Justice Anthony Kennedy has announced his retirement, and Trump has nominated Brett Kavanaugh to take his place on the Supreme Court. This isn’t a small deal — despite being personally right-leaning, Kennedy has tended to be the moderate swing vote for some of the more contentious cases that have come before the court. (Abortion rights, same-sex marriage, and affirmative action have all had his signature on them.) In replacing him with Kavanaugh, Trump nails down a solid conservative majority to enshrine his agenda into law and gives us our first-ever Supreme Court Justice Brett.
So what does that mean for us?
Kavanaugh hasn’t really spoken explicitly about Roe v. Wade, but what he has said says a lot about his position. He’s praised late Chief Justice William Rehnquist for, among other things, “stemming the general tide of freewheeling judicial creation of unenumerated rights” (Kavanaugh’s words) that led to the ruling in Roe. During his time on the bench, he ruled against an undocumented 17-year-old who discovered while she was in a shelter that she was pregnant, and who wanted to terminate her pregnancy — luckily, the D.C. Circuit Court reversed his ruling before she passed Texas’s 20-week limit. In his dissent, Kavanaugh said that “the Government has permissible interests in favoring fetal life.”
Kavanaugh said before he joined the D.C. Circuit Court, “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court.” But he’s also said that the principle of stare decisis is not “absolute” — and, of course, as a member of the Supreme Court, he’d have the power to set precedent and not just follow it. And as a textualist and an originalist, he’s not a big fan of the “penumbra” of the 14th Amendment that supports a woman’s right to make medical decisions about her own body. So yeah, Roe v. Wade is toast, as are all the states that have unconstitutional abortion bans hanging out in the waiting room until that ruling is overturned.
He’s against it. I mean, ostensibly, he’s all for it, but if you feel that religious freedom includes the freedom to not be religious, Kavanaugh has some bad news for you. He’s upheld opening prayer and invocation of God at government ceremonies, saying that “stripping government ceremonies of any references to God or religious expression … would, in effect, ‘establish’ atheism.” He’s spoken out in favor of conscience clauses and Hobby Lobby-esque contraception exceptions. And he’s praised Rehnquist for fighting the idea of “a strict wall of separation” between church and state. (Maybe they couldn’t get Mexico to pay for it.)
Kavanaugh’s position on religious exceptions for birth control also opens the door to exceptions for anything else Christians find squicky. We’ve already seen what that looks like in the Masterpiece Cakeshop case, so now we get to see what other discrimination can be visited against LGB people with the defense that that plate of nachos they just ordered was actually a work of art. (Transgender people, of course, already weren’t protected under federal discrimination laws outside of a few vague “Well, I guess it might be unconstitutional” legal rulings. It has yet to be considered by the Supreme Court, and now… just don’t hold your breath, is what I’m saying.) With numerous cases headed the Supreme Court’s way on everything from adoption to the rights of transgender students, he’s going to have lots of opportunities to systematically disassemble LGBT rights.
The most significant case directly affecting LGBT rights of late has been Ogberfell v. Hodges, enshrining the right to same-sex marriage. Justice Stare Decis-ish isn’t likely to be falling all over himself to uphold that right, if his religion is telling him that wedding cakes with two dudes on top make the baby Jesus cry. And that would take us right back to the days when medical decisions, inheritance, adoption, health insurance, and everything else that hinged on marital status was a craps shoot. #MAGA.
Kavanaugh believes that the Second Amendment cements the people’s right to own semi-automatic rifles. He expressed this opinion in his dissent to a ruling by the D.C. Circuit Court upholding the District of Columbia’s ban on most of those rifles. “Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses,” he wrote. (Totally unrelated, but Parkland shooter Nikolas Cruz was arraigned yesterday for gunning down 17 of his classmates with an AR-15. I don’t even know why I mentioned it here. Just came to mind.)
(Not for nothing, but is anyone else intrigued by the number of times his lousy opinion is expressed in the form of a dissent? It’s almost like his positions are consistently at odds with the rule of law under the Constitution and the interpretations of most of the jurists with whom he sits.)
Kavanaugh hasn’t spoken out in favor of gamma radiation to give the president super powers (yet), so at least there’s that. He’s written that sitting presidents should be granted “a temporary deferral of civil suits and of criminal prosecutions and investigations,” which of course isn’t anything that our current president has to think about at the moment. (Kavanaugh also wrote that the president should be allowed to fire members of independent executive agencies without cause, and that he should be able to send troops into war without Congressional approval.)
I’m totally, totally sure this isn’t why Trump nominated him. And I’m totally sure the next 30 years or so will be a paradise of reasonable, reasoned jurisprudence from the highest court of the land. How fucked are we? NOT AT ALL. (Which is to say, entirely.)