The just-concluded Supreme Court term is generating several narratives: a conservative majority flexing its muscle; an unyielding “originalist” approach to constitutional interpretation; a loss of control by Chief Justice John Roberts, etc. Missing from these assessments is the emerging centrality of Justice Brett Kavanaugh. For example, in each of the year’s two blockbuster cases—one expanding gun rights (New York State Rifle & Pistol Association v. Bruen) and one repudiating abortion rights (Dobbs v. Jackson Women’s Health Organization)—Justice Kavanaugh joined the majority opinion but also added a narrower gloss via a concurring opinion; he was the only Justice to do so in both cases.
In Bruen he reminded that New York’s law was vulnerable largely because it conferred too much discretion on bureaucrats, a flaw that could be fixed (and has been fixed by more than 40 other states), and he repeated language from the seminal District of Columbia v. Heller decision making clear that especially dangerous weapons may be regulated especially. In Dobbs he made clear that not just state legislatures but Congress too had power to regulate abortion, and that the Constitution itself is agnostic over whether abortion should be permitted. He also put himself on record as saying a state could not, consistent with the federal constitutional right to travel, prohibit resident women from going to other states to obtain abortions. And he emphatically said the repudiation of Roe v. Wade does not threaten the vitality of cases protecting contraception and interracial and same-sex marriage. In all these ways, he self-consciously sought to occupy the least conservative slot in the conservative majority.
In this regard Kavanaugh may be channeling his mentor, retired Justice Anthony Kennedy. The two have an intimate professional relationship: Kavanaugh clerked for Kennedy, Kennedy’s retirement from the Court created the vacancy Kavanaugh filled, and many believe Kennedy’s personal support for Kavanaugh helped sway President Trump to pick Kavanaugh. Like Kavanaugh, Kennedy came to the Court with a reputation as a consistently conservative jurist. And overall Justice Kennedy’s record on the Court was reliably conservative. Yet after Justice Sandra Day O’Connor’s retirement in 2006, Kennedy became the Court’s pivot point on many key issues, and for over a decade he was often the conservative most likely to join liberal Justices to create more progressive 5-4 rulings. Kennedy is perhaps best known for authoring four key LGBT equality cases, including the 2015 Obergefell v. Hodges ruling recognizing a constitutional right to marriage equality. No wonder, then, as noted above, in last month’s Dobbs abortion case, Kavanaugh wrote separately and categorically to make clear the repudiation of Roe does not “threaten or cast into doubt” Kennedy’s crowning achievement in Obergefell.
But gay rights was not the only area where Kennedy joined with liberal Justices to create important and righteous constitutional law. Two others stand out: race-based affirmative action, and state constitutional experimentation in the regulation of federal elections.
On affirmative action, in Fisher v. University of Texas in 2016, Kennedy surprised many by writing a majority opinion permitting the University of Texas to use race in undergraduate admissions to assemble a diverse student body. Absent such latitude, Kennedy said, the number of minority students was subject to “consistent stagnation.” And on state constitutional flexibility in federal-election regulation, Kennedy a year earlier crossed Court-wing lines to join RBG’s seminal 5-4 opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC). That case said the U.S. Constitution permitted the people of Arizona, via a direct-democracy amendment to the state constitution, to do congressional redistricting through an independent redistricting commission—over the objections of Arizona’s elected legislative representatives, who had been drawing congressional lines before the voters cut them out.
These two issues—race-based affirmative action and the ability of state constitutions to regulate federal elections in ways the elected state legislatures dislike—will, it turns out, be at the center of next year’s Court’s docket. Affirmative action disputes from Harvard and the University of North Carolina, and a partisan gerrymandering case, Moore v. Harper, (also from North Carolina), in which a state supreme court invalidated a state legislature’s congressional lines on the ground they ran afoul of the state constitution, promise to be as important and contentious as the recent gun-rights and abortion rulings.
I cannot predict what Justice Kavanaugh will do in these two disputes, but I can say that he should preserve the legacy of his former boss in both. Kavanaugh considers himself to be a principled originalist (much more even than Kennedy), and the originalist case against all race-conscious affirmative action under the Fourteenth Amendment seems dubious. The text of the Fourteenth Amendment’s Equal Protection Clause does not forbid the use of race altogether, and the drafters clearly knew how to prohibit race directly, as evidenced by the text of the Fifteenth Amendment, which provides that the right to vote shall not be “denied or abridged on account of race.” Moreover, the ratifiers of the Reconstruction Amendments engaged in race-conscious affirmative action for Black Americans after the Civil War, something so-called “colorblind” Justices have yet to reckon with.
Originalism poses even greater challenges for proponents of the so-called Independent-State-Legislature (ISL) theory being pressed in the North Carolina districting case on which the Court granted review the last day of the term. The theory, about which I have written extensively on this site, most recently here, emanates most directly from the musings of three Justices in the (in)famous Bush v. Gore ruling in 2000. It posits that because the U.S. Constitution refers to state “legislatures” in connection with the regulation of congressional elections (in Article I) and presidential elections (in Article II), elected state legislatures are free from state-court enforcement of state constitutional limits on legislative power when regulating federal elections. In other words, if an elected state legislature were to announce today that in 2024 it will pick presidential electors (to the electoral college) itself without regard to what the state voters desire, even if the state constitution provides that electors shall be chosen by the people, there is nothing any other organ of state government—the governor, the courts (as in the North Carolina case), the people themselves—could do about that.
As I (and my co-author Akhil Amar) have argued comprehensively in a just-published academic article (a full version of which is viewable on SSRN), ISL is violently anti-originalist. Article II (the presidential-election context at issue in Bush v. Gore) doesn’t even say what ISL folks (carelessly) suggest it does; the clear text of Article II empowers “states,” not state “legislatures,” and merely says state “legislatures” “may”—not that they “must” or “shall”—be involved in setting presidential selection rules. More generally, the term “legislature” of a “state” (in both Article I and Article II) simply cannot be understood without reference to the state constitution that creates, defines, and limits such legislature. Precisely who comprises the legislature for each particular purpose, what processes the legislature must use, and what substantive lines the legislature may not cross are all questions that can be answered only by looking at and heeding the state constitutions. No wonder, then, that historical practice by states, directly preceding and directly after the adoption of Articles I and II, is repeatedly and sharply inconsistent with ISL notions.
Justice Kavanaugh was a young lawyer on team Bush during the Florida recount in 2000. And in 2020, right before the Trump-Biden election, perhaps remembering the work he did under tremendous time pressure two decades earlier, Kavanaugh signaled provisional support for ISL notions. But, unlike other conservative members of the Court, he has since pulled back from affirmatively embracing ISL, saying (two months ago) only that ISL backers (and opponents) raise “serious legal arguments.” There is thus reason to hope Kavanaugh will do what (the Court in Bruen and Dobbs said) honorable originalists should do: pay attention to high-quality textual and historical scholarship—and be willing to revisit past instincts that may have been formed without full and careful consideration—in order to avoid (or rectify) “egregiously wrong” readings of the Constitution.
