Brett Kavanaugh

Brett Kavanaugh is a Trump-nominated associate justice of the U.S. Supreme Court. He has served on the court since 2018 and was previously a U.S. circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit. Some have suggested that Kavanaugh holds a more moderate position on the court, as a potential swing vote, but his record suggests otherwise. Kavanaugh has consistently sided with the right-wing faction of the Supreme Court term after term. In the 2020-2021 Supreme Court term, for example, Kavanaugh voted with “the majority in 97 percent of cases decided … more than any other justice.” In the 2021-2022 term he was in the majority opinion 95% of the time. The most recent term, 2023-2024, has proven no different, with Kavanaugh aligning with the majority in 14 out of 15 controversial cases.

Prior to the hearing on his Supreme Court nomination, Dr. Christine Blasey Ford, a research psychologist at Stanford University and a psychology professor at Palo Alto University, alleged Kavanaugh sexually assaulted her. Three other women also accused Kavanaugh of sexual misconduct, though one later recanted. Kavanaugh denied all allegations. He was confirmed to the Court in a 50-48 vote despite credible eye-witness testimony, consistent with prior statements by the witness, that he had assaulted Ford. The FBI failed to fully investigate this and interview other accusers, and it coordinated with Donald Trump’s White House Counsel, Don McGahn, to limit the scope of the FBI’s review and its inaction on numerous tips received.

There were also serious questions about whether Kavanaugh, as a sitting judge and nominee, was coordinating with outsiders, like his friend Ed Whelan of the “Ethics and Public Policy Center” to help orchestrate a completely discredited campaign to try to smear Dr. Ford as confused about the identity of her attacker. She testified that she was “[o]ne hundred percent” certain that Kavanaugh assaulted her. There were also serious concerns that Kavanaugh had known that he would face potential accusers about sexual misconduct and had assembled a group of women to vouch for him and pre-empt any such criticism along with concerns that he would not be a fair judge in legal cases affecting women’s rights.

At the hearing, Kavanaugh angrily attacked the Democratic Senators for considering Dr. Ford’s testimony and denounced her. In response, former Justice John Paul Stevens, who had been appointed by President Ford, took the extraordinary step of withdrawing his support for Kavanaugh, stating “I feel his performance in the hearings ultimately changed my mind,” and that he lacked the temperament to be entrusted with a position on the nation’s highest court.

Additionally, there was substantial documentary evidence that Kavanaugh had lied under oath repeatedly in his three confirmation hearings (in 2004, 2006, and 2018) that he had not received documents stolen from the U.S. Senate about judicial nominations. A partial set of newly available presidential records showed that he had received such memos, letters, files and more from the person known to have taken them, Manuel Miranda, who had been an aide to Senator Orrin Hatch and Majority Leader Bill Frist, who was publicly identified as the key Senate staffer involved after an intensive investigation by the Senate’s own Sergeant-at-Arms.

Between 2004 and 2006, when the GOP-controlled Senate confirmed him to the lower court, Senators asked Kavanaugh several questions about his knowledge of the stolen documents that the Sergeant-at-Arms investigated and he denied he had ever seen them, repeatedly. It was not until his Supreme Court nomination that documents emerged from his own emails contradicting his testimony. When asked by Senators to explain this contradiction, Kavanaugh refused to directly answer any questions about it and referred back to his prior statements.

In 2005, the American Bar Association downgraded its rating for Kavanaugh to be appointed to the U.S. Court of Appeals for the D.C. Circuit from “Well Qualified” to “Qualified.” When he was first nominated to the circuit court, at age 38, Kavanaugh had barely any experience in litigation in the 12 years since he had been admitted to the practice of law.

He had clerked for Justice Anthony Kennedy after graduating from Yale Law School. His longest experience had been aiding Independent Counsel Ken Starr in the controversial investigation into President Bill Clinton. Kavanaugh was notorious for being the main OIC lawyer pursuing right-wing conspiracy theories about the suicide of Vince Foster, who had worked in the White House and was an old friend of Bill and Hillary Clinton. It was also Kavanaugh who was reported to be the instigator behind including the most intimate and lascivious details of Bill Clinton’s sexual conduct in the public report issued by the OIC. Kavanaugh then went to work at Starr’s old law firm in D.C., Kirkland & Ellis.

