The History Book Club discussion

This thread is dedicated to the discussion of Justice Brett Michael Kavanaugh (114) and all related subjects.



Biography

After one of the most contentious confirmation hearings in US history, Associate Justice Brett M. Kavanaugh was confirmed by the Senate on October 6, 2018, to fill the seat vacated by Justice Anthony Kennedy. The addition of Justice Kavanaugh to the Court marks the first time in over half a century that the Court is comprised of a solid conservative majority.

A native of DC, Kavanaugh attended the prestigious Georgetown Preparatory School before attending Yale College and Yale Law School. He graduated from law school in 1990 and went on to clerk for Judge Walter Stapleton of the US Court of Appeals for the Third Circuit and Judge Alex Kozinski of the Ninth Circuit.

Following these clerkships, Kavanaugh spent one year in the office of then-US Solicitor General Kenneth Starr and then served as a clerk for Justice Anthony Kennedy in 1993–94. Kavanaugh returned to work with Starr at the Office of Independent Counsel, where he led the investigation into the death of Vince Foster, an aide to President Bill Clinton. Notably during his tenure in the Office of Independent Counsel, Kavanaugh helped author the 1998 Starr Report, which outlined 11 grounds for Clinton's impeachment.

After working at the law firm Kirkland & Ellis, Kavanaugh moved to the White House after the election of President George W. Bush and served first as counsel to the president and then as staff secretary to the president.

President Bush first nominated Kavanaugh to the US Court of Appeals for the DC Circuit on July 25, 2003, but his nomination was stalled by Democratic senators alleging that he was overly partisan. President Bush nominated him again in 2006, and despite similar objections by Democratic senators, he was confirmed by a 57–36 vote.

Judge Kavanaugh sat on the DC Circuit from 2006 until 2018, during which time he predictably established a conservative track record on a range of hot-button issues.

Justice Kavanaugh and his wife Ashley have two daughters.

Source: Oyez

Facts:

BORN Feb 12, 1965 Washington, DC

RELIGION Roman Catholic

MOTHER Martha Kavanaugh

FATHER Everett Edward Kavanaugh, Jr.

APPOINTED BY Donald J. Trump

SWORN IN Oct 6, 2018

SEAT 2 PRECEDED BY Anthony M. Kennedy

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
SUPREME COURT OF THE UNITED STATES

Oct 6, 2018 — Present

Brett Kavanaugh Hearings before the Senate with Christine Blasey Ford

Trump's Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford answer questions in the Senate Judiciary committee.

Link:

Source: Youtube

The book that Senator Durbin has given five Supreme Court Justices as well as Brett Kavanaugh:

Taming the Storm: The Life and Times of Judge Frank M. Johnson and the South's Fight over Civil Rights

by Jack Bass (no photo)

Synopsis:

Thrust into the center of a raging storm over civil rights, Frank M. Johnson, Jr., was the youngest federal judge in the country at the time of his appointment in 1955. During his twenty-four years on the district court in Montgomery, Alabama, Johnson handed down a string of precedent-setting decisions that were vastly unpopular at the time but that would prove to have profound consequences for America's future.

Not only did Johnson's trailblazing opinions greatly expand the access of African Americans to their constitutional rights, but his opinions also helped to dismantle discrimination against women, prison inmates, and the mentally ill. Johnson paid a heavy price for his judicial vision, however, for he had to endure public scorn, death threats, and the outrage of a society that felt itself and its values to be under siege. Eventually Johnson prevailed, winning honor even in his native Alabama and a respected place in the history of the civil rights movement. Taming the Storm is the story of an authentic American hero and the era he did so much to define.

A Segment where Kavanaugh did well - on our favorite Federalist Papers:

Judge Kavanaugh on the Federalist Papers

SEPTEMBER 5, 2018 In response to a question from Senator Mike Lee (R-UT), Supreme Court nominee Brett Kavanaugh discussed his favorite Federalist Papers.



Source: C-Span

Opinion analysis: Divided court allows antitrust lawsuit against Apple to continue

By AMY HOWE May 13, 2019

This morning a divided Supreme Court handed a major victory to the plaintiffs in a massive antitrust lawsuit against technology giant Apple. By a vote of 5-4, the justices allowed the lawsuit, brought by a group of iPhone users who allege that Apple is violating federal laws by requiring them to buy apps exclusively from Apple’s App Store, to go forward. In an opinion by its newest justice, Brett Kavanaugh, the court rejected Apple’s argument that the lawsuit should be shut down because the company was selling the apps at prices set by the app developers, so that the iPhone users’ claims were prohibited under the Supreme Court’s antitrust cases.


