Kavanaugh crowned king of concurring opinions as SCOTUS looks to 'reshape the legal system in its own image'

14 July 2023

Although Donald Trump was a one-term president, one-third of the U.S. Supreme Court now consists of justices he appointed: Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett. Trump not only wanted a conservative Supreme Court — he wanted a far-right Supreme Court — and the biggest game-changer was Barrett, who replaced liberal Justice Ruth Bader Ginsburg after her death.

But Kavanaugh has been a game-changer as well, replacing the retired Justice Anthony Kennedy in 2018. Although Kennedy was a right-wing Ronald Reagan appointee, he had a major libertarian streak that asserted itself in his opinions on gay rights, same-sex marriage and abortion rights. Kavanaugh, in contrast, is much more of a social conservative.

The New Republic's Matt Ford, in an article published by The New Republic on July 14, emphasizes that Kavanaugh, during his four and one-half years on the High Court, has been quick to write concurring opinions in majority cases.

"The highest-profile cases at the Supreme Court mostly follow a familiar pattern these days," Ford observes. "There is a majority opinion that's almost always written by one of the Court's six conservatives. There is also a dissenting opinion that's usually written by one of the Court's three liberals. And then, when the stakes are highest, there is almost always a concurring opinion by Justice Brett Kavanaugh — a 'Columbo'-like afterthought tacked on to virtually every major case that the Court hears."

Lt. Columbo was a fictional Los Angeles Police Department (LAPD) homicide detective played by the late Peter Falk on the television show 'Columbo' in the late 1960s and 1970s.

"In the last few months," Ford notes, "Kavanaugh wrote separately — and almost always alone — to explain his majority vote in the Court's major decisions on the Indian Child Welfare Act, the Voting Rights Act, and affirmative action in college admissions. His writings in these cases and in other recent landmark decisions highlight the shifting bounds of the Court's strengthened conservative majority — and how far it may be willing to go to reshape the American legal system in its own image."

Kavanaugh was part of the 5-4 majority that ended abortion as a national right when the High Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization in 2022. Ford cites Dobbs as an example of Kavanaugh's willingness to "limit the scope of majority rulings that he joins — or at least to signal that he won't go any further than the ruling on a particular issue."

Some far-right Christian fundamentalists disliked what Kavanaugh had to say in Dobbs, which the justice framed as a states'-rights decision. Kavanaugh, in essence, said that Dobbs wasn't promoting "either a pro-life or a pro-choice abortion policy" but was simply letting individual states decide whether abortion should be legal or illegal.

"The Court's senior-most justice, (Clarence Thomas), is apparently uninterested in Kavanaugh's caution or half-measures," Ford argues. "In that sense, Kavanaugh's concurring opinions provide a unique window into the Supreme Court's intra-conservative debates."

Read The New Republic's full article on Justice Brett Kavanaugh at this link.

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