The discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement rumors previously circulated, many on the left were fearful of how this would shift the court in the conservative direction (and many still are). Then, as Kennedy failed to join the court’s liberal justices  in any 5-4 decisions this past term, some became skeptical of whether Kennedy was as moderate as he was often portrayed. Over the years, Kennedy did side with the court’s more liberal justices in important rulings and was often the swing vote for this coalition when there was one. If Kavanaugh is confirmed, he is unlikely to play a similar role. The question is rather how far to the right Kavanaugh will push the court.

Measures over time

The recent rhetoric about how Kennedy did not side with the court’s liberals might be overwrought. Although Kennedy was certainly a solid conservative vote in many cases, he was not shy about voting against the court’s conservative bloc, even this past term. Since the 2000 term, if we take this bloc to be composed of Chief Justices William Rehnquist and John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Neil Gorsuch, Kennedy sided against at least three of these justices in the following number of decisions per term.

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The decisions with such a voting composition from the 2017 term include Tharpe v. Sellers, McCoy v. Louisiana, Wilson v. Sellers, Hughes v. United States, Chavez-Meza v. United States and Florida v. Georgia.

Another way of looking at where Kennedy fell on the ideological spectrum over time is through the lens of the justices with whom he voted most frequently. The Martin-Quinn Scores are based on data collected with this in mind. The following figure looks at the distance between Kennedy’s scores and those for the other justices over time. Larger numbers equate to larger differences between Kennedy and respective justices and vice-versa.

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Although Kennedy is often located far away from several of the more liberal justices, Thomas was the justice furthest from Kennedy for the majority of terms since 2000.

Conservative disagreement

Kennedy often but not always sided with the more conservative over the more liberal justices. He also was most often the majority opinion author in cases since 2000 in which he took a position opposed to that of at least three conservative justices.

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Although Kennedy frequently assigned the opinions in such instances, the associate justice who most often performed that function was Justice John Paul Stevens.

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Kennedy did not oppose all of the conservative justices equally in these instances. He was least frequently opposed to Roberts’ position, while he was never on the same side as Rehnquist.

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To be fair, the sample size for Gorsuch is smallest, so we don’t really know where the pendulum would have swung with him. Aside from those justices, in such cases Kennedy was closer to Alito than he was to either Scalia or Thomas. These data give a preliminary sense that Kennedy was a more nuanced justice than a traditional liberal or conservative even in his final year on the court. The next step is identifying whether these decisions cluster into certain case types.

Cases to distinguish Kennedy and Kavanaugh

One of the most interesting questions for court-watchers is predicting, assuming that Kavanaugh is more conservative than Kennedy, how Kavanaugh’s views will diverge from those of Kennedy. To work toward an answer for this, we can first look to when Kennedy voted in opposition to the court’s more conservative justices. The data for these decisions, like those above, are from cases since the 2000 term in which Kennedy was on the opposing side to that of at least three of the more conservative justices. The figure looks at which issues, as coded in the Supreme Court Database, dominated these decisions (based on issues that appeared in at least two such decisions).

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This is a fairly normal list of cases that tracks well with the types of cases the court generally hears. Many of the leading issues involve criminal justice or due process concerns. The Fifth, Eighth, and/or 14th amendments are also central to many of these decisions.

These issues suggest that there are many cases in which Kennedy disagreed with several if not all of the court’s more conservative justices. Kavanaugh would have also likely been on the opposite side of Kennedy in many such decisions if the opportunity had presented itself. I’ll break down some potential differences between Kennedy and Kavanaugh on the issues that appear most frequently in the figure above.