Justice Kavanaugh with opinion in Apple Inc. v. Pepper (Art Lien)

Today’s decision was the latest chapter in a dispute that dates back several years. It began when the iPhone users filed their lawsuit in a federal trial court in California, which threw the case out. The lower court relied on a 1977 case called Illinois Brick Co. v. Illinois, in which the Supreme Court ruled that triple damages for violations of federal antitrust laws are not available to an “indirect purchaser” — a plaintiff whose claim isn’t that he was personally overcharged, but instead that the defendant overcharged someone else, who passed the extra charge on to the plaintiff. In the trial court’s view, that’s exactly what happened here: App developers paid Apple a 30 percent commission and then passed that 30 percent mark-up on to the iPhone users, which meant that the iPhone users were not direct purchasers from Apple.

On appeal, the U.S. Court of Appeals for the 9th Circuit reversed and reinstated the iPhone users’ lawsuit. The court of appeals regarded the case as much simpler: In its view, Apple is a distributor which sells the apps to iPhone users directly through its App Store. Today a majority of the justices agreed.

The Supreme Court’s decision in Illinois Brick, Kavanaugh explained, “established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers.” Here, it was clear to Kavanaugh (as well as to Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, who joined his opinion) that the iPhone users were direct purchasers from Apple and therefore could bring an antitrust lawsuit against the company, because they “bought the apps directly from Apple.”

Kavanaugh’s opinion for the court rejected Apple’s argument that the iPhone users could not bring their lawsuit because the app developers, rather than the company, set the retail prices that the iPhone users ultimately paid. First, the opinion stressed, such a theory is inconsistent with both the text of federal antitrust laws – which allow “any person” who has been “injured” by an antitrust violator to bring a lawsuit – and with Illinois Brick’s “bright line” between direct and indirect purchasers. Second, the majority explained, if a retailer is violating antitrust laws and consumers are paying higher prices as a result, the consumers’ ability to bring a lawsuit shouldn’t hinge on how the retailer has set up its relationships with suppliers. Third, the majority reasoned, “Apple’s theory would provide a roadmap” for it and other companies to set up their relationships to “evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.”

The majority acknowledged that, as Apple had suggested, it might be hard to calculate the damages that iPhone users have suffered if they ultimately prevail. But, Kavanaugh wrote, that is “hardly unusual in antitrust cases” and certainly not a reason to squelch such lawsuits altogether: “Illinois Brick is not a get-out-of-court free card for monopolistic retailers to play any time that a damages calculation might be complicated.” Nor did the prospect that app developers could also sue Apple, seeking to recover the profits that they might have earned in a competitive retail market, weigh against allowing the iPhone users’ lawsuit to go forward, because “the two suits would rely on fundamentally different theories of harm and would not assert dueling claims to a common fund.”

Justice Neil Gorsuch dissented from the ruling, in an opinion joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Gorsuch criticized as overly simplistic what he characterized as the majority’s “revisionist” view of Illinois Brick. The iPhone users’ claims rest “on just the sort of pass-on theory that Illinois Brick forbids,” Gorsuch concluded. But if all that matters is whether the plaintiff transacts directly with the defendant, Gorsuch suggested, then the court’s rule “exalts form over substance,” and Apple will be able to get around the test by restructuring its contracts so that the iPhone users pay the app developers, who in turn pay a commission to Apple. If the court is going to “begin whittling away” Illinois Brick “to a bare formalism,” Gorsuch complained, it should do so after a more thorough airing of the issues, rather than in a case in which even the plaintiffs affirmatively declined to ask the court to overrule its precedent.

Although today’s decision only allows the lawsuit against Apple to go forward, it could ultimately prove quite costly: If Apple is later held liable on the merits, it could have to pay millions of dollars of damages. And other companies that operate similar “electronic marketplaces” could also find themselves the targets of lawsuits in the future.

Other

by Robert Dittmer (no photo)

Source: Supreme Court of the United States Blog

Supreme Court again declines to take up Second Amendment cases



By Jamie Ehrlich, CNN
Updated 11:45 AM ET, Mon June 15, 2020

Washington (CNN)The Supreme Court declined on Monday to take up several cases regarding the scope of the Second Amendment.

Despite a low hurdle for the right-leaning Supreme Court, the justices turned down petitions from 10 challenges to state laws established to limit the availability and accessibility of some firearms and when they can be carried in public.

