Surely there’s just one question on everyone’s mind after the Supreme Court ended its term by striking down loan relief, approving discrimination and gutting affirmative action: Are the justices getting along?
Don’t worry, Justice Brett Kavanaugh assured the crowd at a judicial conference Thursday: They are.
“We don’t caucus in separate rooms. We don’t meet separately. We’re not sitting on different sides of the aisle at oral argument, so to speak, on the bench,” the Donald Trump appointee reportedly said at the gathering of judges and lawyers in Minnesota.
“We work as a group of nine — as I’ve said before, as a team of nine,” Kavanaugh continued, noting that the justices eat lunch together after every oral argument and conference. The court, he said, is an “institution of law” rather than one of “partisanship” or “politics.”
It’s the latest naïve (at best) offering from one of our country’s most powerful people. It joins Chief Justice John Roberts’ admission that his most difficult decision ever was putting a fence around the court and Senate Minority Leader Mitch McConnell’s claim the court “is an ideologically unpredictable body that takes cases as they come and produces diverse outcomes.”
Kavanaugh seemed to echo McConnell’s misleading thesis. Politico reported on the justice’s remarks: “In an unusual move, he pointed to several recent rulings that, he implied, show that the court is not under the sway of the Republican Party.” The Trump appointee reportedly cited Allen v. Milligan, where he was in the 5-4 majority declining to further gut the Voting Rights Act, and Moore v. Harper, where he was in the 6-3 majority that didn’t fully embrace the extreme “independent state legislature” elections theory.
Yet, those divided cases hardly show the absence of politics or partisanship on the court. Rather, they remind us those divisions sometimes require an extra layer of analysis, which requires a fuller rendering of the facts than purveyors of neutrality want to provide.
Take the Milligan case. Sure, it was surprising the court sided with voting rights. But putting aside what that says about the court, focusing only on that end 5-4 result ignores the previous shadow docket ruling in the case that went 5-4 the other way, with Kavanaugh in the majority, letting an illegal voting map be used in the 2022 midterms to the GOP’s benefit. And even in the end, Kavanaugh wrote a concurrence to Roberts’ majority opinion suggesting he might not be with the majority in the future. Likewise, Moore v. Harper certainly could have been worse. But even that one “laid landmines for future elections,” as Jessica Levinson wrote for MSNBC Daily last month. There, too, Kavanaugh wrote a concurrence to Roberts’ opinion suggesting he might not be with the Democratic appointees in future appeals that benefit Republicans. And both voting rulings featured Justices Clarence Thomas, Samuel Alito and Neil Gorsuch in dissent, bolstering their positions to the right of Kavanaugh. Indeed, that Kavanaugh was in the majority more than any justice this term, coupled with his perky portrayal of the court as evenhanded, suggests his instincts could be called political more than anything else.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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