(Bloomberg) — Four years after angrily denying sexual assault allegations at his Senate confirmation, Justice Brett Kavanaugh remains the US Supreme Court’s lightning rod no matter how many conciliatory opinions he writes.
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Kavanaugh is at the center of the conservative court, joining the majority more than any other justice in the past two terms. He’s less confrontational than some colleagues, often acknowledging the force of the other side’s arguments. In casting key votes to eliminate constitutional abortion protections and expand gun rights, he wrote separately to lay out limits to those rulings.
None of it has mattered, at least to his detractors. Hostility has only grown amid the court’s reversal of the 1973 Roe v. Wade abortion ruling, with protesters regularly targeting Kavanaugh’s home and recently converging at a Washington restaurant where he was dining. He’s still mocked by late-night comedians for his Senate tirade, including his infamous declaration, “I like beer!”
For the critics, he is “a conservative buffoon,” said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center. “Unfortunately by virtue of the sex scandal, whether it was true or not, that will follow him.”
The stench from that controversy explains why Kavanaugh, 57, draws greater ire than former President Donald Trump’s other Supreme Court appointees and the veteran conservatives who have written the most controversial opinions.
In a Marquette University Law School poll in March, 32% of people viewed Kavanaugh unfavorably, compared with 21% favorably, giving him by far the court’s worst net-favorability rating of -11 percentage points. Of the other conservatives, only Justice Amy Coney Barrett, at -1, had a negative net-favorability rating.
The poll numbers if anything understate the vehemence of the opposition. At a recent protest at Kavanaugh’s Maryland home, where he lives with his wife and two teenage daughters, one demonstrator wore a t-shirt saying “stop raping women” and another bore a sign calling for Kavanaugh’s arrest. In the most extreme example, an armed man was arrested outside the house last month and charged with attempted murder.
When he gave a rare public speech in 2019 — at the annual dinner of the Federalist Society, the powerful group that helped engineer the conservative takeover of the Supreme Court — demonstrators outside dressed as characters from “The Handmaid’s Tale” and shouted “Shame!” at attendees. Inside, protesters blew rape whistles at the start of his speech.
Limelight Avoiding
If the protests have gotten under Kavanaugh’s skin, he’s managed to hide it. Even-keeled both on the bench and in his opinions, he’s offered no hint of any resentfulness about his confirmation hearing or his public portrayal.
Unlike Clarence Thomas, a justice who won Senate confirmation in 1991 despite sexual-harassment allegations, Kavanaugh hasn’t dwelled publicly on his treatment by Democrats. He has generally avoided the limelight since his confirmation, speaking publicly only twice, including the Federalist Society speech, which was notable mostly for its blandness.
“It would seem to me a deliberate decision not to do what Justice Thomas has done for these 30 years of continuing to be angry and public and speak about the horrors of his nomination and how unfairly he was treated,” Perry said.
Former colleague Christopher Bartolomucci said Kavanaugh seemed at peace when they saw each other in more private settings several times post-confirmation.
“I did not detect a trace of bitterness or anger or frustration. His head was in a great place,” said Bartolomucci, who worked alongside Kavanaugh in the White House counsel’s office during the George W. Bush administration and is now a lawyer at Schaerr Jaffe in Washington. If the confirmation process affected Kavanaugh, “you couldn’t tell.”
Bartolomucci said the Kavanaugh he knows “is a nice, kind, sweet guy and bears no resemblance to the worst caricatures that came out of the confirmation process.”
Kavanaugh didn’t respond to a request for comment.
‘Political Hit’
Kavanaugh’s confirmation became a national spectacle when Christine Blasey Ford, a California college professor, testified that he had held her down and tried to take her clothes off when they were at a high school party in 1982. The accusation led to a raging and tearful denial by Kavanaugh, who called the accusation “a calculated and orchestrated political hit.”
The testimony left some on the left viewing Kavanaugh as a liar who had gotten away with attempted rape, while others questioned whether he had the temperament to join the Supreme Court. He won confirmation anyway, 50-48. Days later, he began work with an unprecedented all-female contingent of law clerks.
The abortion ruling has renewed the focus on him. After a leak of a draft majority opinion in May, Republican Senator Susan Collins, who voted to confirm Kavanaugh and Justice Neil Gorsuch, accused both nominees of misleading the Senate.
Kavanaugh testified that Roe was “settled as a precedent” and “entitled to respect” under stare decisis, the legal doctrine that requires the court to generally abide by its past decisions. He never explicitly said he wouldn’t overturn Roe.
Rochelle Garza, a lawyer who testified against Kavanaugh in 2018, said it was clear at the time that he wasn’t concerned about precedent. Garza said Kavanaugh ignored Roe when he voted to delay letting her client, an undocumented teenage immigrant, get an abortion while in federal custody.
“I testified against him in his confirmation hearings because I knew exactly what he would do if he got on the Supreme Court,” said Garza, now a Democratic candidate for attorney general in Texas. “And he showed that to us just last month.”
‘Neutral’ Constitution
Kavanaugh said in his abortion opinion that stare decisis sets a “high bar” for overruling precedent. But he said Roe cleared that hurdle, arguing that the Constitution is “neutral” toward abortion and the court has no authority to take sides on the issue.
“By taking sides, the Roe court distorted the nation’s understanding of this court’s proper role in the American constitutional system and thereby damaged the court as an institution,” he wrote. Along the way, he expressed “deep and unyielding respect” for the authors of a key 1992 abortion-rights ruling, including his former boss, the retired Justice Anthony Kennedy.
Kavanaugh had drawn right-wing fire in January after backing the Biden administration’s Covid vaccine mandate for workers in some health-care facilities. But the abortion ruling left conservatives who supported his nomination feeling vindicated.
“It was certainly the Brett Kavanaugh that I was hoping for,” said John Malcolm, director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at the conservative Heritage Foundation. “I think he is a committed originalist and a committed textualist, and I thought he had the strength of his convictions, and I certainly think that that was evidenced this past term.”
Kavanaugh’s opinion included a section that could limit the sweep of the abortion decision. He said the Constitution doesn’t let states bar residents from traveling elsewhere for abortions or retroactively punish people for past procedures. He also said the abortion ruling didn’t cast doubt on separate precedents that protect the rights to contraceptive access and same-sex marriage.
No other justice joined Kavanaugh’s opinion. But because only five voted to overturn Roe, Kavanaugh by himself would probably be able to block any extension of the ruling in future cases.
Kavanaugh did something similar last month when he joined a decision that said states can’t bar average people from carrying a handgun in public. In a concurring opinion joined by Chief Justice John Roberts, Kavanaugh said states could still require people to get a carry license.
‘Hand-Wringing’
Separate opinions have become something of a staple for Kavanaugh, giving him a forum to explain exactly why he took the position he did.
Those opinions “they strike me as a little bit of hand-wringing, but there’s nothing offensive in any of them,” Malcolm said. In both the gun and abortion cases, Kavanaugh joined the entirety of the majority opinion as well.
Melissa Murray, a New York University law professor who testified against Kavanaugh in 2018, said he was trying to cast the court’s rulings as “perhaps less doctrinaire and less extreme than they actually are.”
But she also said Kavanaugh was trying to rein in “the more extreme tendencies” of his conservative colleagues. Whether that effort succeeds will hinge on how much clout he has inside the court, she said.
“It really depends on how he is viewed by his other colleagues,” Murray said. “That, I think, we don’t have a great window into. Do they respect him? Do they respect him as a conservative? Do they take him seriously? I don’t know what the answer to that is.”
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