Conservatives Should Not Be Surprised By Justice Kavanaugh's Voting Pattern With Chief Justice Roberts

For a generation, legal conservatives chanted, "No more Souters." This mantra arose in the wake of the nomination of Justice David Souter, who turned out to be a consistent liberal vote. After NFIB v. Sebelius, the Obamacare case, conservatives adopted a new mantra: "No more Robertses." Never again would conservatives select a Justice who would rewrite a law in the name of judicial restraint. Yet, to replace Justice Kennedy, President Trump managed to select a Justice who has voted with Chief Justice Roberts nearly 95% of the time! Roberts and Kavanaugh are cut from the same cloth. And Kavanaugh consistently votes with Roberts, and the Court's three progressives, to form a majority. But this voting pattern should not come as a surprise. Like with Justice Gorsuch, Judge Kavanaugh's jurisprudence-under-pressure was on full display.

Flash back to 2011, as the constitutional challenges to the Affordable Care Act were trickling up to the Supreme Court. One of the cases, Seven-Sky v. Holder landed before Judge Kavanaugh on the D.C. Circuit Court of Appeals. The other two judges on the panel (Silberman and Edwards) upheld the ACA's individual mandate. This provision, the panel found, could require people to purchase health insurance based on Congress's power to regulate interstate commerce. But Judge Kavanaugh took a very different path based on Congress's taxing power. The analysis here is very complex. Indeed, I devoted an entire chapter of my 2013 book on the Obamacare litigation to Kavanaugh's approach. (You can read an excerpt here.) To over-simplify things, there are four things to know about Kavanaugh's opinion. 

First, Kavanaugh found that the court lacked jurisdiction because the "tax" that enforced the ACA would not be collected until 2014. Critical to that jurisdictional analysis, however, was a finding that the Affordable Care Act in fact imposed a tax, rather than a penalty. Kavanaugh repeatedly referred to a "tax penalty." Having found that the court lacked jurisdiction, Judge Kavanaugh should have simply ended his opinion. But he didn't. He never does. He always keeps writing.

Second, Kavanaugh made a comment in dicta about how the ACA could be put on a surer footing. Specifically, Congress could make "just a minor tweak" to the law, and "eliminate the legal mandate language." Rather than penalizing people who failed to comply with the individual mandate, people without insurance could simply pay a tax to the IRS. The law would shift from a mandate enforced by a penalty, to a choice that resulted in a tax. This change would not be merely one of semantics. This alternative law would be grounded in Congress's broad taxing power, and would avoid the thorny question of whether the federal government could require people to engage in a commercial transaction. 

Third, the federal government expressly invoked Judge Kavanaugh's opinion before the Supreme Court. The Solicitor General argued that no "minor tweak" was needed because the ACA was "materially indistinguishable from Judge Kavanaugh's proposed revision." The argument tracked many of Kavanaugh's observations about how the ACA operates. In the reply brief, the Solicitor General then built on Judge Kavanaugh's observation, and wrote the Court should not construe the ACA to "create[] an independent legal obligation." Rather, the government contended, the ACA as drafted gave people a choice: purchase insurance or don't purchase insurance. And if they chose the latter option, they would have to pay a tax.

Fourth, Judge Kavanaugh's decisions planted the seeds for Chief Justice Roberts's saving construction. Shortly after the case was argued, Harvard Law School Professor Laurence Tribe observed that it was "considerably more plausible to see the law being upheld under the taxing power, as Judge Kavanaugh suggested it would be [as] if the law were interpreted this way." Tribe was right. To save the law, Roberts read the Affordable Care Act in the same fashion as Kavanaugh's tweaked version. Under the so-called "saving construction," the law did not actually impose a mandate to  purchase insurance, but instead merely taxed the uninsured. 

For my book, I interviewed a senior DOJ official who relayed that "Judge Kavanaugh's opinion convinced the Solicitor General's office that the 'tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.'" DOJ credited Judge Kavanaugh with the "assist" for the argument that would save Obamacare.

Judge Kavanaugh's opinion in Seven-Sky was like a carbon copy of his nascent Supreme Court jurisprudence. First, his lodestar is avoiding controversy, especially in polarized cases. During oral argument, Kavanaugh analogized the Obamacare litigation to the New Deal clash between the Supreme Court and President Roosevelt. He asked, "[W]hy should a court get in the middle of that and risk being another 1935 situation"? Now, Justice Kavanaugh's consistent voting pattern with the Chief Justice reflects a similar mode of avoiding controversy. Public perception pervades all aspects of his judging. Indeed, in his recent remarks to the Eighth Circuit judicial conference, Kavanaugh cited his decisions in Allen v. Milligan and Moore v. Harper as evidence that the Court is not "partisan." In both cases, Kavanaugh voted with the Court's progressive wing. To paraphrase Chief Justice Roberts, the Court as an "institution" functions better when there are fewer 5-4 cases, where all the conservatives vote together. And that is apparently how Kavanaugh defines the Court's legitimacy.

