Justice Brett Kavanaugh will mark one year on the Supreme Court on Sunday, an anniversary that follows a ferociously contentious confirmation fight roiled by allegations of sexual assault and doomsday warnings that life for Americans would be altered due to the high court’s new conservative majority.
Kavanaugh’s first year on the Supreme Court didn’t yield the seismic shifts predicted. That could change when the justices gather Monday for the start of their next term, which is filled with blockbuster cases involving immigration, abortion, and LGBT rights. Then, Kavanaugh’s presence on the bench — and Justice Anthony Kennedy’s absence — could be felt for the first time.
In the eyes of many, the new Supreme Court justice’s first year differed little from his dozen years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, considered the second-most powerful court in the country.
“We’re seeing him carry out the same kind of decision-making that he did on the D.C. Circuit, which is consistently approaching the Constitution in a conservative, originalist, textualist manner,” Carrie Severino, chief counsel at the Judicial Crisis Network, said.
Kavanaugh, 54, was sworn in as a Supreme Court justice just hours after the Senate, in a Saturday session, confirmed his nomination in a narrow 50-48 vote. His first move was to hire four female clerks, becoming the first Supreme Court justice to have all-women clerks. By that Tuesday, the newest member of the court was on the bench, participating in arguments in cases involving the Armed Career Criminal Act.
Within the marble halls of One First St., it was business as usual. The justices played up their collegiality even as demonstrators protested Kavanaugh’s confirmation outside. Justice Sonia Sotomayor playfully pinched Justice Neil Gorsuch during one line of questioning, and Justice Elena Kagan could be seen conversing with Kavanaugh, whom she had hired at Harvard Law School, before the start of oral arguments.
Severino, who co-authored a book on Kavanaugh’s confirmation process, said many of the justices were “marveling” at the ability of their newest colleague to transition from the fierceness of the confirmation battle to participating in oral arguments a mere two days later.
“It’s really amazing when you’re thinking back on this time last year,” she said. “How on earth do you go from this insane, crazy process to sitting on a week of intense Supreme Court cases virtually overnight?”
Kavanaugh was nominated by President Trump to the Supreme Court in July 2018 following the retirement of Justice Anthony Kennedy, who was the court’s swing vote for more than a decade. The nomination kicked off a bruising confirmation battle, as Kavanaugh’s appointment cemented a conservative 5-4 majority on the Supreme Court.
But the already contentious fight was roiled by accusations from Christine Blasey Ford, a professor from California, that Kavanaugh allegedly sexually assaulted her during a small gathering at a house in suburban Maryland in 1982. Kavanaugh vehemently denied the accusations from Ford and two other women who stepped forward with claims of misconduct.
The FBI conducted a supplemental background investigation into Ford’s allegations, but the probe yielded no corroboration.
The accusations, however, cast a shadow over Kavanaugh’s first year on the Supreme Court and have continued to plague him. Last month, several Democrats running for president called for impeachment proceedings against Kavanaugh after the New York Times published a new allegation of sexual misconduct against him, though the alleged victim had no recollection of the incident.
“It’ll always be an addendum,” said Erwin Chemerinsky, dean of Berkeley Law, who said the parallels between Justice Clarence Thomas and Kavanaugh’s confirmations were “striking.”
“I think that as long as Brett Kavanaugh is on the bench, this will be part of how we see him, just like it’ll always be for Clarence Thomas,” he said. “What we can’t tell is how it will affect Brett Kavanaugh as a justice. One year is not enough to see.”
Severino, though, says she doesn’t believe the accusations or continued pressure will move Kavanaugh. “He’s going to just continue as the judge he was,” she said. “He wouldn’t want to change in one direction or the other in response to it, not turn into a reactionary, not roll over and just give in.”
While experts contend one term on the Supreme Court is not enough to predict what Kavanaugh’s legacy as a justice will be, his dozen years on the high court were a north star.
“So far his record as a Supreme Court justice is in line with what kind of judge he was on the D.C. Circuit and what we thought he would be on the Supreme Court,” said Elizabeth Slattery, a legal fellow at the conservative Heritage Foundation. “It’s early days.”
Still, in the major cases the justices heard last term, including a challenge to Trump’s decision to add a citizenship question to the 2020 census and a pair of partisan gerrymandering cases, Kavanaugh voted with his conservative colleagues.
“What you saw is what you got,” Severino said. “This is part of the reason we have a vetting process that tries to ensure you’ve got someone who has a record on the court, because you know what kind of approach they have to the law.”
In the months following his highly contentious confirmation battle, Kavanaugh appears to have kept a relatively low profile.
He has given public remarks only once, at the annual meeting of the 7th Circuit Bar Association in May, where he appeared alongside Kennedy, for whom he clerked. He is scheduled to speak at The Federalist Society’s National Lawyers Convention Antonin Scalia Memorial Dinner in November.
This summer, the justice taught a two-week course in England for George Mason University’s Antonin Scalia Law School. Students protested his hiring, but the school stood by its decision to hire Kavanaugh.
On the bench, Kavanaugh voted with the majority 91% of the time, the highest of the justices, according to data compiled by Adam Feldman, who analyzes the court. He also agreed with Chief Justice John Roberts in 92% of cases.
Kavanaugh and Justice Neil Gorsuch, who Trump named to the Supreme Court in 2017, agreed in 70% of cases, putting their agreement level toward the bottom among pairs of justices named by the same president in their first term together in the last 50 years, according to Feldman.
“It sort of shows that people who talk about them as though they’re these cookie-cutter, Republican red-meat judges, they are independent, impartial justices with fully developed views of the law,” Slattery said, “and that does not always lead them to the same results.”
All of the conservative justices, including Kavanaugh, joined the court’s liberal bloc at least once for a five-vote majority, Feldman found.
While Kavanaugh joined the high court early in its term, Chemerinsky noted his first year was “unusual because the Supreme Court ducked so many of the hard cases.”
“Because of the cases on the docket this term and because he’s going to be on the bench for the whole term, we’ll get much of a sense of Brett Kavanaugh’s jurisprudence,” he said.
The Supreme Court is set to hear cases involving LGBT rights, Trump’s efforts to end the Deferred Action for Childhood Arrivals program, and the Second Amendment, and is weighing whether to take up numerous legal disputes involving abortion.
The first set of blockbuster cases will come Tuesday, when the justices hear arguments in three cases involving whether Title VII of the Civil Rights Act, which bars workplace discrimination on the basis of sex, provides protections for gay and transgender employees.
The cases, Chemerinsky said, “will show us, is Kavanaugh going to follow in Justice Kennedy’s lead in that important area, or is Justice Kavanaugh going to be significantly more conservative than Justice Kennedy?”
Kennedy, the court’s swing vote for decades, authored the majority opinions in all the major gay rights cases decided by the Supreme Court.
The high court begins its term Monday.