One of Kennedy’s most notable majority opinions dealing with writs of habeas corpus was the Guantanamo detainee case of Boumediene v. Bush. In that case Kennedy wrote that the process afforded certain detainees was insufficient to meet the constitutional threshold. Kennedy wrote:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

Although not directly involved in the Boumediene case, Kavanaugh heard and helped decide several other cases that examined the procedures provided to Guantanamo detainees. In these cases, he tended to side with the government. In Al-Bihani v. Obama, for instance, Kavanaugh voted with a panel that upheld the president’s power in this area. In that decision, Judge Janice Brown wrote:

In light of these provisions of the 2006 and 2009 MCAs, the facts that were both found by the district court and offered by Al-Bihani in his traverse place Al-Bihani within the “part of” and “support” prongs of the relevant statutory definition. The district court found Al Qaeda members participated in the command structure of the 55th Arab Brigade, making the brigade an Al Qaeda-affiliated outfit, and it is unquestioned that the 55th fought alongside the Taliban while the Taliban was harboring Al Qaeda. Al-Bihani’s evidence confirmed these points, establishing that the 55th “supported the Taliban against the Northern Alliance,” a Coalition partner, and that the 55th was “aided, or even, at times, commanded, by al-Qaeda members.” Al-Bihani’s connections with the 55th therefore render him detainable. His acknowledged actions accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders strongly suggest, in the absence of an official membership card, that he was part of the 55th. Even assuming, as he argues, that he was a civilian “contractor” rendering services, those services render Al-Bihani detainable under the “purposefully and materially supported” language of both versions of the MCA. That language constitutes a standard whose outer bounds are not readily identifiable. But wherever the outer bounds may lie, they clearly include traditional food operations essential to a fighting force and the carrying of arms. Viewed in full, the facts show Al-Bihani was part of and supported a group prior to and after September 11 that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers.

The distinctions between Kennedy’s and Kavanaugh’s positions in this and other cases do not necessarily mean that they would vote on opposite sides of the same case. The facts are different in the cases, the court of appeals is constrained by precedent in a different way than the Supreme Court, and the legal parameters changed in the time between the two decisions. That said, the differences suggest possibly disparate outlooks.

Although the area in which Kennedy voted in opposition to the court’s more conservative justices most was habeas corpus, the differences were evident in several other areas as well. Kennedy was not a consistent vote against the death penalty like Justices Stephen Breyer and Sonia Sotomayor, but he sided with the more liberal justices’ positions in several such cases. One example is in Hall v. Florida. In that case he wrote that Florida’s death penalty practice did not pass constitutional muster:

This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.

Although it is hard to generalize from a small set of cases, it is still notable that in Kavanaugh’s separate opinion in Roth v. Department of Justice he wrote the following in opposition to a new death penalty exception:

In the end, the majority opinion distinguishes away a slew of applicable precedents by decreeing a new death penalty exception that overrides Exemption 7(C)’s protection of personal privacy. The result in this FOIA case, by the majority opinion’s own admission, would be different if Bower were serving a sentence of life imprisonment. Of course, the information sought here goes to Bower’s guilt, not to his sentence. The majority opinion’s reasoning, which rests on Bower’s death sentence, is thus an odd fit with the nature of the information sought. Beyond that, the major problem with the majority opinion’s approach is that there is no statutory or precedential support for creating a new death penalty exception to the important privacy protection in Exemption 7(C). Creating any such exception is a decision properly left to Congress and the Executive Branch. In justifying its new death penalty exception, the majority opinion lobs a rhetorical volley, saying that the opposing position would allow the government to deliberately and knowingly kill an innocent man. That is wildly inaccurate. The traditional processes such as habeas, clemency, and the like are constitutionally and statutorily designed to prevent such a travesty of justice. As the Supreme Court said, “the framers of the FOIA” did not have in mind “disclosure of records regarding private citizens, identifiable by name.” Moreover, if federal government officials are violating their legal and ethical disclosure responsibilities in the criminal justice and clemency forums, it is unclear why the majority opinion thinks those same officials would suddenly comply with FOIA orders.

The Supreme Court and D.C. Circuit death penalty cases deal with different facets of the issue. Still, in these opinions we can see Kennedy’s reluctance to take a broad view of when the death penalty is appropriate, while Kavanaugh is not entirely skeptical of the practice.

