America's fate rests in the hands of loyal GOP hitman Brett Kavanaugh
If I asked you to name the most unpopular Supreme Court justice, you might choose the venal Clarence Thomas or the perpetually enraged Samuel Alito. In either event, youâd be wrong. Americansâ least popular member of the high tribunal is Brett âI like beerâ Kavanaugh. Poll after poll has shown Kavanaugh taking the honor since his nomination in 2018.
Kavanaugh also holds the honor of being President Donald Trump's favorite justice, an accolade he earned with his dissenting opinion from the courtâs February invalidation of Trumpâs worldwide âreciprocal tariffs.â Kavanaugh is now poised to deliberate on pending voting rights cases and a ruling on birthright citizenship under the 14th Amendment. Itâs frightening but indisputable: The future of American law may rest in his ideological, incompetent hands.
Kavanaughâs initial low public standing stemmed from his snarling televised response to the testimony of psychologist Cristine Blasey Ford, who credibly accused him during his confirmation hearing of sexually assaulting her at a boozy high school party. Declaring his innocence and choking back tears, Kavanaugh described the allegations as âa calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump [and] millions of dollars in money from outside left-wing opposition groups.â Trump quickly came to his embattled nomineeâs rescue in a tweet posted hours after the hearing, calling his testimony âpowerful, honest, and riveting.â
Long before Senate Republicans approved his nomination by a vote of 50-48, Kavanaugh had built a well-earned reputation as a credentialed and loyal Republican hitman, highlighted by his decision to join Ken Starr's Office of Independent Counsel in 1997 to assist in the investigations that eventually led to the impeachment of President Bill Clinton.
Since taking his place on the Supreme Court, Kavanaugh has proven a reliable Trump flunky. But unlike Thomas and Alito, heâs also proven to be an intellectual lightweight.
While in Starrâs service, Kavanaugh penned a lurid memorandum that suggested 10 questions for prosecutors to ask Clinton about his relationship with Monica Lewinsky when he testified before a federal grand jury. Among them:
- âIf Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?â
- âIf Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?â
- âIf Monica Lewinsky says that you masturbated into a trashcan in your secretaryâs office, would she b[e] lying?â
After a brief stint in private practice, Kavanaugh joined the GOP's legal team in the run-up to the Supreme Courtâs infamous Bush v. Gore decision, which handed the presidency to George W. Bush. In 2001, he was rewarded with an associateâs position in the White House counselâs office, and two years later he was nominated to the US Court of Appeals for the District of Columbia Circuit.
Senate Democrats were alarmed at the thought of an enrobed Kavanaugh, and they managed to put the nominee through two confirmation hearings. âAs I look through all of the different issues that you have been involved in as an attorney in public service and the private sector, it seems that you are the Zelig or Forrest Gump of Republican politics,â the normally mild-mannered Sen. Dick Durbin (D-Ill.) remarked in 2004. âYou show up at every scene of the crime. You are somehow or another deeply involved, whether it is Elian Gonzalez or the Starr Report, you are there.â In the end, the Democrats failed to stop Kavanaughâs confirmation in 2006.
During his 12 years on the circuit court, Kavanaugh won praise from right-wing advocacy organizations for a record of overtly pro-business rulings that routinely undercut federal regulations on air quality, consumer protections, and other issues.
Since taking his place on the Supreme Court, Kavanaugh has proven a reliable Trump flunky. But unlike Thomas and Alito, heâs also proven to be an intellectual lightweight, penning few consequential majority opinions of his own and generally following the lead of Chief Justice John Roberts, with whom he voted more than 95% of the time in his first few years on the court.
Recently, however, Kavanaugh has begun to break with Roberts to more closely align with Trumpâsometimes to comical effects.
Consider the interim âshadow docketâ ruling issued last September, Noem v. Perdomo. The courtâs decision lifted a lower-court injunction that had barred Immigration and Customs Enforcement (ICE) agents in Los Angeles from detaining suspected undocumented immigrants based solely on their ethnicity, language, geographic location, and occupations. Like most shadow docket decisions, the Perdomo order was bare-bones, comprising a single paragraph that failed to explain the courtâs rationale, but permitted litigation to continue in the lower courts. Kavanaugh, however, took it upon himself to write a 10-page concurrence filled with misstatements of fact and law, in which he argued without evidence that because 10% of people in the Los Angeles region are illegally present, the âtotality of circumstancesââincluding race, location, and languageâindicated a high probability that such stops would enable ICE to fulfill its important core mission.
He also added, again without evidence, that any such detentions would be basically benign, reasoning:
The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. If the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go.
The concurrence was widely panned as authorizing violations of the Fourth Amendmentâs requirements of individualized suspicion and probable causeâwhich soon became known as âKavanaugh stops.â The criticism became so intense that Kavanaugh was compelled to add a footnote to his concurring opinion in the courtâs December shadow docket ruling that struck down the deployment of the National Guard in Chicago (Trump v. Illinois). âThe Fourth Amendment requires,â he wrote,
that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.
The mea culpa did little to restore Kavanaughâs jurisprudential standing or dignity. In February, his career hit a humiliating low when Chief Justice Roberts publicly rebuked him for essentially cutting and pasting the Trump administrationâs arguments for tariffs into his dissenting opinion.
Itâs not easy to imagine Kavanaugh sinking much lower than he already has, but one thing remains constant: Trumpâs favorite Supreme Court justice has no business casting votes on the most powerful judicial body in the world.
