2006: Kavanaugh discusses Roe v. Wade

At his 2006 confirmation hearing for the D.C. Circuit Court, Brett Kavanaugh was asked about the landmark abortion rights case.

Posted: Jul 11, 2018 8:32 AM
Updated: Jul 11, 2018 8:43 AM

Brett Kavanaugh is Donald Trump's nominee to fill Justice Anthony Kennedy's "swing" seat on the Supreme Court, known as such for how often his vote was the deciding one on behalf of either the liberal or conservative cohorts of the court on issues ranging from same-sex marriage to the travel ban.

With the Kavanaugh pick, many on the left are now concerned that a more conservative Supreme Court could result in harm to civil liberties and the rolling back of federal programs. While those concerns are not unreasonable, they shouldn't be apocalyptic. The reality is that gay marriage isn't going anywhere, Roe v. Wade will probably not be overturned, and a court with a Justice Kavanaugh could help rein in an executive branch that has become too powerful.

I am a libertarian, and Kennedy's votes aligned with my philosophy more often than any other justice's -- albeit often accompanied by somewhat inscrutable judicial opinions. In addition to his stalwart defenses of free speech (Texas v. Johnson) and federalism (NFIB v. Sebelius) Kennedy was the swing vote in all the major gay rights cases of the past 25 years. When Kennedy arrived on the bench in 1987, same-sex intimacy was illegal in many parts of the country. When he left, gay marriage was legal everywhere. That's a legacy for which he will be justly celebrated.

Yet Kennedy did not so much lead that parade rather than join it. The growing social acceptance of gay rights is one of the great civil rights stories of all time, and it didn't happen because the Supreme Court told us to do it. According to Pew, in 2001, 57% of Americans opposed gay marriage; in 2017 only 32% did.

Those numbers matter to justices, even ones like Kavanaugh. Disrupting expectations and going against widespread public opinion is not something that any justice is likely to do. Overturning gay marriage would require invalidating hundreds of thousands of marriages, and it would wreak havoc with tax statuses, inheritances, property ownership and dozens of other legal relationships that extend from marriage.

Moreover, overturning gay marriage would cause public opinion to shift against the Supreme Court, imperiling the legitimacy of an institution that depends upon the perception of legitimacy to function effectively. According to Gallup, the court hasn't had an approval rating over 50% since 2010. While justices should theoretically do their jobs without concern for public opinion, all the justices are aware that the court could suffer lasting institutional damage if public opinion falls to a level like Congress' dismal 19% approval rating.

No one is more aware of that than Chief Justice John Roberts, and there's no justice on the court that Kavanaugh resembles more than Roberts. Roberts' controversial vote upholding the Affordable Care Act could be explained as a vote to preserve the perceived legitimacy of the court. And, despite voting against gay marriage in Obergefell, Roberts joined a subsequent six-justice majority in smacking down the Arkansas Supreme Court when it seemed to be dragging its feet on implementing the decision. Obergefell was the law, even if he didn't vote for it, and Roberts thought it important that the court — his court — clearly tell the lower courts to follow it.

Even more conservative justices, such as the liberal bête noire Justice Antonin Scalia, were reticent to overturn settled precedent, disrupt expectations, and imperil the legitimacy of the court. Scalia had a theory that some precedents, even if wrong in his view, were so thoroughly a part of our law that justices shouldn't overturn them. As he quipped, "I am an originalist, not a nut." Kavanaugh is a judge who adheres to a similar mantra.

For all these reasons, Roe v. Wade is likely not in peril, either. Recent public opinion polls show that 57% of Americans believe abortion should be legal in all or most cases. Kavanaugh is perhaps the most mainstream conservative of any judge that Trump could have picked, and Scalia's philosophy of judicial restraint has become mainstream conservative thinking. Roe is likely safe.

So, if Roe and Obergefell are safe, what positives might we see from a more conservative court? For one, a more conservative court would rein in an out-of-control administrative state that empowers the executive branch to make sweeping changes in American lives. As it stands now, decades of settled practice can be overturned by just clicking "post." For example, the Obama administration nonchalantly suspended the Affordable Care Act's "employer mandate" in a blog post, despite the fact that the law passed by Congress required qualifying employers to provide health insurance or pay a fine by January 1, 2014.