It's been over a decade since 2008's landmark 5-4 ruling in District of Columbia v Heller that held the Second Amendment protects an individual's right to keep and bear arms at home for self-defense.

Except for a follow-up decision two years later, the court has not weighed in on Second Amendment rights significantly again.
In April, the court also declined to weigh in on the issue.

Five of the 10 cases the court declined to look at asked the justices to determine whether the Second Amendment allows the government to restrict the ability of citizens to carry a firearm outside the home to those with "good cause" or "justifiable need" to do so.

Two of the cases were high-profile challenges to state laws involving bans on certain semiautomatic firearms and high capacity magazines, one from Illinois and one from Massachusetts. The remaining three cases had a narrower scope, but none of the 10 will be argued before the justices.

Jacob Charles, the executive director of the Center for Firearms Law at Duke Law School, said the court's decision to deny all of the pending Second Amendment petitions came as a surprise.

"The petitions denied today presented some of the biggest open questions in Second Amendment law, including what types of weapons the Constitution protects and how and whether the right extends outside the home," Charles said.

"For now, it appears that a majority of the Court is content to let these issues be sorted out by the lower courts."

Three of the nine justices have been vocal in recent years about their desire for the court to take up a Second Amendment case.

Last month, Justice Brett Kavanaugh expressed his concern that lower courts have been thumbing their noses at Supreme Court precedent on the Second Amendment, saying the court should "address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

Justice Clarence Thomas in 2018 complained that the lower courts were treating the Second Amendment right "cavalierly."

Jonathan Lowy, chief counsel and vice president of pro-gun safety organization Brady: United Against Gun Violence, said the court's decision not to hear any of the Second Amendment cases is "well-reasoned"

"Today's decision is welcome, but we are vigilant that there remains a concerted effort to reverse it and undermine our nation's hard-earned progress in instituting common-sense gun safety measures and that those arguments have found sympathy with several of the Justices," Lowy said in a statement to CNN.

Link to article and video:

Source: CNN

Supreme Court says federal law protects LGBTQ workers from discrimination - Devan Cole byline - By Ariane de Vogue and Devan Cole, CNN - Updated 12:22 PM ET, Mon June 15, 2020



Washington (CNN)Federal civil rights law protects gay, lesbian and transgender workers, the Supreme Court ruled Monday.

The landmark ruling will extend protections to millions of workers nationwide and is a defeat for the Trump administration, which argued that Title VII of the Civil Rights Act that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.

The 6-3 opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court's four liberal justices.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," Gorsuch wrote.

"There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking," the opinion read.

"Today's decision is one of the court's most significant rulings ever with respect to the civil rights of gay and transgender individuals," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

"On its terms, the decision is only about discrimination in the workplace," Vladeck added. "But it inevitably opens the door to a host of other challenges to discrimination on the basis of sexual orientation or transgender status on the ground that it, too, is impermissibly based upon sex. In that respect, only the court's 2015 ruling recognizing a constitutional right to same-sex marriage may be equally as significant."

The LGBTQ community is made of up of approximately 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers, according to UCLA's Williams Institute.

Twenty-two states, plus the District of Columbia have statutes protecting workers based on sexual orientation, according to the Williams Institute. Twenty-one states plus DC have statutes protecting workers from discrimination based on gender identity.

Justice Samuel Alito, one of the court's conservatives, wrote in his dissent that "even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute's terms were understood to mean at that time."

Meanwhile, Justice Brett Kavanaugh, another conservative on the bench, acknowledged the social and political progress achieved by members of the LGBTQ community, but nonetheless dissented.

"They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment," Kavanaugh wrote.

A number of LGBTQ groups celebrated the court's ruling on Monday, including the Human Rights Campaign, whose president, Alphonso David, said in a tweet that the decision is a "landmark victory for #LGBTQ equality."

Sarah Kate Ellis, the president of the LGBTQ advocacy group GLAAD, said in a statement that the decision "is a step towards affirming the dignity of transgender people, and all LGBTQ people."
Presumptive Democratic presidential nominee Joe Biden called the ruling "a momentous step forward for our country."

Remainder of article and video:

Source: CNN

Supreme Court decides not to hear big gun-rights cases, dealing blow to Second Amendment activists

By TUCKER HIGGINS; DAN MANAGAN June 15, 2020



Supporters of gun control and firearm safety measures hold a protest rally outside the US Supreme Court as the Court hears oral arguments in State Rifle and Pistol v. City of New York, NY, in Washington, DC, December 2, 2019. Saul Loeb | AFP | Getty Images

The Supreme Court on Monday said it will not hear appeals of a slew of cases involving gun laws, dealing a blow to Second Amendment activists who seek to expand the rights of gun owners.

