Jurisprudence

Kavanaugh Ignored Precedent in His Major Abortion Dissent. That’s Part of a Pattern.

Brett Kavanaugh.
Supreme Court Associate Justice Brett M. Kavanaugh.
Jabin Botsford/AFP/Getty Images

Last month, Brett Kavanaugh issued his first opinion as a Supreme Court justice in the unanimously decided case of Henry Schein v. Archer and White Sales. The opinion was straightforward, and nothing about Kavanaugh’s writing style really stood out. On SCOTUSblog, Ronald Mann described the opinion as “succinct and methodical”—an aptly blasé evaluation.

Many commentators fear that Kavanaugh’s latest opinion—his striking dissent earlier this month in June Medical Services v. Gee—is a more indicative signal of the impact that the new justice will have on Supreme Court jurisprudence. A large-scale empirical analysis of Kavanaugh’s D.C. Circuit opinions suggests that this may be a legitimate concern.

In the June Medical Services opinion, Kavanaugh tried to justify his disagreement with the majority’s decision to stay a Louisiana law that would severely restrict women’s access to abortions in that state. Kavanaugh’s dissent cites exactly one other case—Whole Woman’s Health v. Hellerstedt—and only to explain how the facts of the present case are (or may turn out to be) meaningfully different, such that even though a nearly identical Texas statute was deemed unconstitutional in Whole Woman’s Health, the Louisiana iteration of the statute might be just fine. None of the other three dissenters signed onto Kavanaugh’s June Medical Services opinion.

Those who have commented on Kavanaugh’s approach to judicial writing have offered only faint and colorless praise. Law360 described his writing as “clear” and “concise,” and President Donald Trump likewise said that he has “a clear and effective writing style.” Adam Liptak similarly praised Kavanaugh’s first Supreme Court opinion as “crisp and clear.”

The most notable aspects of Kavanaugh’s opinions, though, tend to elude traditional modes of analysis. After subjecting Kavanaugh’s pre–Supreme Court judicial opinions to a large-scale empirical analysis, facilitated by computer algorithms, I found that Kavanaugh cites judicial decisions less than others on the federal bench, even while he cites statutes and constitutional provisions more than others. For many commentators, his June Medical Services dissent amounted to an attack on the Supreme Court’s abortion precedent. And, in the wake of that decision, fears that Kavanaugh cares little about case law seem to be rising.

Given that we don’t yet have much Supreme Court data to rely on, Kavanaugh’s D.C. Circuit opinions likely represent the most promising data source for gaining insight into his approach to opinion writing and to legal authority in particular. A data science approach can reveal significant details that would be difficult if not impossible to detect with the human eye alone. My empirical methods and results are described in more detail in a chapter forthcoming in Computational Legal Studies: The Promise and Challenge of Data-Driven Legal Research, edited by professor Ryan Whalen.

In a previous study using the same approach, I found that Justice Neil Gorsuch’s 10th Circuit opinions stand out from the pack on many stylistic variables. In contrast, Kavanaugh’s D.C. Circuit opinions are average on most measures, which perhaps helps explain why his writing style has received scant attention. However, Kavanaugh’s opinions do possess some notable qualities—qualities that have been largely overlooked.

Perhaps most pressing to consider, given current fears and speculation about Kavanaugh’s jurisprudence, are his relatively infrequent citations of case law. On average, his D.C. Circuit opinions cited 6.6 cases per 1,000 words, whereas opinions by the other judges on that court during the same time period cited on average 8.0 cases per 1,000 words. Meanwhile, Kavanaugh incorporated an average of 9.7 citations of statutory and constitutional provisions per 1,000 words, whereas the other judges averaged 7.2 such citations. Moreover, my results suggest that during his tenure on the D.C. Circuit, Kavanaugh relied decreasingly on cases, but increasingly on statutory and constitutional provisions.

Trends in average citations to cases on the D.C. Circuit Court of Appeals.
Trends in average citations to cases on the D.C. Circuit Court of Appeals. Blue represents opinions not authored by Kavanaugh. Pink represents opinions authored by Kavanaugh.
Graphic and data from Nina Varsava, “Computational Legal Studies, Digital Humanities, and Textual Analysis,” Computational Legal Studies: The Promise and Challenge of Data-Driven Legal Research (Ryan Whalen, ed.) (forthcoming).

Kavanaugh’s citation practices may indicate that he has less care or respect than most judges for precedent, but greater concern for statutes and the Constitution as sources of authority. Moreover, my time-trend analyses, which suggest that Kavanaugh’s deference to case law is on the decline while his deference to statutes and the Constitution is growing, may provide textual evidence of Kavanaugh’s increasingly textualist and originalist philosophy. For what it’s worth, in contrast, my previous study of the 10th Circuit Court of Appeals revealed that Gorsuch’s opinions for that court included fewer citations of cases than his peers’ opinions did, but also included fewer references to statutory and constitutional provisions.

Trends in average citations to statutes on the D.C. Circuit Court of Appeals.
Trends in average citations to statutes and constitutions on the D.C. Circuit Court of Appeals. Blue represents opinions not authored by Kavanaugh. Pink represents opinions authored by Kavanaugh.
Graphic and data from Nina Varsava, “Computational Legal Studies, Digital Humanities, and Textual Analysis,” Computational Legal Studies: The Promise and Challenge of Data-Driven Legal Research (Ryan Whalen, ed.) (forthcoming).

Kavanaugh’s federal appellate opinions were also unusually likely to inspire dissent: His opinions had more dissents than any of his male colleagues on the D.C. Circuit’s and the third-most dissents on the court as a whole. It’s worth keeping in mind that opinions by Kavanaugh’s female colleagues generated more dissents on average than those by the men on the court. Perhaps the women on the D.C. court tend to write more contentious opinions, or maybe their opinions are perceived to be less credible because of some bias. Either way, the gender disparity makes Kavanaugh’s distinction on this measure all the more remarkable.

Chart.
Percentage of D.C. Circuit Court of Appeals majority opinions with dissents, by judge, 2006–18. Male judges in blue (except Kavanaugh, in red), female judges in purple.
Graphic and data from Nina Varsava, “Computational Legal Studies, Digital Humanities, and Textual Analysis,” in Computational Legal Studies: The Promise and Challenge of Data-Driven Legal Research (edited by Ryan Whalen, forthcoming).

Kavanaugh’s lower court opinions also had unusually high standard deviations on many of the features I measured, meaning that his writing is less consistent on these qualities than the writing of his peers. One possible explanation for this variability is that Kavanaugh’s law clerks have more influence than usual over the writing process. Kavanaugh’s high stylistic variability may help explain why commentators have been vague and laconic in their descriptions of his writing: He just doesn’t have much of a style to report.

Kavanaugh’s federal appellate opinions are impressive, however, not only in their variability but also in the rate at which they inspire dissent and their relatively light citation of legal cases. His tendency to cite statutory and constitutional provisions at an increasing rate, and cases at a decreasing rate, might be indicative of a judicial philosophy that is growing more extreme over time. My analysis of Kavanaugh’s D.C. Circuit opinions may provide some evidentiary fuel to the growing suspicion, exacerbated by his dissent in June Medical Services v. Gee, that Kavanaugh will not let precedent stand in his way.

Correction, Feb. 28, 2019: Due to a production error, these charts originally misstated the Y-axis as citations to statutes per 1,000 words rather than citations to cases. The caption to a graph originally also misstated that these were average citations to statutes. They were average citations to statutes and constitutions.