U.S. Supreme Court Justice Brett Kavanaugh appears desperate to please irreconcilable ideological factions on the bench. That’s according to a recent CNN profile which casts the court’s newest member as both someone obsessed with his own image and as someone still nursing the wounds inflicted during his blistering 2018 confirmation hearings.
Writing for CNN, Supreme Court biographer Joan Biskupic has penned a (so far) three-part series of leak-sourced stories about the court’s latest term. The pieces have, in essence, scandalized the typically tight-lipped, life-tenured tribunal in recent days.
Some legal experts, however, are talking behind the headlines in an attempt to unravel the leaks. Such pontificators suppose the CNN stories are based on leaks from the conservative wing of the nation’s high court. The leaks, they posit, are keyed to send the following message: Justice Kavanaugh (and others like him) are not the right kind of judges for Republican presidents to promote.
In several recent hot-button cases, Kavanaugh has counterbalanced his votes with the conservative wing of the court by issuing stand-alone dissents that gave rhetorical reassurance to the very parties he ultimately voted against.
Per the latest Biskupic piece, Kavanaugh went even further than the dissents. He reportedly issued a series of internal memos advising the court to effectively punt on the Louisiana anti-abortion law case stylized as June Medical Services LLC v. Russo.
The CNN article outlines his proposal:
Kavanaugh’s new suggestion would keep the law blocked in the short term while the case moved back through the legal system. That aspect might not have pleased Kavanaugh’s core conservative constituency, which wanted the law enforced.
In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman’s constitutional right to end a pregnancy. In the long term, Kavanaugh’s demanding approach would make it more difficult to challenge the state physician regulation, meaning it could eventually be enforced down the line.
In another series of internal high court memos, Kavanaugh reportedly proposed avoiding the merits on the months-long clash between the U.S. House of Representatives and the White House over President Donald Trump‘s tax returns and other financial records. In that case, Kavanaugh is said to have convinced his colleagues to ask the parties whether the political question doctrine applied. If it did, the court would be prohibited from ever ruling on the merits.
In the end, of course, neither of Kavanaugh’s efforts to, as Biskupic terms it, “sidestep the dilemma[s]” held the day.
Speculation about who leaked — and why — has run rampant. Writing in the conservative National Review, Ed Whelan speculated that the leaks were coming from the court’s liberals themselves. In an update, he admitted that some of his initial thoughts were perhaps wrong.
“My assumption is that it’s either a leak from Kavanaugh’s chambers trying to rehab himself and support Roberts, or a leak from Alito/Thomas’ chambers trying to send a message of ‘rock ribbed only!’ to the White House,” offered attorney Matt Marcotte.
So, which chambers is the source of the SCOTUS leakage to CNN? Is it Kavanaugh’s chambers trying to do some image rehab, or is it Alito/Thomas’ chambers trying to send a “TRUE CONSERVATIVES ONLY!” message to the WH?
— Matt Marcotte (@MattMarcotte) July 29, 2020
Federal appellate attorney Raffi Melkonian was in a betting mood. He said: “I’d put some money on it being Alito/Thomas. You never know of course, but none of the others make sense to me.”
“Agreed,” said administrative law expert and Civil Rights attorney Sasha Samberg-Champion in response. “The series has lots of internal thinking of Roberts and Kavanaugh and Gorsuch that, if they wanted this public, they would have put in their opinions. All of this seems tailored to make the three of them look like squishes compared to Alito/Thomas.”
Melkonian further fleshed out the message the attorneys said was being telegraphed: “Right. Like, what’s the purpose of these leaks? I take them to be in support of the [Missouri Sen. Josh] Hawley-you-need-to-appoint-people-who-have-committed-on-abortion quest and related topics.”
[image via Leah Millis-Pool/Getty Images]
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