Kavanaugh then helped George W. Bush in the Bush v. Gore litigation, in which the U.S. Supreme Court blocked the recount of ballots in Florida counties, effectively making Bush the winner, even though a subsequent counting of the ballots showed that Gore actually won Florida and thus should have been sworn in as president. After that 5-4 ruling, Kavanaugh was given the position of Associate White House Counsel to President Bush. Two years later, in 2003, Bush nominated him to the U.S. Court of Appeals for the D.C. Circuit.

[The tactics around Bush v. Gore in some ways also laid out a blueprint for Trump’s “Stop the Steal” efforts. For example, the push to “replace the rule of law with mob rule” was exemplified by the so-called “Brooks Brothers’ riot” where well-dressed paid GOP operatives and Hill staffers rioted at a Miami-Dade County Canvassing Board’s recount of ballots and successfully intimidated the board, and leaving many votes uncounted. The 2021 insurrection in some ways drew from the Brooks Brothers’ riot on a larger and more violent scale in terms of trying to stop the Electoral College vote on January 6, 2021. Similarly, both the Brooks Brothers’ riot and key elements of the January 6 events were seemingly coordinated in part by top GOP insiders.]

NOTABLE RULINGS

Inventing Presidential Immunity from Criminal Prosecution; and Effectively Pardoning Trump

Kavanaugh joined this 6-3 ruling that in effect gave immunity to Donald Trump for any crimes he committed as President that could be construed as official acts of the executive of the United States. While this edict in theory allows Trump to be prosecuted for activities not cloaked as “official acts,” it bars the use of any evidence of his words or deeds related to official acts. It ignores U.S. precedent since our nation’s founding that no person is above the law, including the president. It also ignores the language of the Constitution, which grants no such immunity and specifies that any official can be impeached for “high crimes and misdemeanors,” and the Constitution’s oath of office, which requires that a President “shall take Care that the Laws be faithfully executed.”

Prospectively, this reckless ruling potentially gives license to a future president to use his powers as chief executive and commander-in-chief, including the use of emergency declarations, to dramatically alter the law and the stabilizing norms central to American democracy, our economy, and our way of life (such as limits on the politicization of the Department of Justice and independent agencies, the deployment of immigration police to conduct round-ups, and the use of the military in the U.S.) without fear of criminal prosecution.

Related cases: Fischer v. United States (6-3 ruling limiting the use of obstruction charges against those involved in the violent Jan. 6 insurrection); Trump v. Anderson (5-4 edict restoring Trump to the Colorado ballot despite the 14th Amendment’s bar on insurrectionists holding office.)

Overturning Judicial Deference to Agency Expertise; Limiting Statutes of Limitations

Kavanaugh also joined a series of 6-3 rulings limiting the power of federal agencies and the experts and scientists within those agencies responsible for protecting consumers, workers, and even corporations, with regulations that keep products, food, our climate, medicines, and more safe and viable. In Relentless and Loper Bright, Kavanaugh sided with litigation groups fueled with millions of dollars from Charles Koch’s fortune who sought to overturn the Chevron precedent. Although on the surface the case was about regulation of overfishing that threatens marine stocks, this ruling will allow special interests to challenge regulation promulgated to protect public health, our environment, and our bodily autonomy. Many such interests will likely use “judge-shopping” to find Trump appointees willing to substitute their views for the expertise of civil servants in federal agencies and issue orders suspending rules.

Related cases: Corner Post, Inc. v. Board of Governors of the Federal Reserve System (6-3 decision written by Justice Amy Coney Barrett (supported by Kavanaugh) overturning the statute of limitations that provided that challenges to a federal regulation’s validity must be brought within six years of the rule’s issuance); SEC v. Jarkesy (6-3 ruling striking decades of practice allowing administrative law judges to assess violations of securities law and implicating other areas of the law).

Overturning Roe v. Wade; Eroding Church-State Separation; and Licensing Discrimination

Kavanugh’s confirmation played a key role in the Court overturning Roe v. Wade and federal constitutional protection for abortion in the 6-3 Dobbs ruling in 2022. The strident analysis in that opinion by Justice Samuel Alito calls into question the Court’s landmark rulings in Griswold v. Connecticut (protecting access to contraception) and in Obergefell v. Hodges (protecting marriage equality for LGBTQ+ Americans to marry the person they love). Kavanaugh wrote a concurring opinion for Dobbs where he “trie[d] to walk the thinnest of lines:taking away civil rights, but not in a way that makes his Chevy Chase neighbors hate him.”