The Obama administration also claimed that an unpublished opinion letter was sufficient to change the definition of "sex" to "gender identity" in schools all over the country. Whatever you think of transgender rights, and I'm a supporter, or the ACA, "government by blog post, unpublished letter, and tweet" is not something allowed by the Constitution.

And a more conservative court is likely to have less patience for possible Trump shenanigans domestically (although foreign policy is a different story). Last week, a federal district judge appointed by George W. Bush largely blocked the Trump administration's attempt to go after California's "sanctuary cities" laws. Judge John A. Mendez's ruling was quintessentially conservative, based on the constitutional principle that the federal government cannot command states to act. And last September, Reagan appointee Judge Harry Leinenweber ruled that the administration could not withhold unrelated funding from "sanctuary cities" to coerce them to change their policies, another ruling rooted in conservative constitutional principles. That ruling was later upheld by an all-Republican-appointed three-judge panel on the 7th Circuit. Kavanaugh is likely to agree with those judges.

If you're a liberal, a Supreme Court with Kavanaugh is certainly going to disappoint you sometimes, and he'll disappoint me, too. But if he is confirmed, don't be shocked if you're pleasantly surprised by many of the rulings that get his vote.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 512632

Reported Deaths: 10262
CountyCasesDeaths
Harrison34853555
DeSoto33162432
Hinds32556641
Jackson24830389
Rankin22442402
Lee16238242
Madison14874283
Jones14086247
Forrest13741259
Lauderdale12249324
Lowndes11286193
Lamar10644140
Pearl River9707244
Lafayette8827143
Hancock7835132
Washington7550169
Oktibbeha7204138
Monroe6989179
Pontotoc6970109
Warren6849178
Panola6746134
Neshoba6726210
Marshall6653141
Bolivar6440151
Union633897
Pike5924156
Alcorn5862107
Lincoln5525136
George510180
Prentiss500884
Tippah490282
Itawamba4829107
Scott477499
Adams4766125
Tate4748116
Leflore4723144
Copiah455895
Yazoo455591
Simpson4543117
Wayne442772
Covington432895
Sunflower4299106
Marion4265112
Coahoma4227109
Leake413790
Newton395581
Tishomingo381793
Grenada3775109
Stone365666
Jasper340166
Attala337790
Winston317792
Chickasaw313367
Clay311878
Clarke301195
Calhoun284449
Holmes271289
Smith268952
Yalobusha243747
Tallahatchie231453
Greene224749
Walthall221366
Lawrence217840
Perry213356
Amite209557
Webster205148
Noxubee188642
Montgomery181557
Carroll174441
Jefferson Davis173643
Tunica163239
Benton152639
Kemper144941
Choctaw136527
Claiborne134238
Humphreys131139
Franklin124929
Quitman107528
Wilkinson105939
Jefferson96834
Sharkey65121
Issaquena1957
Unassigned00

Alabama Coronavirus Cases

Cases: 844594

Reported Deaths: 16115
CountyCasesDeaths
Jefferson1160612006
Mobile741651379
Madison53255732
Shelby38313368
Baldwin38061589
Tuscaloosa35996641
Montgomery34473781
Lee25541263
Calhoun22582518
Morgan22441406
Etowah20009517
Marshall18771316
Houston17723425
St. Clair16863358
Limestone16123218
Cullman16032303
Elmore15902294
Lauderdale14945306
Talladega14186299
DeKalb12957269
Walker12011380
Blount10700192
Autauga10512157
Jackson10151194
Coffee9412192
Colbert9325208
Dale9013191
Tallapoosa7248201
Russell707465
Chilton7015170
Escambia6951143
Covington6926195
Franklin6337108
Chambers5778142
Marion5400130
Dallas5283209
Pike5114109
Clarke484986
Lawrence4826129
Winston4777110
Geneva4640136
Bibb434094
Barbour369180
Butler3433100
Marengo342393
Monroe336666
Randolph334067
Pickens333188
Fayette329885
Henry320566
Hale317989
Cherokee316963
Crenshaw260477
Washington256952
Cleburne254360
Lamar251253
Clay250869
Macon244764
Conecuh192762
Coosa184647
Lowndes178168
Wilcox177438
Bullock152545
Perry141840
Sumter139041
Greene130245
Choctaw93228
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