Kavanaugh Is the Last Hope for Abortion Rights
(Bloomberg Opinion) -- For the first time in 30 years — a legal generation — the Supreme Court is poised to revisit the law of abortion rights in a fundamental way.
The last time, in 1992, amid expectations that Roe v. Wade might be reversed, the right to choose was saved by an unlikely coalition: Justices Anthony Kennedy and Sandra Day O’Connor, both President Ronald Reagan’s nominees, and David Souter, nominated by President George H.W. Bush, wrote a joint opinion in Planned Parenthood v. Casey that preserved the essential holding of Roe, which had made abortion a constitutional right in 1973.
In the decades that followed, Souter became part of the court’s liberal wing. O’Connor and Kennedy became swing justices, by turns controlling the court’s jurisprudence on hot-button topics like affirmative action, detainee rights and religious liberty. The Casey opinion itself became the building block of Kennedy’s unfolding gay-rights jurisprudence.
This time, if the Casey case is not to be overturned, the key swing justice will almost certainly be Brett Kavanaugh. Chief Justice John Roberts has already signaled that he is likely to join the court’s three remaining liberals in voting to sustain the Casey precedent. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have indicated they would vote to overturn Roe.
Justice Amy Coney Barrett might conceivably be open to an argument based on precedent. But her jurisprudence, her background, and the influence of the late Justice Antonin Scalia on her judicial outlook all suggest she is willing to reverse Casey and Roe. And it is almost impossible to imagine her casting the deciding vote to uphold Casey by 5 to 4.
That leaves Kavanaugh, who clerked for Kennedy, remained personally close to him, and observed the path (and power) of the swing justice from a front-row seat. So far, Kavanaugh has weighed in on the abortion issue mostly indirectly.
He wrote a long solo concurrence in a non-abortion case on the question of when it is appropriate to overturn precedent — and left his options open. He tried unsuccessfully to persuade the Supreme Court to avoid another important abortion case — a move that similarly left him free to maneuver in the term ahead.
If Kavanaugh were to write an opinion that preserved Casey, it would become controlling law, even if only Kavanaugh signed it — because it would be the narrowest opinion upholding the precedent. If joined by Roberts and (maybe!) by Barrett, they would be replicating the troika of Kennedy, O’Connor and Souter. The result would be a defining moment in Kavanaugh’s career as a justice, the way Casey was for his old boss.
Weighing the Odds
What are the odds that he might decide to become the new Kennedy — and that this role might lead him to preserve Casey in some form?
On the one hand, Kavanaugh is a politically astute and sophisticated judge who wants to matter. The only way for him to become a significant justice on the court as currently configured is to be the swing voter. If he consistently votes with the other conservatives, he becomes just one of five (or six) votes, without the power to control the law.
As the swing justice, he would often have the power to decide the law on his own. He would be able to influence both conservative and liberal justices in a wider range of cases, because they would know they needed him to win the big cases.
Some evidence suggests that Kavanaugh is indeed attracted to the significance and power that comes from the center. His voting record since joining the court is consistent with an aspiration to become the swing justice. One preliminary statistical study already puts him in the middle for the term that ended in July.
On the other hand, Kavanaugh faces a structural risk if he decides to become a Kennedy-like swing figure on the current court — a risk closely related to his confirmation process and the sexual assault allegation made against the teenage Kavanaugh by Christine Blasey Ford. Simply put, the reputational benefits that Kennedy accrued from his swing justice position may be harder for Kavanaugh to obtain.
Consider a simplified psychological model that could be applied to Kennedy. Over the course of his career, Kennedy managed to alienate many conservatives with some notably liberal opinions — especially the ones in which he gradually articulated a robust theory of equal dignity for gay people. Each time he angered conservatives, he simultaneously entranced liberals, who applauded his arguments in favor of autonomy and equality.
Liberals expressed their gradually developing respect for Kennedy in a range of ways. The most prominent was through the numerous visits he made to law schools to meet with professors and students. On a typical campus visit, Kennedy might give a lecture or judge a moot court. Often he would participate in a law school class.
As I saw firsthand in such situations — including in my own class when he visited — the students showed Kennedy active admiration and appreciation. That had everything to do with his emerging liberal jurisprudence. Professors, myself included, wrote articles about him and occasional tributes to his decisions.
‘A Law-Profession Culture’
Did these interactions, taken as a whole, reinforce Kennedy’s willingness to reach liberal outcomes in a series of high-profile cases? No less a judge of character than his colleague Scalia thought so, hinting in writing that Kennedy’s leftward bent came from a desire to please the professoriate.
Dissenting from Kennedy’s landmark 2003 gay-rights decision, Lawrence v. Texas, Scalia wrote that “today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
To my knowledge, nowhere else in the Supreme Court record does a sitting justice blame (or credit) law professors as a collective for a transformational decision in constitutional law.
Now consider Kavanaugh’s situation. If he were to save Casey, as Kennedy helped to do, he would encounter opprobrium every bit as strong as Kennedy got from the right. Indeed, it might be worse, since Kennedy was an outsider to the mainstream conservative legal movement, whereas Kavanaugh is an insider’s insider in these circles. For him to betray the cause on abortion would be a devastating blow to the movement.
Yet unlike Kennedy, in order to receive praise and approbation for any turn to the center, Kavanaugh would have to overcome the opprobrium that followed his confirmation process. Liberals would have to find a way to praise Kavanaugh notwithstanding their outrage about his alleged conduct when he was 17 and the way he responded to questioning about the episode during his confirmation hearing.