In 2024, Kavanaugh wrote the opinion for FDA v. Alliance for Hippocratic Medicine, and while this was a temporary victory, Kavanaugh’s opinion left open “two ways that Republicans who oppose abortion could still ban this drug.” The first path is to have someone file the lawsuit that has a “personal stake” or “standing”in the case. Kavanaugh wrote, “[I]t is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” The second pathway laid out by Kavanaugh asserted that “The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process.” In other words, a Republican-controlled FDA could potentially rescind approval of mifepristone—the most commonly used abortifacient in the U.S.

The Supreme Court further postponed decisions to expand its anti-abortion agenda until after the 2024 election, by dismissing Idaho v. United States, returning the preliminary injunction from the U.S. District Court of Idaho, allowing abortions as stabilizing medical care under the federal Emergency Medical Treatment and Labor Act (EMTALA). Essentially, the right-wing faction of the court vacated the stay they put in place in January 2024, which forced some patients to be airlifted out of the state in order to receive necessary medical care.

Kavanaugh also joined the ruling eroding the separation of church and state by allowing public monies to be spent on private school religious indoctrination and the opinion allowing public school coaches to engage in inherently coercive prayer with players despite long-standing establishment rulings. He also joined in a 6-3 ruling in the 303 Creative case allowing a web designer to claim a religious exemption from anti-discrimination laws based on the website owner’s opposition to same-sex marriage–even though no gay couple had asked her to create a website for them, an example of how the faction dominating the Court has ignored the Constitution’s case or controversy requirement.

Limiting the Voting Rights Act; Allowing Partisanship to Mask Racist Voting Map Drawing

Kavanaugh also joined 6-3 rulings further limiting the power of the Voting Rights Act. In Alexander v. South Carolina State Conference of the NAACP, the faction dominated the court overturned decades of precedent protecting against racial gerrymandering. The ruling allowed a voting map that had bleached more than 30,000 Black residents out of their traditional congressional district based on the claim by the Republican-dominated South Carolina legislature that the even though the maps had a profoundly disparate impact on Black American voters that such maps could not be held unconstitutional or in violation of the Voting Rights Act so long as there were a partisan rationale for the map drawing. This ruling overturned the findings by the lower courts that the map was an illegal racial gerrymander, and it joins a series of rulings by the Roberts’ Court degrading the landmark Voting Rights Act of 1965.

It is also notable that Kavanaugh wrote a concurring opinion in Allen v. Milligan, where the Court ruled that Alabama’s redistricting maps violated the Voting Rights Act (VRA) of 1965. However, Kavanaugh only joined the majority in part and questioned whether the VRA’s “race-based redistricting” can “extend indefinitely into the future.” Alabama Attorney General Steve Marshall suggested that based on “intelligence” available to him, Kavanaugh would be open to rehearing the case as a constitutional challenge to the Voting Rights Act, following the Court’s ruling striking down affirmative action programs at universities.

What was unknown at the time was the “significant connection between Alabama’s post-Milligan map redrawing process, [Leonard] Leo’s powerful national dark money network, and Kavanaugh.” Alabama’s Attorney General’s office held a contract with Consovoy McCarthy, among the Consovoy attorneys listed on the contract is Tyler Green–one of three trustees in charge of a billion-dollar trust called the Marble Freedom Trust, which is helmed by Leonard Leo.

The attorney listed from the Alabama AG’s office is Solicitor General Edmund LaCour, who is married to Alice Shih LaCour. Notably, her Federalist Society profile references her work on confirmation teams at the Justice Department, including working “to elevate Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court.” The source of the “intelligence” Marshall was citing, which is beyond the public concurrence of Kavanaugh, is not known. Marshall is part of the Republican Attorneys General Association (RAGA), which has received millions of dollars from Leo-tied groups, which is the biggest source, by far, of funds to help AGs like him secure power. Marshall also is the director of the Rule of Law Defense Fund, RAGA’s 501(c)(4), that gained notoriety for its robocalls encouraging participation in the rally before the January 6, 2021, Capitol insurrection.

After the ties between Leo’s network and the state of Alabama’s effort to refuse to comply with the Court’s order to redraw the maps consistent with the VRA were exposed, Alabama officials redrew the maps to conform to the requirements of the VRA for minority representation.