 1992, when the Supreme Court upheld a state’s right to impose extra requirements — mandatory counseling, waiting periods, etc. — on those seeking abortions. So, while he was willing to curtail access, he never was willing to overturn Roe v. Wade altogether.


In Brett Kavanaugh’s twisted worldview, paperwork is the true burden, while an unwanted pregnancy is not.


But Kennedy was the last independent conservative on the Supreme Court. Anyone Trump nominated was going to be on the far right because he was using the Federalist Society’s list compiled by Leonard Leo. Not quite a kingmaker, but definitely a justice-maker, Leo is also responsible for Justices Roberts, Alito, and Gorsuch.

But some on the right have some doubts about Kavanaugh. In response, the National Review emphasizes Kavanaugh’s judicial defense of “religious freedom.” (Nothing shows the real danger Kavanaugh poses like pundits on the far right reassuring other conservatives.) They lauded Kavanaugh’s ruling in favor of the Trump administration in the case of Jane Doe, the teenage immigrant the Department of Health and Human Services (HHS) tried to stop from having an abortion, as “the latest in a long, unbroken line of consistent decisions on issues of religion and abortion.” In addition to celebrating his anti-abortion record, it lavishes further praise on his opposition to contraception access:

During the Obama administration, he voted in Priests for Life v. HHS to invalidate the so-called accommodation to the contraceptive mandate, which required religious organizations to sign a form facilitating access to contraceptives for their employees. Judge Kavanaugh was one of few federal judges (Neil Gorsuch was another) to hold that the law imposed a “substantial burden” on the organizations’ exercise of religious liberty, and one of even fewer to conclude that the contraceptive-mandate accommodation violated the law. The Supreme Court later vindicated his position by vacating decisions that upheld the contraceptive-mandate accommodation.

As Amanda Marcotte points out, it’s not just about abortion. She points to the conservative legal argument we’ve heard before that the Constitution does not contain a right to privacy. Roe v. Wade was based on the decision in Griswold v. Connecticut, which made it legal for married women to use birth control. In 1965! That decision was based married couples’ right to privacy in their sexual relationship. My generation complains that young women don’t understand what it was like when abortion was illegal. Some of us remember when birth control was illegal too, and that could happen again.

When I looked up Brett Kavanaugh, Trump’s pick to fill Justice Kennedy’s seat, what stood out most was his political background — working for Ken Starr’s Clinton investigation and helping to write the Starr Report; working for George W’s campaign, including on the Florida recount fight; and subsequently working in the Bush White House, before being nominated to the DC Circuit. He was nominated in 2003, but not confirmed until three years later. Even then he was controversial.

As I listened to Kavanaugh’s committee hearings, my sense of alarm only grew. I have not heard all of these hearings, but it’s hard not to feel that the Senate Republicans are staging a coup. This moment — this rare opportunity to reshape the Supreme Court — is the reason for their Faustian bargain with Donald Trump, and they are not going to allow anything to interfere with it.

In an unprecedented move, committee chairman Chuck Grassley designated some 189,000 documents from Kavanaugh’s time in the Bush White House “committee confidential,” meaning that they would be available to committee members, who could ask the nominee about them in closed session. This is sometimes done to protect national security, but never with this number of documents on so many subjects. During the first two days of hearings, Democrats struggled to question Kavanaugh about some of these documents, but were frustrated because they could not present them to him for comment. Then Cory Booker and Maizie Hirono dramatically released several memos — which turned out to have no relationship to national security. An example:

Judge Kavanaugh was considering a draft opinion piece that supporters of one of Mr. Bush’s conservative appeals court nominees hoped they could persuade anti-abortion women to submit under their names. It stated that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”

Judge Kavanaugh proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

His openness to the idea of overturning Roe is alarming, and his judicial record offers no comfort. Kavanaugh’s ideas about what constitutes a “burden” reveal priorities aligned with religious doctrine rather than with the Constitution. In the hearings for the Priests for Life case, Kavanaugh agreed that filling out a two-page form to enable an employee to obtain birth control under the Affordable Care Act was an undue burden on employers’ religious freedom. At the same time, he saw nothing burdensome about a 17-year-old in the custody of the Office of Refugee Resettlement being prevented from having an abortion the Texas court had already approved. Instead he imposed what could be several weeks of further hoops for her to jump through. She was already 13 weeks pregnant, the delay having forced her into her second trimester. Though his ideas about what represents a burden seemed inconsistent, in both cases, Kavanaugh ruled against women’s reproductive rights.

Besides the documents released by Booker and Hirono, Patrick Leahy separately released six Democratic memos from the early 2000s that had been forwarded to Kavanaugh by the Republican counsel to the Judiciary Committee Manny Miranda, who later resigned because he had hacked into Democratic files. Under questioning last week, Kavanaugh continually said he had no reason to believe the memos had been illicitly obtained, even when Leahy held up two that were clearly stamped “Committee.” But the important point here is that Kavanaugh may have perjured himself in his confirmation hearings in 2004 and 2006, claiming he had never seen any stolen memos.

The fight is so much bigger than just Kavanaugh, though; even if he is defeated, the next person nominated for Kennedy’s seat will also have been found by the Federalist Society to conform to all the far-right positions, and therefore will be pro-business and anti-abortion, will interpret religious freedom broadly to include the right to interfere in other people’s freedoms for religious reasons, and will interpret the Constitution as narrowly as possible when it comes to other rights and freedoms. So it has been hard for me to believe that defeating Kavanaugh will make a difference.

Our political process has been growing more partisan and polarized for a long time now. During the Clinton administration, under Newt Gingrich’s leadership, Republicans excluded Democrats from conferences about legislation, a practice that continued under Tom DeLay and Dennis Hastert during the Bush administration. Then both John Boehner and Paul Ryan refused to bring any legislation to the floor unless it had the support of a “majority of the majority” and could pass without Democratic support. It came to a dramatic head in 2016, when Mitch McConnell refused even to consider Merrick Garland, Obama’s nominee to replace Antonin Scalia. When legislators like Gingrich, DeLay, Boehner, Ryan, and McConnell see Democrats as the enemy rather than as colleagues, we can’t be surprised that the toxic atmosphere in the Capitol has become even more poisonous as we move through the Trump era.

The Senate Judiciary Committee could vote on confirmation as early as September 13. McConnell predicts Kavanaugh could be confirmed before the Supreme Court convenes of October 1. If you live in Arizona, call Sens. Flake and Kyl to voice your opposition:

  • Sen. Jeff Flake: Washington, DC (202-224-4521), Phoenix (602-840-1891), Tucson (520-575-8633)
  • Sen. Jon Kyl: Washington, DC (202-224-2235)

One thought on “The Kennedy Retirement and the Radicalizing of the Supreme Court

  1. Here’s why you should also call Sens. Collins and Murkowsky:
    https://www.dailykos.com/stories/2018/9/10/1794785/–A-federal-appeals-court-just-gave-both-middle-fingers-to-Roe-v-Wade-Here-we-go

    A Missouri appeals court just found:
    And yet, the panel of three Republican judges all conclude that this provision may stand, at least for now. Judge Shepherd claims this result is justified because “Hellerstedt did not find, as a matter of law, that abortion was inherently safe or that provisions similar to the laws it considered would never be constitutional.” The Supreme Court’s opinion in Hellerstedt determined that abortion was very safe in the state of Texas, but “no such determination about abortion in Missouri was made here.”

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