Brett Kavanaugh Unmasked Part 1

Upon Justice Kennedy’s retirement from the U.S. Supreme Court, the president nominated his former clerk and judge on the D.C. Circuit, Brett Kavanaugh, to replace him. He is a devout Catholic and attended the same Jesuit high school as current U.S. Supreme Court Justice Neil Gorsuch. He attended Yale for college and law school. The president considered candidates from his list of 25, but various sources have stated that the president favored him from the beginning for his experience, education and solid judicial record.

This is the first in a two-part series assessing Judge Kavanaugh. The commentary will highlight some important points to consider when analyzing Judge Kavanaugh. We will discuss his judicial philosophy and look at a few of his recent major cases that are bound to gain some attention in the coming months as he proceeds through the confirmation process. Judge Kavanaugh has drawn many similarities to Chief Justice John Roberts with his philosophy.

The philosophy that most defines Judge Kavanaugh is judicial minimalism. This method can translate to a variety of outcomes depending on the nature of the case. Originalists can use judicial minimalism with their reluctance to disturb the original meaning of the text when interpreting the law. Living Constitutionalists and progressive legal theorists may rely on it as a means to maintain established precedent, despite it being created from decisions that do not have a strong basis in the Constitution. The judicial minimalist may not want to “rock the boat” so to speak and time can be a valid consideration for them. A judicial minimalist may also pay greater attention to the separation of powers and be very reluctant to invalidate congressional and legislative actions unless a very high burden is met.

When considering this philosophy in relation to Judge Kavanaugh, it would be reasonable to conclude on several cases he will prove to bring a very conservative and constitutionalist perspective, however, on other cases involving widely established precedent, you may find him more reluctant for full overturns at least during the opening stages of his tenure.

While we assess his cases, however, we must keep in mind that as a judge on the D.C. federal circuit, he was bound by the rulings of the U.S. Supreme Court which narrowed his scope of interpretation when making rulings. Several in the Constitutionalist circles have been concerned that he did not go far enough in some cases or did not reach his outcomes by using preferred reasoning, however, this criticism is not entirely fair when as a circuit judge one must assess the facts and arguments set before them and if they are harmonious with the Constitution and Supreme Court established precedent. The following are some of the more controversial cases that Judge Kavanaugh has recently heard that involve major society dominating topics.

From a Constitutionalist’s perspective there are elements of them that highlight some of the stronger points of Judge Kavanaugh’s philosophy, while other area may draw concerns and are worthy of further questioning by the senate during the confirmation hearings.

Garza (Undocumented Immigrant Abortion Case)

The threshold question in Garza v. Hargan was whether the U.S. Government may expeditiously transfer Jane Doe (the undocumented immigrant minor seeking an abortion) to an immigration sponsor before she makes her final decision. Ultimately, the court found that the minor did not have to wait to find a sponsor for the procedure to be conducted and her status did not prohibit her from obtaining the abortion right away.

Judge Kavanaugh criticized the full circuit’s majority opinion for inventing a Constitutional right to abortion for an undocumented immigrant without going through the process offered by the 3-judge circuit panel which considered Supreme Court precedent on abortion regulations and reached a conclusion that encouraged sponsorship. He provided some strong points in his dissent and emphasized how American law on abortion has been protective towards minors regarding a decision of this magnitude whether it be through waiting periods regulations, parental notification or the like. He then pointed to various Supreme Court decisions that upheld these regulations and emphasized that as a judge on the D.C.  Circuit it was not his role to disregard such precedent when hearing this case. He found that:

“The majority seems to think that the United States has no good reason to want to transfer an unlawful immigrant minor to an immigration sponsor before the minor has an abortion. But consider the circumstances here. The minor is alone and without family or friends. She is in a U.S. Government detention facility in a country that, for her, is foreign. She is 17 years old. She is pregnant and has to make a major life decision. Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor — ordinarily a family member, relative, or friend — before she makes that decision? . . . It is merely seeking to place the minor in a better place when deciding whether to have an abortion.”

Judge Kavanaugh brought up fair points that had been adjudicated in prior Supreme Court litigation and should have been persuasive precedent considered here. This case has drawn fire from those in conservative circles that would have liked him to have taken this opportunity to join a co-dissenting judge’s opinion that added broader language that the minor had no Constitutional right to an abortion. While in principle this may have been a correct Constitutional analysis, it did not fit at the circuit level in this matter because the government’s position during argument conceded that the abortion right existed under Roe v. Wade and Planned Parenthood v. Casey. As a lower circuit judge, it would not have been within his authority to decide the grounds outside this framework already established by the government to decide the case.

