On October 6, Judge Brett Kavanaugh was narrowly confirmed by senators to serve as a Justice of the Supreme Court of the United States after a week-long controversial confirmation battle.
Although this marks the end of a polarizing confirmation hearing, it is only the beginning of Brett Kavanaugh’s lifetime tenure on the highest court in the United States. What does his confirmation mean for the future of women’s reproductive rights, gun laws, and investigations of the president? Looking back on some of Kavanaugh’s previous comments provides some clues on how he is likely to vote.
Replacing Justice Anthony Kennedy, previously a swing vote and an advocate of individual freedoms, Kavanaugh’s confirmation could have drastic effects on abortion rights. In 1992, Kennedy’s swing vote preserved Roe v. Wade in a 5–4 decision known as Planned Parenthood v. Casey. More recently, Kennedy voted to affirm the right to choose as fundamental in the 2016 case of Whole Woman’s Health v. Hellerstedt.
Kavanaugh’s past statements about abortion rights, however, show mixed signals. Kavanaugh told Senator Susan Collins, who was a key vote to approve his nomination, that he viewed Roe v. Wade as “settled law.” Despite his words, Kavanaugh voted against providing an abortion to an undocumented minor in government custody and has expressed hostility to Roe v. Wade in the past. These actions suggest Kavanaugh could provide a critical fifth vote to the anti-Roe wing of the court, along with Justices Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch.
However, even if the court decided to overturn Roe, it would not make abortion illegal right away. Instead, the court would likely say that states are allowed to restrict abortion however they see fit. In the Supreme Court, only four justices have to vote to hear a case, and with multiple abortion cases currently pending, the court could vote on abortion rights soon.
Kavanaugh’s elevation to the Supreme Court will also impact the future of women’s rights movements like the #MeToo movement and influence the way citizens will vote in the midterm elections.
History teacher Carlos Angulo attended Yale Law School with Kavanaugh. He said he thinks the circumstances under which Kavanaugh was confirmed could have one or two effects.
“It could embolden the #MeToo movement because people will be more active in opposing the kinds of things he was accused of doing,” Angulo said. “But people who are defending him could be more outspoken about defending what he did.”
Counselor Amy Killy organized the GDS Summit on Sexual Assault and Consent that helps raise awareness and educate nearby independent and public schools like Georgetown Prep, Kavanaugh’s alma mater.
“The hearings were very jarring for most people because it felt like we made so much headway on this issue, but the idea that there could be justice around this issue felt stopped short,” Killy said.
Kavanaugh’s past statements on the extent and limits of executive power indicate he would not support investigating a sitting president. Kavanaugh was involved in Kenneth Starr’s investigation of sexual misconduct by former President Bill Clinton but seems to have rethought his stance.
In a 2009 law review article, Kavanaugh wrote, “Having seen first-hand how complex and difficult that job is, I believe it vital that the president is able to focus on the never-ending tasks with as few distractions as possible.”
In the article, he advocated for a statute protecting sitting presidents from an investigation.
“The president’s job is difficult enough as is. And the country loses when the president’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution,” Kavanaugh wrote.
However, when questioned during his confirmation hearing, Kavanaugh refused to answer senators’ direct questions about the subject. His reasoning for avoiding the questions was that he would not address “hypothetical cases.” Kavanaugh’s advocacy against investigating a sitting president may have made Kavanaugh an appealing nominee to President Trump and could have influence over future decisions in the court.
“Trump tends to see things only through the lens of ‘what helps me?’” Angulo said. “And the fact that Kavanaugh thinks sitting presidents shouldn’t be investigated is part of the reason why I think he was such an appealing nominee to Trump.”
The Supreme Court has decided remarkably few cases involving gun rights. However, in 2008, the court declared for the first time that the Second Amendment right to bear arms was meant to protect an individual’s right to own a gun for self-defense at home, in a 5-4 decision with Anthony Kennedy as the swing vote.
In 2011, Kavanaugh wrote a 52-page dissent from a decision that upheld a D.C. ban on assault weapons and magazines of more than 10 rounds of bullets, plus broad registration requirements.
“A ban on a class of arms is not an ‘incidental’ regulation,” Kavanaugh wrote. “It is equivalent to a ban on a category of speech.”
Kavanaugh believes it is not for judges to weigh public safety in evaluating whether a gun law is constitutional, which may mean Kavanaugh could tip the Supreme Court against future gun control regulations.
Although Kavanaugh’s decisions can still fluctuate, it is certain that his elevation to the highest court in the United States has the potential to heavily impact some of the most controversial issues in the country.
By Amelia Myre ’20