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Supreme Court Update: Kavanaugh Is No Kennedy, and Kennedy Was No Centrist

Even before Kennedy announced his retirement, the Supreme Court was hardly a liberal or even a centrist institution

There is a growing consensus among legal commentators that D.C. Circuit Judge Brett Kavanaugh will move the Supreme Court sharply to the right should the Senate confirm his nomination. Kavanaugh is a loyal Republican operative who has championed conservative causes at every step of his professional career.

Ideologically, Kavanaugh is a product of the right-wing judicial counterrevolution that dates back to a 6,400-word confidential memorandum written in 1971 for the U.S. Chamber of Commerce by the late Supreme Court Justice Lewis Powell Jr. before his own ascension to the bench.

In the memo, which was titled “Attack on American Free Enterprise System,” Powell urged the chamber and business leaders generally to get more involved in the legal system to reverse what he saw as a dangerous liberal drift in American constitutional law. Among other measures, Powell urged the recruitment of lawyers of “the greatest skill” to represent business interests before the Supreme Court, which, under the stewardship of Chief Justice Earl Warren, had moved steadily to the left. Powell wrote: “Under our constitutional system … the judiciary may be the most important instrument for social, economic and political change.”

Eventually, the right embraced another goal: to place business-compliant judges on the courts.

It took a while for Powell’s message to sink in and for the counterrevolution to find its footing, but the right responded with the formation of the Business Roundtable and the Heritage, Koch, Castle Rock, Scaife, Bradley, and Olin foundations, among other organizations, to fund conservative legal causes; and groups like the Pacific Legal Foundation, The Cato Institute, The Federalist Society and the chamber’s own National Litigation Center to implement the causes in litigation. Eventually, the right embraced another goal: to place business-compliant judges on the courts.

Long before he became an appellate judge in 2006, Kavanaugh, now 53, had established himself as one of the counterrevolution’s young stalwarts. After graduating from Yale Law School in 1990, he worked as a clerk for 9th U.S. Circuit Court of Appeals Judge Alex Kozinski and Supreme Court Justice Anthony Kennedy, whom he is slated to replace on the nation’s most powerful judicial body. After his clerkships, Kavanaugh went on to become Whitewater independent counsel Ken Starr’s right-hand assistant, helping to draft Starr’s 1998 report to Congress, which led to the impeachment of President Clinton. Following his stint with Starr, he joined George W. Bush’s White House, eventually becoming the president’s staff secretary.

In the coming months, as the Senate Judiciary Committee convenes its confirmation hearings, Kavanaugh’s judicial opinions, law review articles and public speeches will be parsed with a fine-toothed comb. We’ll learn in detail about his regressive views on a bevy of subjects, ranging from abortion rights, same-sex marriage, the Second Amendment, environmental regulation, consumer protection, voting rights, “religious liberty” and the separation of powers, to the exclusionary rule (the doctrine that bars prosecutors from introducing evidence seized by police in violation of the Fourth Amendment in criminal trials).

We’ll also hear—and with ample justification—that although he clerked for Justice Kennedy, Kavanaugh will be no Kennedy on the bench. Unlike the retiring Kennedy, we’ll be told, Kavanaugh will not be a “swing voter” on the high court, but an unflagging confederate of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Trump’s first Supreme pick, who together occupy the court’s present extreme right-wing cohort.

What we won’t be told, however, is that Kennedy himself, considering his overall Supreme Court tenure and his unseemly ties to the Trump family, isn’t really a centrist. Yes, Kennedy sometimes joined the court’s liberals in high-profile cases. Undoubtedly, his foremost accomplishment as an occasional liberal was his 2015 majority opinion in Obergefell v. Hodges, establishing the constitutional right of gay and lesbian couples to marry—a precedent that Kavanaugh’s elevation will jeopardize.

But Kennedy’s jurisprudence had a dark side as well. In 2000, he joined the court’s shameless 7-2 decision in Bush v. Gore, handing the presidential election to the GOP. In 2008, he joined Antonin Scalia’s 5-4 majority ruling in District of Columbia v. Heller, recognizing an individual’s right to own firearms under the Second Amendment. The same year, he joined the majority to uphold Indiana’s voter ID law in Crawford v. Marion County. In 2013, he signed on to Chief Justice John Robert’s notorious decision in Shelby County v. Holder, which gutted a major provision of the Voting Rights Act.

Worst of all, Kennedy wrote the court’s 2010 majority opinion in Citizens United v. FEC, holding that spending money on elections—even unlimited amounts by for-profit corporations—is a form of political speech and a right protected by the First Amendment that outweighs any public interest in regulating elections.

Worst of all, Kennedy wrote the court’s 2010 majority opinion in Citizens United v. FEC, holding that spending money on elections—even unlimited amounts by for-profit corporations—is a form of political speech and a right protected by the First Amendment that outweighs any public interest in regulating elections.

During the court’s most recent term, Kennedy returned to his conservative roots in a big way. In each of the 19 cases the court decided by a 5-4 margin, Kennedy voted with his Republican brethren. Such cases included the court’s decision upholding President Trump’s Muslim travel ban (Trump v. Hawaii) and its decision striking down the system that public-employee unions use to collect fees from nonunion members (Janus v. AFSCME).

And then there is Kennedy’s curious relationship with the president and his children. As reported by numerous outlets, Kennedy’s son Justin once held a high-ranking position in Deutsche Bank, Trump’s go-to financial institution for high-risk loans.

It also has been noted that both Trump’s daughter Ivanka and son Donald Jr. have long known Justin Kennedy from their work in New York real estate. In April 2017, Politico reported that after Trump’s first speech to Congress in February of that year, the president shook hands with Justice Kennedy and remarked, “Say hello to your boy. Special guy.”

“Your kids have been very nice to him,” Kennedy replied.

“Well,” Trump responded, “they love him, and they love him in New York.”

None of this means, as some have speculated, that Kennedy was actually in the tank for Trump. What it does mean—and this should be shouted from the rooftops, if not on cable news—is that even before Kennedy announced his retirement, the Supreme Court was hardly a liberal or even a centrist institution.

Now, barring a minor political miracle, the court is only going to get worse—much worse—as Kavanaugh moves up to the highest rung on the judicial ladder.

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Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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