For the decision to be made on the Constitutionality of the abortion itself, the government needed to have made the argument challenging it to provide the necessary grounds for this case. The Supreme Court, however, should be the proper level to adjudicate the matter of its Constitutionality because Roe is Supreme Court precedent and at some point, there may be standing to challenge its Constitutionality through a law and strongly briefed arguments that raise this question at the highest level to encourage the Supreme Court to reconsider Roe.

Overall, in this case, Judge Kavanaugh has received unfair criticism and this should be considered by those following his confirmation process.

Seven Sky (Affordable Care Act Case)

The case that has given many in Constitutionalist circles concern is Judge Kavanaugh’s dissent in Seven Sky v. Holder that assesses the Affordable Care Act also known as Obamacare under a discussion focusing on tax. To be fair, Justice Kavanaugh narrows his dissent to the procedural aspects of lawsuits being brought because of Obamacare, not of the substantive nature of Obamacare.  His central argument defers to the wording of the Affordable Care Act passed by Congress and finds that sections of the Act cross-reference to chapter 68 subsection B of the tax code as the governing method to collect on penalties under the law. This would seemingly put it under the Anti-Injunction Act which essentially does not provide grounds for suits on the basis of taxing grounds until enforcement of the tax. He states:

“In short, the Affordable Care Act dictates that its penalties be assessed and collected in the same manner as chapter 68 subchapter B penalties. Chapter 68 subchapter B penalties in turn must be assessed and collected “in the same manner as taxes.” Taxes are insulated from pre-enforcement suits by the Anti-Injunction Act. In order for the Affordable Care Act’s penalties to be assessed and collected in the same manner as the chapter 68 subchapter B penalties and thus in the same manner as taxes, the Affordable Care Act’s penalties likewise must be insulated from pre-enforcement suits by the Anti-Injunction Act.”

As a result of this provision, he finds that the Anti-Injunction Act which shields taxes from pre-enforcement lawsuits before they are collected applied. In this case, the penalties provided for in Obamacare were not ripe to be enforced at the time of the lawsuit, thus there lacked grounds for a sustainable challenge and the court, according to Judge Kavanaugh, should have had no jurisdiction over the case until the penalties were activated.

Next, he briefly proceeds to assess the individual mandate established under the Affordable Care Act and glances at Constitutionality.

“This case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate provision fits comfortably within Congress’s Taxing Clause power. To be clear, I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause. What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight. And just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause).”

Here, however, Judge Kavanaugh does hint at the possibility of the individual mandate being one day Constitutional under the Taxing Clause if the statute is amended to no longer mandate maintaining health coverage. He believes it should focus on language regarding a financial incentive of maintaining the coverage, which would be considered a much lower standard. A mandatory standard is too high to be enforced under this clause according to Judge Kavanaugh. It would not be unreasonable to conclude, however, that this supplemental analysis gave Justice Roberts valid consideration in his ultimate finding for preserving the Affordable Care Act through the taxing power.

Overall, although this opinion contained many intricacies and narrowed its focus on jurisdictional grounds of hearing challenges to the Affordable Care Act, it showcased Justice Kavanaugh’s firm commitment to separation of powers and deference to other branches of government, thus keeping within his judicial minimalist philosophy.

Priests for Life (Related to Hobby Lobby)

Finally, the case, Priests for Life v. HHS, does however raise a concern with Judge Kavanaugh’s philosophy. The religious organization petitioners in this matter challenged the condition of accommodation regarding the contraceptive mandate from Obamacare that required that they give notice of their sincere religious objections to such coverage. As plaintiffs characterize it, their act of excusing themselves from legal liability for not providing contraceptive coverage is what made such coverage available to employees, and hence violated their Catholic faith. The notification requirement allowed for the employees to still get the coverage even if it was not directly through the faith employer. The religious employer argued that by participating in this notification process the end result enabled them to be participants.