Kennedy’s and Kavanaugh’s views on criminal sentencing statutes are not totally similar either. In Freeman v. United States, Kennedy describes the need for flexible approach to federal sentencing guidelines:

The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.

The crack-cocaine range here is a prime example of an unwarranted disparity that Section 3582(c)(2) is designed to cure. The commission amended the crack-cocaine guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the commission concluded, “significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.”

By contrast, Kavanaugh takes a more deferential approach in his dissent in In Re Sealed Case:

In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range. To be sure, the Supreme Court’s remedial opinion in Booker was open to multiple readings and could have been interpreted to preserve this kind of Guidelines-centric appellate review. But the Court’s recent decisions in Rita, Kimbrough, and Gall, as I read them, do not permit such an approach; appellate review is for abuse of discretion and is limited to assessing only whether certain procedural requirements were met and whether the sentence is substantively “reasonable.” Recognizing that the governing Supreme Court decisions are not entirely unambiguous, and despite my serious concerns about the sentencing disparities that could well ensue as a result of the current case law, I think our appellate role in the Booker-Rita-Kimbrough-Gall sentencing world is more limited than the majority opinion suggests.

The judge and justice also did not see eye to eye in the area of Fourth Amendment search and seizures. These cases are heavily fact based, however, and so it is difficult to fully distinguish the approaches of the two judges. That said, Kennedy sided with the liberals in several instances holding that searches were unreasonable. This was the case in Ferguson v. Charleston, in which the court in an opinion by Kennedy concurred that certain bodily searches of pregnant mothers were unconstitutional:

I agree with the Court that the search policy cannot be sustained. As the majority demonstrates and well explains, there was substantial law enforcement involvement in the policy from its inception. None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives. The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions, as an integral part of a program which seeks to achieve legitimate, civil objectives. The traditional warrant and probable-cause requirements are waived in our previous cases on the explicit assumption that the evidence obtained in the search is not intended to be used for law enforcement purposes. Most of those tested for drug use under the policy at issue here were not brought into direct contact with law enforcement.”

Kavanaugh has held searches allowable in several instances when they were questioned. Even though cases in this area are not wholly comparable, this suggests that Kennedy and Kavanaugh might have been on opposite sides if they had been on the court at the same time and such a case arose. In United States v. Spencer, for example, Kavanaugh upheld a challenged search as reasonable:

It is true that when officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate for example, if the police learn that “contraband is no longer located at the place to be searched.” But the dismissal here is not such a “fact.” Rather, it was a legal conclusion reached by a different judge in a different matter; such legal disagreement is hardly surprising given that reasonable minds “frequently may differ on the question” of probable cause. Assuming it were a fact, it was not material because it would not negate probable cause. In addition, as Spencer’s counsel correctly acknowledged at oral argument, the dismissal of the D.C. charge against Spencer would not carry estoppel effect in a separate search-warrant proceeding.

Kennedy and Kavanaugh have expressed different views outside the criminal context. Kennedy, for instance, has agreed that federal laws should not necessarily pre-empt state laws. He did not always take this view, though, because he wrote the majority opinion in Arizona v. United States, in which the court held that Arizona’s policy for identifying illegal immigrants conflicted with the federal approach. In Wyeth v. Levine though, Kennedy signed on to Stevens’ decision favoring the state law at issue.

In Saleh v. Titan, Kavanaugh signed onto Judge Laurence Silberman’s opinion, which held in part:

Nevertheless, the court acknowledged that a significant conflict must exist for state law to be preempted. In Boyle, the court observed that the contractor could not satisfy both the government’s procurement design and the state’s prescribed duty of care. It looked to the FTCA’s exemption to the waiver of sovereign immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused,” to find a statutory provision that articulated the “outlines” of the significant conflict between federal interests and state law. Since the selection of the appropriate design of military equipment was obviously a governmental discretionary function and a lawsuit against a contractor that conformed to that design would impose the same costs on the government indirectly that the governmental immunity would avoid, the conflict is created.”