In an order released Monday morning, the court denied petitions for appeals of 10 cases.

The cases rejected by the court involved questions of whether laws banning interstate handgun sales in some cases violate the Second Amendment, whether there is a constitutional right to carry a firearm outside the home for self-defense, if Illinois and Massachusetts can ban assault rifles and large-capacity ammunition magazines, and whether a state can limit handgun permits to people who demonstrate a specific need for self-defense.

The denials comes just weeks after the justices declined to issue a substantive opinion in its first Second Amendment case in nearly a decade.

In that case, over a since-repealed New York City handgun regulation, the court said the controversy was no longer active because the measure had been amended by the city.

But several of the court’s conservatives, Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, wrote that they would still have sided with the gun owners challenging the law.

Justice Brett Kavanaugh, who sided with the majority in the case, urged his colleagues to take another Second Amendment case “soon.”

The Supreme Court last weighed the reach of the Second Amendment in a pair of cases in 2008 and 2010 that established the individual right to possess a firearm in the home for self-defense.

Gun rights activists have spent the decade since urging the justices to review whether laws imposing restrictions on carrying guns outside the home and on certain kinds of assault weapons and high-capacity magazines are lawful.

Thomas, in a written dissent Monday, took issue with his colleagues on the Supreme Court rejecting the appeal of a New Jersey business owner, Thomas Rogers, who was challenging his state’s requirement that a person show “justifiable need” before being issued a handgun permit.

Rogers services automatic teller machines in “high-crime areas,” Thomas wrote, and wanted permission to carry a handgun for self-defense.

Thomas note that the Second Amendment protected ”‘the right of the people to keep and bear Arms,‘” but “in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so.”

“One would think that such an onerous burden on a fundamental right would warrant this Court’s review,” Thomas wrote.

“This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights,” he wrote.

“And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way,” Thomas wrote.

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by Joseph Blocher (no photo)

Source: CNBC Politics

Supreme Court says Manhattan DA can get Trump’s tax records, but rejects bid by House Democrats

By TUCKER HIGGINS July 9, 2020 (10:12 AM EDT)

KEY POINTS

- The Supreme Court on Thursday delivered split opinions in two cases over whether President Donald Trump can shield his tax records from investigators, handing a win to the Manhattan district attorney but rejecting parallel efforts by Democrats in the House of Representatives.

- Both cases were decided 7-2, with Chief Justice John Roberts authoring the court’s opinion and joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Neil Gorsuch. Justices Clarence Thomas and Samuel Alito dissented in both cases.


President Trump shakes hands in 2017 with Chief Justice John G. Roberts Jr. (Jim Lo Scalzo / AFP/Getty Images)

The Supreme Court on Thursday delivered split opinions in two cases over whether President Donald Trump can shield his tax records from investigators, handing a win to the Manhattan district attorney but rejecting parallel efforts by Democrats in the House of Representatives.

Both cases were decided 7-2, with Chief Justice John Roberts authoring the court’s opinion and joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Neil Gorsuch. Justices Clarence Thomas and Samuel Alito dissented in both cases.

Both cases are subject to further review by lower courts. The mixed rulings mean the American public is unlikely to learn about Trump’s financial records or tax information before November’s election.

The decisions mark the first time that the nation’s highest court has directly ruled on a matter involving Trump’s personal dealings. Trump has been more secretive with his finances than any president in decades, refusing to release his tax records to the public even as he mounts a bid for reelection.

The cases were decided on the final day of the Supreme Court’s term, which began last October and was extended past its typical end-of-June conclusion as a result of precautions taken against the spreading coronavirus.

“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States,” Roberts wrote in the New York case.

That case stemmed from an investigation being pursued by Manhattan District Attorney Cy Vance Jr. Vance issued a subpoena to Trump’s longtime accounting firm, Mazars, for a wide variety of Trump’s personal and business records, including tax returns, dating back to 2011.

Vance’s office is investigating the hush money payments that Trump allegedly facilitated to two women ahead of the 2016 election, though the purpose for his subpoenas is relatively opaque.

The women have claimed to have had sexual relationships with the president that he has denied. Vance hasn’t said whether Trump is a suspect in his investigation, and he has not indicated any potential charges.

