Brett Kavanaugh has refused to run interference for Trump in three key early rulings. Why?

Brett Kavanaugh has refused to run interference for Trump in three key early rulings. Why?.

On Friday afternoon, the U.S. Supreme Court refused to halt a trial over the Trump administration’s attempt to sabotage the 2020 census by adding a citizenship question. This decision did not sit well with the court’s far-right flank. Justices Neil Gorsuch and Clarence Thomas, who previously signaled their disapproval of the trial, registered their dissent. So did Justice Samuel Alito. But one justice conspicuously declined to join this troika: Brett Kavanaugh. The newest member of the court had a chance to defend the Trump administration’s efforts to obstruct judicial inquiry into the citizenship question. Instead, he remained silent.

The Supreme Court will have more opportunities to run interference for the Trump administration’s census sabotage. But it’s striking that Kavanaugh apparently did not vote to stymie this lawsuit in its early stages, thereby sparing the government from revealing its seemingly illicit motives. In fact, three times during his brief tenure, the new justice seems to have allied with his more moderate colleagues to avoid reversing lower-court decisions that went against the Trump administration. What remains unclear is whether Kavanaugh is positioning himself as a slightly more moderate conservative, in the mold of Chief Justice John Roberts—or if he’s simply keeping his head low until the radioactive fallout from his confirmation battle subsides.

Kavanaugh cannot be thrilled that his first major votes involve the census case. The lawsuit against the citizenship question was brought by a coalition of state attorneys general, led by New York Attorney General Barbara Underwood, as well as the American Civil Liberties Union. Underwood urged the Senate to vote against Kavanaugh; so did the ACLU in a rare move. (To justify its position, the ACLU cited Christine Blasey Ford’s allegations of sexual assault against Kavanaugh.) These two Kavanaugh opponents are suing the Trump administration, which defended Kavanaugh against Ford’s allegations and elevated him to his current position.

To make matters worse, just two weeks after the justice joined the court, he was forced to adjudicate a dispute between his allies and these foes. The ACLU wanted to depose both Commerce Secretary Wilbur Ross, who oversaw the addition of the citizenship question, and acting Assistant Attorney General John M. Gore, who worked with Ross on the project. Ross has already lied to Congress about his collusion with Gore, and both men’s testimony could help determine whether the administration’s actions were unlawful. But Trump’s Department of Justice sought to insulate both officials from the ACLU’s questions, raising a claim of privilege.

In a surprise split decision, the Supreme Court blocked Ross’ deposition but allowed Gore’s to move forward, a qualified but important victory for the ACLU. Gorsuch and Thomas filed a misleading dissent insisting that the court should block all discovery beyond the record compiled by the Commerce Department. This extraordinary intervention would almost certainly deny the plaintiffs any meaningful review of unelected bureaucrats’ behind-the-scenes machinations—a huge boon to the Trump administration.

Yet Kavanaugh didn’t join Gorsuch and Thomas. Or, more precisely, he didn’t publicly join them: When the court issues orders in pending cases, justices aren’t obligated to reveal how they voted, though they usually do. So we can’t be absolutely sure that Kavanaugh voted to permit Ross’ deposition. But the fact that he did not note a dissent implies that he voted with the majority. And that means he is likely unwilling to shield Gore from a deposition that—no surprise—wound up undermining Gore’s own previous defense of the citizenship question.

On Friday, the Supreme Court took the next logical step and let U.S. District Judge Jesse Furman conduct a trial to probe the question’s legality. This time, Alito joined Thomas and Gorsuch in dissent. Once again, Kavanaugh stayed quiet, suggesting that he may have joined the majority to let the trial commence.

Shortly thereafter, the court issued another order denying the Justice Department’s efforts to halt a major climate change lawsuit. The suit alleges that the federal government is violating young people’s constitutional right to life and liberty by failing to curb greenhouse gas emissions. A federal district court has denied the DOJ’s motions to dismiss, and scheduled a trial. Rather than pursue a typical appeal, the Trump administration chose to go straight to the Supreme Court, leapfrogging over the liberal 9th U.S. Circuit Court of Appeals.

On Friday, after its order in the census case, the Supreme Court swatted away the DOJ’s pleas. The court held that, because the government could still seek relief at the 9th Circuit, it had no business demanding immediate relief at SCOTUS. This sensible decision does not mean that the court will ultimately embrace the plaintiffs’ expansive theory of a constitutional right to an inhabitable planet. It merely means that a majority of the court does not view the case as so utterly frivolous that it will cast aside the usual rules of appellate procedure to spare the government from defending itself further.

Predictably, Thomas, Gorsuch, and Alito dissented. Again, Kavanaugh does not appear to have joined them. For the second time in the span of about an hour, he seemed to have joined Roberts and the liberals in a kind of centrist alliance.

What’s going on here? There are a few possibilities. The first is that, despite his fire-breathing performance before Congress, Kavanaugh, like Roberts, is an institutionalist who deeply values the court’s prestige and loathes its intrusions into the political realm. This concern for the court’s reputation as a genuinely independent third branch has occasionally moderated Roberts’ conservative instincts—most famously in the Obamacare litigation, but also with regard to earlier iterations of Trump’s travel ban. Perhaps Kavanaugh shares Roberts’ willingness to inch toward the center and craft compromises in high-profile, politically charged cases.

Then there’s the more cynical explanation: Kavanaugh wants to stay far out of the spotlight—at least until he has established centrist bona fides. His confirmation battle was an explosive partisan spectacle that climaxed in Kavanaugh’s furious declaration of war against Democratic senators. Kavanaugh might want to defuse Democrats’ rage by disappearing from the public stage. He may recognize that his confirmation battle served a brutal blow to the credibility of the court and is doing what he can to preserve that credibility—or appears to be trying to—while the stakes are relatively low. By doing so, Kavanaugh can form an alliance with Roberts, currying favor with the chief justice (and new swing vote) as a team player.

We’ll know soon enough whether Kavanaugh’s silence on this spate of orders is principled or tactical. He could still rule in favor of the citizenship question down the road and join Gorsuch in carrying water for Wilbur Ross and the Trump administration. Blockbuster cases involving abortion, LGBTQ rights, capital punishment, and Obamacare are also poised to hit the docket, allowing the new justice to pursue a hard-right reactionary agenda if he so chooses. For now, however, Kavanaugh is playing it safe. And that’s good news for anyone who feared the justice would instantly do his benefactor’s bidding on the high court.

Brett Kavanaugh Census Supreme Court
Mark Joseph Stern covers courts and the law for Slate.

Slate · by Mark Joseph Stern · November 5, 2018

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