WASHINGTON – The subject before the Supreme Court last week was an 1855 treaty giving an Indian tribe the right to travel for trade. The question was whether Washington State has a right to tax what tribal members transport.
Near the end of the hourlong oral argument, Associate Justice Brett Kavanaugh directed a friendly observation to the lawyer representing a tribal business.
“To state the obvious, the value, current value of the land the tribe gave up is enormous, right?” Kavanaugh said.
“It’s a third of the State of Washington, I believe, your honor,” Adam Unikowsky responded.
The brief exchange was emblematic of Kavanaugh’s style during his first month on the high court, which followed a contentious confirmation battle that included accusations of decades-old sexual assault. So far, at least, he has emphasized “common sense” over conservatism.
That was evident the next day, when he asked a Justice Department lawyer about a class action settlement stemming from Google’s disclosure of customers’ internet searches.
“That seems a harm,” Kavanaugh said. “Just as a common-sense matter.”
And earlier this week, he confronted Missouri’s state solicitor over the state’s plan to execute a medically compromised prisoner by lethal injection, despite potential risks.
“Are you saying even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?” Kavanaugh asked. “Is there any limit on that?”
The newest justice was sworn in again Thursday by Chief Justice John Roberts during a brief, formal investiture ceremony at the court attended by President Donald Trump and Washington’s legal cognoscenti. But in a break from tradition taken because of security concerns, he did not descend the courthouse steps afterwards.
‘More Roberts than Gorsuch’
Every new Supreme Court justice takes on the lifetime appointment differently. Associate Justice Clarence Thomas, who survived his 1991 confirmation battle after similar accusations of sexual harassment, went virtually silent on the bench. Last year, Associate Justice Neil Gorsuch made clear he would be his own man, dissenting on principle early and often.
Kavanaugh, by contrast, has sought to blend in seamlessly. He’s been collegial with his colleagues on the left and right. He’s been intently focused during oral arguments, like a student who sits in front and raises his hand often.
Perhaps most significantly – from the limited evidence so far – he has not joined the court’s most conservative justices in public dissent on two major issues. Neither has Chief Justice John Roberts.
“The early signs,” says Ian Millhiser, senior fellow at the liberal Center for American Progress, “suggest that he is more Roberts than Gorsuch.”
After a confirmation process that lasted from early July to early October, Kavanaugh, 53, had good reason to keep a low profile.
He was the second nominee of an unpopular president. He came with a lengthy paper trail – so lengthy that Senate Republicans refused to release it all – that included stints investigating Bill Clinton and serving George W. Bush.
Near the end of the process, he was accused of sexual abuse as a high school student in the 1980s. His angry denial – ultimately delivered at a Senate Judiciary Committee hearing in which he blamed Democrats and liberal interest groups – became an instant “Saturday Night Live” classic.
Kavanaugh’s 50-48 confirmation on Oct. 6 was the narrowest margin in 137 years. Three days later, he was on the bench, hearing two criminal law cases. And he was well-versed in the material, referring at one point to “page 139 of the Curtis Johnson opinion.”
That he chose neither to fire back at his critics from the bench nor appear overly contrite is evidence that Kavanaugh intends to be what he promised at his ceremonial White House swearing-in last month: “a team player on the team of nine.”
“The Supreme Court is an institution of law. It is not a partisan or political institution. The justices do not sit on opposite sides of an aisle. We do not caucus in separate rooms,” he said – words later quoted by Roberts in hopes of allaying Americans’ concerns.
Adam Feldman, who follows the Supreme Court closely as curator of the Supreme Court blog Empirical SCOTUS, said Kavanaugh appears to have chosen an “ostrich approach to begin with.”
“He’s not making any waves at the outset,” Feldman said.
‘Why complicate the law?’
High court justices can be judged by the opinions they write, the votes they take and the comments they make during oral arguments. So far this term, the court has issued only one opinion, and the vote was 8-0. Kavanaugh wasn’t yet on the court to hear the case.
“The written opinions of any justice are the most important part of what they do at the Supreme Court, and we have yet to see any opinions by Justice Kavanaugh,” noted Elizabeth Slattery, a legal fellow at the conservative Heritage Foundation. “It is a bit soon to tell how he’s going to vote.”
Still, the court has been asked several times by the Justice Department to block lower court trials on two hot-button topics: administration efforts to ask about citizenship on the 2020 Census, and a lawsuit aimed at forcing a change in federal policies on climate change.
In each case, the court refused the request, and several conservative justices dissented, including Thomas and Gorsuch. Kavanaugh pointedly did not announce a dissent, which either means he agreed with the court’s action or did not want his opposition known.
The former federal appeals court judge also did not align with liberal Justices Sonia Sotomayor and Stephen Breyer last month when they objected to a scheduled execution in Tennessee. The prisoner, Edmund Zagorski, eventually was electrocuted.
The absence of votes pro or con leaves high court observers with just 15 oral arguments to scour for evidence of Kavanaugh’s intellectual curiosity and ideological inclinations. They show him to be a student of the Constitution, Congress and Supreme Court precedent – but also someone seeking practical solutions.
Faced with an Idaho man’s effort to appeal his convictions on assault and drug charges despite having waived that right in a plea agreement, Kavanaugh said appeals courts like the one he served on for 12 years can handle such disputes.
“I’m not sure there’s any evidence of a problem,” he said. “And if there’s not evidence of a problem, why complicate the law?”
Source: USA TODAY