Even with differing perspectives on federalism, Kennedy’s and Kavanaugh’s views are not likely far apart on this subject.

In the takings clause context, Kennedy joined the court’s liberals in deciding that the action in question was not a taking in Murr v. Wisconsin:

Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. Courts must strive for consistency with the central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here.

Kavanaugh has not ruled in many takings clause cases, so we cannot clearly identify his jurisprudential position in this area. In fact, only two opinions in which he voted on the D.C. Circuit directly mention the takings clause. These opinions are El Shifa Pharm. v. United States and Pharm. Care Management v. D.C. Kavanaugh did not write an opinion in either case.

Lastly, Kennedy embraced a broad perspective on due process and equal protection rights in several cases. This might have been most aptly embodied by his majority opinion in Obergefell v. Hodges in which he wrote:

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

Kavanaugh likely does not hold as expansive views on the subject. In Atherton v. D.C. Office of Mayor, a case about jury composition, Kavanaugh signed on to an opinion that held that an equal protection claim was barred. Judge Harry Edwards’ opinion stated:

Atherton’s complaint and supporting materials merely allege that Zachem, Bailey-Jones, and Wynn communicated about his removal before he was dismissed from the grand jury. These bare facts clearly do not raise an inference that Zachem, Bailey-Jones, and Wynn were conspiratorially motivated by some class-based, invidiously discriminatory animus. The complaint also asserts that the defendants “conspired under color of law to illegally remove Atherton… for ethnic purposes,” and that Atherton was illegally removed from the grand jury in violation of the Constitution and D.C. law. But these “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a cause of action under § 1985(3). We therefore affirm the District Court’s dismissal of Atherton’s § 1985(3) claims.

Kavanaugh also appears to favor originalist principles more than Kennedy did. This would likely put him at odds with Kennedy’s pragmatic approach in cases like Obergefell. Kavanaugh’s deference to originalist principles is evident in opinions like his dissent in Heller II, in which he wrote:

In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in the two cases.”

With these distinctions between Kennedy and Kavanaugh, there is little doubt that Kavanaugh will rule more conservatively on the balance than Kennedy did. This will likely occur in matters important to the general public as well as to particular groups. In the abortion context, for instance, Kavanaugh has expressed concerns regarding the underpinnings of Roe v. Wade. Kennedy, by contrast was in the court’s majority upholding much of the Roe decision in Planned Parenthood v. Casey. Kennedy was also in the court’s majority, and he assigned the recent decision in Whole Woman’s Health v. Hellerstedt invalidating Texas’ abortion statute to Breyer.

Still, presidents have not been perfect gauges of Supreme Court justices’ jurisprudential philosophies. Republican Presidents Dwight Eisenhower, Gerald Ford and George H.W. Bush appointed liberal-leaning Chief Justice Earl Warren, Stevens and Justice David Souter, respectively. After these missteps, though, and with the careful vetting of today’s nominees, we are less likely to see such a situation recur. Although we cannot know how Kavanaugh’s true preferences and beliefs will correspond to Kennedy’s until Kavanaugh has several Supreme Court decisions under his belt, with examples like these we can say with a strong degree of certainty that he will likely push the court farther to the right.

This post was originally published at Empirical SCOTUS.

Posted in Nomination of Brett Kavanaugh to the Supreme Court, Empirical SCOTUS, Featured

Recommended Citation: Adam Feldman, Empirical SCOTUS: Expect Kavanaugh to shift the court rightward — how far no one knows, SCOTUSblog (Jul. 10, 2018, 9:21 PM), http://www.scotusblog.com/2018/07/empirical-scotus-expect-kavanaugh-to-shift-the-court-rightward-how-far-no-one-knows/