Justice Brett Kavanaugh joined his liberal peers on the Supreme Court in declining to review a case determining whether states have the right to block abortion providers from their Medicaid programs. Many conservatives are furious, but they shouldn’t be.
“The life of a conservative: Go to war for someone against the Leftist hordes who tried to destroy his life, only to have him screw you over the first chance he gets,” wrote commentator and radio host Jesse Kelly on Twitter. This is dead wrong.
Kavanaugh voted in his mold of a precedent set years ago. In his 2011 dissent in Seven-Sky v. Holder, the then-appeals court judge wrote that federal courts have no right to take up the case of whether the Affordable Care Act’s individual mandate was constitutional.
“For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions. By waiting, we would respect the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions,” wrote Kavanaugh.
Judges and justices ought to follow their jurisprudence, not their political mandates. Even if taking on the case could have struck a blow to abortion, it would have been immoral for Kavanaugh to let politics, not principles, guide his decision-making.
Furthermore, Jesse Kelly’s insinuation that us defenders of Kavanaugh went to “war” for him only to achieve a political end is downright dangerous. I would hope that Kavanaugh’s defenders would have gone to bat for Merrick Garland if a Republican senator leaked an 11th-hour allegation of sexual assault with zero evidence to try and maliciously torpedo his confirmation to the Supreme Court.
The importance of defending Kavanaugh was about so much more than policy. It was a defense of the norm that civil society will not allow people’s careers to be destroyed in the total and complete absence of evidence. Combined with the loss of Roy Moore, the Kavanaugh confirmation established that while there is ample room to rule against accused men in the court of public opinion provided that the accusers supply the preponderance of the evidence, women can’t just make up allegations out of thin air as the Avenatti-backed Julie Swetnick did.
It’s aggravating that Planned Parenthood has retained its stranglehold over taxpayer money, but Trump knew who Kavanaugh was when he picked him, and the Senate knew how he ruled when he confirmed him. He owes the public his faith to conservative jurisprudence, not to conservative politics.
