Kavanaugh emerges as unlikely liberal hope for Supreme Court swing vote

By Greg Stohr, Bloomberg News on

Published in Political News

WASHINGTON - U.S. Supreme Court Justice Brett Kavanaugh remains anathema to many liberals. The death of Justice Ruth Bader Ginsburg means he also may soon be their best hope to save abortion rights and Obamacare.

Kavanaugh, who prefers narrower rulings than some of his conservative colleagues, would find himself at the court's ideological center if President Donald Trump succeeds in replacing Ginsburg with a staunch conservative. From there he could decide how far, and how quickly, it turns to the right on some of the country's most divisive issues.

"Kavanaugh would by default become the most logical person to play the pivot role," said Carter Phillips, a lawyer at Sidley Austin who has argued 79 Supreme Court cases.

That would mean to some degree supplanting Chief Justice John Roberts, who has held the balance of power for the past two years, largely backing conservative results but joining with the liberal wing to strike down an abortion regulation and preserve the DACA deferred-deportation program.

Confirmed in 2018 after a bitter fight, Kavanaugh is hardly an ideal choice for Democrats, even if they ignore the lingering raw feelings stemming from the sexual assault allegations that almost derailed his nomination. Kavanaugh angrily denied the allegations before winning confirmation on a 50-48 vote.

In his two terms on the court, Kavanaugh has established himself as a consistent conservative. He has backed religious freedoms, voted against LGBT workers and sided with Trump on presidential powers and immigration issues. Kavanaugh has also supported property rights and the death penalty and voted to shield partisan gerrymanders from constitutional challenges.


Unlike fellow Trump appointed Justice Neil Gorsuch, Kavanaugh hasn't shown any inclination to side with the liberal wing and flip the outcome of a blockbuster case. Only once, in an antitrust dispute, has he joined the court's liberals in a 5-4 ruling in an argued case.

When Gorsuch and Roberts voted to interpret federal job-discrimination law as protecting gay and transgender workers this year, Kavanaugh was in dissent. Even as he wrote that gay people "have advanced powerful policy arguments and can take pride in today's result," Kavanaugh said Congress would have to change the law to give them job protections.

In other areas, Kavanaugh has emerged as more of a centrist and an incrementalist than fellow Trump appointee Gorsuch. Kavanaugh has agreed with Roberts more than with any other justice so far, according to statistics compiled by SCOTUSblog.

When he voted in favor of a Louisiana abortion regulation this year, Kavanaugh wrote separately to underscore that he wasn't offering an ultimate verdict on the law. Doctors were challenging a requirement that they get privileges at a local hospital, and Kavanaugh said they hadn't yet proven they would be unable to obtain those rights.


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