“I don’t get to pick and choose which Supreme Court precedents I get to follow,” Supreme Court nominee Brett Kavanaugh told the Senate Judiciary Committee on Wednesday. “I follow them all.”
While that’s a nice line, Kavanaugh’s record reveals a judge who is eager to warp precedent to fit his ideological preferences—most flagrantly with regard to guns and abortion. In a pair of major opinions, Kavanaugh proved adept at constraining Roe v. Wade and bolstering D.C. v. Heller, manipulating the law to throttle the liberty of women and aggrandize the rights of gun owners. His precedential chicanery offers clear proof that Kavanaugh will overturn Roe and strike down assault-weapons bans once he reaches the Supreme Court. And he only has to pretend otherwise for a few more weeks.
In 2011, Kavanaugh wrote a dissent arguing that a D.C. law banning certain military-grade assault weapons—namely, semi-automatic rifles like the AR-15—was unconstitutional. How, Democratic Sen. Dianne Feinstein wondered, could Kavanaugh reach that conclusion when the Supreme Court has held only that the Constitution protects the use of handguns in the home?
“In the Second Amendment context,” a poker-faced Kavanaugh began, “the Supreme Court, in the Heller decision, written by Justice Scalia, had held that there was an individual right to bear arms.” Correct! He added that Scalia “pre-identified a number of [gun restrictions] that would be allowed,” including the prohibition of “dangerous and unusual weapons.” Also true. But then Kavanaugh asserted that in order to determine whether a weapon is dangerous enough to be banned, Scalia instructed the courts to examine whether it is in “common use.” Under his reading of Heller, Kavanaugh declared, a weapon cannot be outlawed if it is commonly used by Americans. And because semi-automatic rifles “are widely possessed in the United States,” the District of Columbia has no authority to ban them.
Wait, really? Could it really be that a specific type of gun, even mass shooters’ weapon of choice, gains constitutional protection just because lots of Americans buy it? Not according to Heller. Kavanaugh’s theory rests on a willful misreading of Scalia’s opinion. What the ruling actually says is that “the sorts of weapons protected” are, at a minimum, those “in common use at the time” of the Second Amendment’s ratification. At the time—that means in 1791, not today. Scalia used the phrase common use three times in Heller; in each instance, it is followed by the words at the time. Moreover, this concept did not lie at the heart of Scalia’s opinion. It was, rather, an effort to link his analysis to the 18th century “well regulated militia” described in the amendment.
There’s another reason why Kavanaugh’s fixation on “common use” makes no sense. Two years after Heller, the Supreme Court issued McDonald v. Chicago, holding that states are also barred from banning handguns in the home. (Heller applied only to D.C.) McDonald did not deploy Kavanaugh’s “common use” test or even use that phrase. Instead, it reiterated what Heller had made perfectly clear: The Second Amendment protects handguns, not assault weapons. Yet Kavanaugh ignored this fact in order to craft a new, expansive rule that would deprive citizens of their ability to protect their communities from weapons of war. That isn’t “strictly and carefully [following] the Supreme Court precedent,” as Kavanaugh claimed. It’s distorting precedent to impose your own policy preferences on the law.
Kavanaugh turns out to be pretty good at that, as Democratic Sen. Dick Durbin seemed to imply when he questioned the judge about his dissent in the case Garza v. Hargan. In Garza, the Trump administration attempted to bar an undocumented 17-year-old (known as Jane Doe) being held in a Texas shelter from terminating her pregnancy. The government argued that this prohibition did not constitute an “undue burden” in violation of Planned Parenthood v. Casey, a landmark SCOTUS precedent that prevents the government from creating a “substantial obstacle” to abortion access. Why? Because Jane Doe could simply leave the country or try to find a sponsor who would take custody of her and, perhaps, let her get an abortion. (Doe was 16 weeks pregnant; Texas bans abortion after 20 weeks, and the process of securing a sponsor takes months.)
As a matter of law, the Trump administration’s position was dead wrong. It’s true that the Supreme Court has allowed states to impose special limitations on minors seeking abortions—namely, parental consent or notification. But it has also compelled states to let minors get permission from a judge when asking their parents is impossible or dangerous. As required by Texas law, Doe requested and received this “judicial bypass” from a state judge. And so, under Supreme Court precedent, she discharged the only obligation that states may demand of minors before they get an abortion.
Kavanaugh didn’t see it that way. In a furious dissent, he accused the majority of creating “a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” He would’ve let the administration continue delaying Doe’s abortion while she sought a sponsor (likely in vain). When Durbin challenged Kavanaugh’s abortion-on-demand accusation on Wednesday, the nominee demurred: “I look at precedent. And the most analogous precedent is the parental consent precedent … [that says] minors benefit from consultation about abortion.” Thus, he concluded that the government may force Jane Doe “to consult about the abortion” with a hypothetical sponsor, even if doing so dangerously delays the procedure.
There is a vast chasm between Kavanaugh’s interpretive approaches to Heller and Casey. When evaluating the rights of gun owners, he imbued Heller with an atextual maximalism, twisting its words to prohibit a gun law that he plainly dislikes. When evaluating the rights of a teenager seeking an abortion, he cabined Casey and its progeny to their facts, then kept whittling until nothing remained of their constitutional guarantees. As University of California–Irvine law professor Leah Litman noted, Kavanaugh is an expert at reading pro-choice precedent as narrowly as possible, to the point of disingenuousness if not outright mendacity.
We will hear plenty more from Kavanaugh on Thursday about the timeless beauty and utmost gravity of precedent—about how he hews closely to it and would continue doing so on the Supreme Court. Don’t believe it. Justice Neil Gorsuch said the same thing during his confirmation hearings, then promptly overturned a 40-year-old precedent via his vote in Janus v. AFSCME. Kavanaugh is reading from a script, one he will jettison as soon as he dons his robe at SCOTUS. And no senator, Democrat or Republican, need pretend that he cares any more about precedent than he does about the liberty and dignity of Jane Doe.
One more thing
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