In his dissenting opinion that would not have upheld the denial of a rehearing in the matter, Justice Kavanaugh substantively applies the Hobby Lobby framework which includes evaluating a substantial burden on the religious entity to further a compelling government interest and assess if that burden can be accomplished by the least restrictive means. He found that a substantial burden on religion existed, however, he cites to Justice Kennedy and the dissenters in Hobby Lobby who state that contraceptive coverage does in fact serve a compelling government interest to provide contraceptives. He finds, however, that there also was a least restrictive means to provide the contraceptive coverage without compelling the plaintiffs. But the second prong compelling interest analysis needs to be explained and hopefully the senate questions him on it.

Here is the segment of the opinion:

“Justice Kennedy strongly suggested in his Hobby Lobby concurring opinion —that the Government generally has a compelling interest in facilitating access to contraception for women employees. Hobby Lobby, 134 S.Ct. at 2785-86 (Kennedy, J., concurring)see also id. at 2779-80 (majority opinion); 2799-2801 (Ginsburg, J., dissenting); cf. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In particular, Justice Kennedy referred to the “premise” of the Court’s decision: namely, its “assumption” that the Government has a “legitimate and compelling interest” in facilitating access to contraception. Hobby Lobby, 134 S.Ct. at 2786 (Kennedy, J., concurring). Justice Kennedy’s use of the term “compelling” in this context was no doubt carefully considered. And the four dissenting Justices likewise stated that the Government had a compelling interest in facilitating women’s access to contraception. Id. at 2799-2801 (Ginsburg, J., dissenting).

It is not difficult to comprehend why a majority of the Justices in Hobby Lobby (Justice Kennedy plus the four dissenters) would suggest that the Government has a compelling interest in facilitating women’s access to contraception. About 50% of all pregnancies in the United States are unintended. The large number of unintended pregnancies causes significant social and economic costs. To alleviate those costs, the Federal Government has long sought to reduce the number of unintended pregnancies, including through the Affordable Care Act by making contraceptives more cheaply and widely available. It is commonly accepted that reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the  number of abortions, and help break a cycle of poverty that persists when women who cannot afford or obtain contraception become pregnant unintentionally at a young age. In light of the numerous benefits that would follow from reducing the number of unintended pregnancies, it comes as no surprise that Justice Kennedy’s opinion expressly referred to a “compelling” governmental interest in facilitating women’s access to contraception.

In short, even if the Court did not formally hold as much, Hobby Lobby at least strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”

This is a very troubling opinion by Judge Kavanaugh. Not only does he fail to emphasize the governing majority and other concurrences on the Supreme Court, he affirmed as a matter of public policy the compelling interest of government in providing contraceptives. This gives me concern that he has shown a tendency to focus on policy rather than the Constitution here. While I was not expecting him to insert language promoting an overturn of Griswold (which allowed for government interest in contraception cloaked within an invented Constitutional right to privacy) because that is not his role as a lower circuit judge, I would have preferred he not reaffirm a flawed concurrence by Justice Kennedy and cite to dissenting opinions.


After considering Judge Kavanaugh’s record and philosophy, I think he can make a fine judge on the Supreme Court, but he does not come without red flags. He does not have the consistent originalist-oriented approach of Gorsuch and Thomas and he relies too much on judicial minimalism. One of this philosophy’s greatest flaws is the reluctance to disturb precedent in prior cases and excessively “punt issues” despite the serious Constitutional problems that a matter presents and the standing to address them. A judge should not shy away from issuing a decision that challenges decades old precedent if that precedent was in error and that judge has standing to address it. The first duty is to the Constitution and everything flows from this premise.

This should not, however, be considered a call to judicial activism in which the Constitution is disregarded to make way for policy considerations. There must be a balance between the two, the willingness to, for example, let democracy and other branches have their proper place in deciding certain matters while at the same time recognizing that there are appropriate times to “rock the boat’ and disturb precedent if that is what the Constitution calls for. The litmus test for how Judge Kavanaugh fairs on the Supreme Court is how he is able to strike that delicate balance.

I believe, however, that we must also not forget Judge Kavanaugh’s prior position and how by its very nature as a circuit judge he was limited with the resources to consider when reaching decisions. At the Supreme Court level, Judge Kavanaugh will have an opportunity to expand his considerations when deciding cases and this should be reason for optimism. He is an intellectual force and has the potential to be a good asset to the Court for years to come.

Stay tuned for part 2 when we assess his administrative law writings and jurisprudence…..

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s