Second, Kavanaugh can never fully remove himself from the political process. He consistently offers compromises as a way to signal moderation. In Seven-Sky, he felt compelled to offer Congress advice on how to modify a statute, even after finding that the court lacked jurisdiction. But why? His efforts to reach out to resolve issues that are not properly before the Court are flatly inconsistent with any professed fidelity to judicial restraint. Yet, to this day, Justice Kavanaugh routinely writes concurrences that purport to settle issues that are not properly before the Court, especially in high profile cases involving abortion and guns.

Third, Kavanaugh employed Roberts-esque dexterity to avoid difficult legal questions. After Justice Kennedy announced his retirement, SCOTUSBlog observed that Kavanaugh in Seven-Sky was "willing to look for artful ways to avoid deciding questions he does not want to decide." Artful? More like inventive. None of the parties raised the specific taxing power argument he relied on. Indeed, during oral argument in Seven-Sky, Judge Edwards asked Beth Brinkmann, who headed DOJ Civil Appellate, whether she had read the obscure provision of the tax code that Judge Kavanaugh was asking about. She replied, "No." Rather, Kavanaugh developed a convoluted argument based on the tax code all by himself–an argument that allowed him to duck the most consequential constitutional question in a generation. SCOTUSBlog concluded that Kavanaugh "recognized that the litigation over the ACA was politically fraught for both the judiciary as a whole and for individual judges who might have aspirations to higher courts, and so he decided to find a way out." Kavanaugh surely knew that his future Supreme Court nomination would hinge largely on that decision, and like Chief Justice Roberts, Kavanaugh found a way to avoid striking down the statute. Indeed Kavanaugh apparently had such aspirations for some time. I wrote the chapters of my book with some precision in order to provide a complete record, should Kavanaugh ever be nominated to the Supreme Court. And so it came to be. 

Justice Kavanaugh is performing just as Judge Kavanaugh's record would have predicted. His record was in plain sight for all to see. Recently, Senator Mitch McConnell observed, "Those who have paid attention to his earlier career are familiar with [Kavanaugh's] restrained, case-by-case jurisprudence." (Kavanaugh was not McConnell's preferred pick after Justice Kennedy announced his retirement.) Indeed, at least with regard to Obamacare, Judge Kavanaugh was to the left of his former boss, Justice Anthony Kennedy. The Court's longtime swing vote would have invalidated the entire Affordable Care Act. Those who were responsible for selecting Justice Kavanaugh were no doubt aware of Seven-Sky, but recommended him nonetheless. But we have at least some evidence that Kavanaugh initially met some resistance.

In May 2016, then-candidate Donald Trump released a list of eleven possible candidates to fill the seat caused by Justice Antonin Scalia's passing. Indeed, two names were glaringly absent from that initial list: Judges Brett Kavanaugh of the D.C. Circuit Court of Appeals and Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Both were well-known appointees of President George W. Bush. I can only conclude that Kavanaugh's omission was deliberate–perhaps due to Seven-Sky v. Holder. At the time, the Wall Street Journal Editorial Board wrote that Trump should add Kavanaugh to the list, who "could replace some of the conservative intellectual heft that the Court has lost in Justice Scalia." The Journal did not mention Gorsuch. 

In September 2016, Trump would release the second iteration of the list, now with 21 names. This time, Gorsuch made the cut. But Kavanaugh was still missing. Again, I can only conclude this omission was deliberate. In November 2016, after the election, the Wall Street Journal editorialized once again that Kavanaugh should be added to the list. In January 2017, shortly after the inauguration, President Trump nominated Gorsuch to fill the Scalia vacancy. Ultimately, no one on the initial list would be nominated to the Supreme Court. 

Ten months later, in November 2017, President Trump released the third iteration of his list, which ballooned to twenty-five names. Two conspicuous names made the cut. At long last, Judge Kavanaugh was included. I don't think Kavanaugh had done anything over the prior year to warrant his inclusion. Rather, whatever resistance there was to Kavanaugh on prior lists was overcome. At the time, I thought Kavanaugh was at last added so he could be nominated to the Court. And so he was. When liberals came out in full force to oppose Kavanaugh's confirmation, I chuckled. The worst thing that could have happened to the left would have been for Kavanaugh to have withdrawn. Just about anyone else on the Trump list would have been to Kavanaugh's right, but without the baggage. Nevertheless, he persisted.

Another name was added to the November 2017 list: Amy Coney Barrett, who was confirmed to the Seventh Circuit Court of Appeals only seventeen days earlier. I will discuss Justice Barrett in the next post.