Trump’s attorneys have pushed for an expansive view of presidential immunity in the case.

In one lower court hearing in New York, an attorney for the president said that Trump would theoretically be immune from investigation even if he shot someone on New York’s Fifth Avenue. During the 2016 campaign, Trump claimed that he could “stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.”

In a statement, Vance called Thursday’s decision “a tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law.”

“Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” Vance said.

The congressional cases involved subpoenas issued by Democratic-led committees of the House of Representatives, which sought financial records from Mazars as well as his banks, Capital One and Deutsche Bank.

“This case is different,” Roberts wrote in the opinion handed down Thursday. “Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives.”

“Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity,” Roberts wrote.

The House Oversight Committee sought out the information in connection with investigations into claims made by the president’s former lawyer Michael Cohen that Trump inflated and deflated his assets to suit his needs.

The oversight panel is also investigating Trump’s failure to disclose a $130,000 hush money payment that he owed to the adult film actress Stormy Daniels on his 2017 disclosure form. The Office of Government Ethics has said that Trump should have listed the debt — which he owed to Cohen, for facilitating the payment — as a liability.

The financial services and intelligence committees issued two separate subpoenas to Deutsche Bank seeking information on the president and members of his family, including his children Donald Trump Jr., Eric Trump, and Ivanka Trump. A third subpoena, from the financial services committee, asked Capital One for a wide variety of information on 15 Trump businesses.

The financial services committee is investigating potential foreign money laundering. Rep. Adam Schiff, the chairman of the intelligence committee, has said his committee’s investigation entails uncovering whether “any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates.”

Lower courts in New York and Washington upheld the subpoenas, but the president asked the justices to reverse those rulings.

The consolidated congressional cases are Trump v. Mazars, No. 19-715 and Trump v. Deutsche Bank, No. 19-760. The New York case is Trump v. Vance, No. 19-635.

Link to article and videotape:

Source: CNBC News

EXCLUSIVE: How Brett Kavanaugh tried to sidestep abortion and Trump financial docs cases

By JOAN BISKUPIC July 29, 2020


The Supreme Court in Washington. | Mark Tenally/AP

(CNN) - Supreme Court Justice Brett Kavanaugh urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump's financial records, according to multiple sources familiar with the inner workings of the court.

In the abortion controversy, Kavanaugh wanted the justices to sidestep any ruling on the merits of a Louisiana law that could have closed abortion clinics in the state, CNN has learned. The case marked the first time in four years the justices were taking up the heated subject. Kavanaugh's plan would have ensured the law -- a credentialing mandate for doctors who perform abortions -- would not go into immediate effect but also ensured that the justices would not have to put their own views on the line.

The same would have been true in the fight between Trump and the US House of Representatives. Kavanaugh's idea -- presented to the justices in an internal memo and conversations, sources said -- would have had the high court avoid the subpoena fight over Trump financial documents, based on the judicial principle that courts should stay out of cases involving fundamentally political questions.

While that strategy could have meant the President had to hand over his documents to congressional investigators, sources say the personal fate of Trump did not come up in internal conversations.

Throughout the recent court session, as Kavanaugh revealed a desire to avoid certain thorny dilemmas, the newest justice also demonstrated a pattern of trying to publicly appeal to both sides. His style of accommodation was on display in recent disputes over gay and transgender workers and, separately, undocumented immigrants who came to the US as children.

The details, revealed as part of CNN's series on the justices' private deliberations, show how Kavanaugh is approaching his role on the bench. Behind closed doors, he looks to please dueling factions of the court as he seeks to move beyond the angry and defiant image he projected in 2018.

His searing confirmation hearings, when he denied allegations that he had sexually assaulted Christine Blasey Ford when they were teenagers, remain fresh. He decried the claims as part of a vengeful partisan campaign against him. Having undergone that divisive battle, Kavanaugh, in his writing, appears keenly aware of tenuous public opinion of him and ready to adopt a posture of conciliation with his colleagues as he tries to influence deliberations on cases.

For much of his professional life, the 55-year-old Yale law graduate was laser-focused on the Supreme Court. He had been a law clerk to Justice Anthony Kennedy, assistant to independent counsel Ken Starr and a top legal aide to President George W. Bush. Kavanaugh maintained connections to powerful people who helped him climb the rungs of the judiciary.