In principle, Kavanaugh should be well-placed to flourish as a swing justice. For many years, while he served as a judge on the U.S. Court of Appeals for the D.C. Circuit, he taught classes at Harvard and Yale law schools. He had a reputation as an extraordinarily well-liked teacher, appreciated by students from the left and center, not just the right, and was repeatedly praised for his balance.
Within the small world of law schools and the handful of judges with a chance of getting on the Supreme Court, these academically successful teaching performances had an identifiable and well understood social meaning. Kavanaugh was positioning himself as a reasonable conservative, one whom liberals should not oppose too strongly if and when he should be nominated to the court.
A parallel might be the institutional position taken by Elena Kagan when she was dean of Harvard Law School and made a sustained public effort to recruit conservative thinkers to the faculty and to encourage conservative students to feel comfortable on campus. Kagan’s approach reflected a genuine commitment to ideological balance.
But it also carried an implicit political meaning, namely that conservatives could trust her to be a reasonable liberal should she be nominated to the court, which happened in 2010. In fact it was Kagan who invited Kavanaugh to be a visiting professor at Harvard. The association served both well.
The point is to show that before being appointed to the Supreme Court, Kavanaugh, like Kennedy, cared about his reputation among law professors and law students. If he were to become the swing justice, he would probably welcome the praise and even acclamation that Kennedy used to get.
His confirmation hearings complicate this picture. Kavanaugh would doubtless like to redirect the conversation around his name to his jurisprudence and away from Ford’s allegation and his response to it. Becoming a swing justice whom liberals admire and need might well be the best way to change the conversation.
If Kavanaugh wants to achieve something like a sea change in how he is perceived, establishing himself as a swing justice by saving Casey is his best opportunity to start the process.
Never again in Kavanaugh’s judicial career is the legal left likely to be so worried and vulnerable as it is now, with abortion rights in the balance. Whether the Constitution protects a woman’s right to choose is the single most controversial constitutional question of the last half-century. How the justices decide will be definitional for them, for the court and for the country.
Kavanaugh has the chance to redefine himself by reaffirming Casey as binding precedent. In the process, he could still chip away at abortion rights, perhaps considerably. Under Casey, states may not impose an “undue burden” on the right to choose. That language, deliberately vague, might be interpreted much more restrictively than it currently is.
Kavanaugh could therefore give something to the right by narrowing the meaning of what counts as an undue burden, while nevertheless declining to hold that Roe was wrong the day it was decided and that Casey was therefore wrong to uphold it as precedent.
At the same time, if he were to join an opinion to strike down Casey and Roe, there would probably be no turning back. The option of becoming a more centrist swing justice would exist only at the margins, not in the cases that matter to most people.
Kavanaugh surely also knows that, even if he does pull a Kennedy, liberals might be slow to praise his jurisprudence. Since his confirmation hearings, he has not yet been publicly invited back to the law school campuses where he was a popular teacher.
At the hearing itself, he told Democratic senators that “I love teaching law, but thanks to what some of you on this side of the committee have unleashed, I may never be able to teach again.” (Since then, he has taught at the Antonin Scalia Law School, a conservative-leaning institution associated with George Mason University.)
Risks and Rewards
The risk for Kavanaugh is that if he becomes the swing justice he might lose his friends on the right without gaining any friends on the other side. In a worst-case scenario, that could leave Kavanaugh metaphorically friendless. That is a difficult place for a Supreme Court justice to be, given the isolating nature of the job. It would be doubly difficult for someone as outgoing as Kavanaugh, who thrives on social interaction.
Liberals who want Kavanaugh to take up Kennedy’s mantle need a way to send him the message that if he occupies the center, his jurisprudence will be taken seriously and praised notwithstanding his confirmation hearing. In a polarized political atmosphere, sending this message is tricky, to say the least. No one can confidently guarantee how campus politics will interact with constitutional and national politics.
Meanwhile, all conservatives have to do is quietly remind Kavanaugh that they have his back and that they are his true political community. He could maintain an active intellectual and social life within conservative legal circles, as Thomas does. If Thomas is still bothered by the events of his confirmation process 30 years ago, he does not show it. But he also avoids contact with the liberal legal world that continues to hold him in low regard.
In the history of the Supreme Court, there are a number of turnarounds much more remarkable than the one Kavanaugh has the chance to pull off. In the immediate aftermath of his own rushed confirmation process in 1937, Justice Hugo Black was revealed to have been a member of the Ku Klux Klan. He redeemed himself by becoming a staunch supporter of striking down segregation as unconstitutional.
His vote in Brown v. Board of Education alienated some old friends in Alabama. But it helped make Black into a constitutional hero and giant, and turned his one-time Klan membership into a footnote rather than a defining aspect of his judicial legacy.
Kavanaugh is a student of the Supreme Court as an institution and of the justices as human beings who operate within it. He knew and knows Kennedy intimately. In Thomas, he can see the costs of choosing to accept a kind of permanent, constrained right-wing existence.
If Kavanaugh chooses to become the new Kennedy by saving Casey, it will be one of the most electrfying moments on the court since the 1992 decision itself. It will immediately quell voices on the left talking about court-packing. And who knows? It might even turn the drama of Kavanaugh’s confirmation hearing into a footnote.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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