In 2018, Trump chose Kavanaugh to succeed Kennedy, convinced by advisers that the Bush loyalist would be true to Trump and his brand of conservatism. Kavanaugh has not turned his back on the politicians who guaranteed his high court ascension, but his writing has suggested he does not want to appear to be a reflexive conservative vote, particularly against women.

Kavanaugh's proposed abortion dodge

In March, Kavanaugh faced a test of the tension between his conservative bona fides and the apparent efforts to revive his reputation among women.

He had been confirmed with crucial support from Republican Sen. Susan Collins of Maine, who said he had promised he would uphold the 1973 landmark Roe v. Wade ruling, which made abortion legal nationwide. Kavanaugh's position on women's reproductive rights became an issue during his Senate hearings because Trump had nominated him to replace Kennedy, the court's crucial fifth vote to keep abortion legal.

On March 4, the court heard oral arguments in June Medical Services LLC v. Russo, a challenge to a Louisiana abortion law that requires physicians who perform abortions at clinics to have "admitting privileges" at nearby hospitals. It would turn out to be the justices' last day of arguments in the courtroom, before the nine went into isolation for the coronavirus pandemic.

A US district judge had determined after a six-day trial that the requirement designed for physicians who typically perform surgery at hospitals would shut down clinics and cut women's access to abortion. Doctors had been unable to secure admitting privileges, the judge said, partly because hospital criteria discouraged the granting of privileges to abortion providers. But the 5th US Circuit Court of Appeals rejected those findings and upheld the law.

When the justices privately discussed the case days after oral arguments, CNN has learned, their vote was 5-4 to reverse the 5th Circuit and strike down the law. Chief Justice John Roberts, a conservative, provided the pivotal fifth vote with liberals to invalidate the law, similar to one struck down in Texas four years earlier.

Liberal Justice Stephen Breyer immediately began drafting the decision, with some guidance from Justice Ruth Bader Ginsburg, who had been a pioneering women's rights advocate before joining the bench. Ginsburg believed laws like Louisiana's lacked valid health benefits, and she had observed during the March arguments that first-trimester abortions are among the safest of medical procedures: "(F)ar safer than childbirth."

In mid-March, Kavanaugh began making his case in a series of private memos to his colleagues, according to two sources, for returning the dispute to a trial court judge to gather more facts on just how onerous the admitting privileges requirement was.

Kavanaugh had laid groundwork for that position in February 2019, when the majority blocked the Louisiana abortion law from taking effect while the lawsuit was pending. Kavanaugh dissented then, saying the controversial law should be enforced. He asserted, contrary to the district judge's findings but in line with the 5th Circuit, that it was not yet clear doctors would not be able to obtain credentials.

Kavanaugh's new suggestion would keep the law blocked in the short term while the case moved back through the legal system. That aspect might not have pleased Kavanaugh's core conservative constituency, which wanted the law enforced.
In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman's constitutional right to end a pregnancy. In the long term, Kavanaugh's demanding approach would make it more difficult to challenge the state physician regulation, meaning it could eventually be enforced down the line.

Kavanaugh directed his suggestions to all of the justices. Yet Roberts might have appeared most open to the idea, based on his own anti-abortion record. Four years earlier, Roberts had voted to uphold a nearly identical physician regulation from Texas. In fact, in his 15 years on the high court, Roberts had never cast a vote to invalidate an abortion regulation. Roberts also might have been similarly reluctant to stir controversy over reproductive rights and looking for a way to sidestep the dilemma.

In the spring of 2020, just months from another presidential election and with the public closely watching what would happen to abortion rights without Kennedy, Roberts also had an incentive to respect the court's 2016 precedent. He held fast to what must have been a difficult vote, for abortion rights, even as he declared that he still believed the 2016 case had been wrongly decided.

Breyer, a 1994 appointee of President Bill Clinton, had written the 2016 decision. In that case and the new Louisiana one, Breyer concluded that the burdens of the admitting-privileges law outweighed any benefits to patients. Breyer produced a first draft in in mid-April, CNN has learned. Ginsburg and his other liberal colleagues, Sonia Sotomayor and Elena Kagan, told him within days that they would sign on.

There were no takers among the justices for Kavanaugh's suggested solution. The liberals were locked in, and the three other conservatives were ready to dissent with no equivocation: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

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by Ruth Marcus (no photo)

Source: CNN

Interesting Lorna.

Lorna, my TBR List thanks you.
Regards,
Andrea

Started with a book then misplaced it, then found it, then finally finished it today with an audiobook. Great read/listen with clearly a lot of behind the scene access from all sides of the confirmation process the public missed.