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Brett Kavanaugh Wants You to Know It’s Not About Abortion

July 15, 2022, 1:30 PM

At the risk of sounding like Susan Collins, I am very disappointed with Brett Kavanaugh.

Though I never bought his assurances that he wouldn’t mess with Roe v. Wade as the senator from Maine apparently did (remember when Collins gave a 45-minute speech before the Senate, extolling Kavanaugh’s respect for precedent?), I didn’t think he would take a scorched-earth approach to ending abortion rights, either. I thought he’d chip away at it, as Chief Justice John Roberts had advocated.

Serves me right for being hopeful that Kavanaugh wouldn’t be a total partisan hack.

What really bothers me is not that Kavanaugh gave false assurances during his 2018 Supreme Court confirmation hearings (hey, didn’t Amy Coney Barrett, in 2020, and Neil Gorsuch, in 2017, make similar noises about settled law, stare decisis, and all that jazz?), but that he continues to treat us as fools.

While there are plenty of reasons to be alarmed by Justice Samuel Alito’s radical majority opinion and Justice Clarence Thomas’s even more radical concurring opinion in last month’s Dobbs v. Jackson Women’s Health Organization ruling, I find Justice Kavanaugh’s concurrence the most annoying.

It’s dishonest, self-serving, and preening.

And a master class in gaslighting.

‘Neutral on the Issue’

Throughout his concurrence, Kavanaugh goes out of his way to tell us that he’s not really taking sides. He starts with the usual bromides about how “abortion is a profoundly difficult and contentious issue because it presents an irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life.”

Then, he launches into his central theme: “The issue before this Court, however, is not the policy or morality of abortion,” writes Kavanaugh. “The issue before this Court is what the Constitution says about abortion.”

Well, we all know what the authors of the Constitution said about abortion in 1787: Nada. But telling us that the Dobbs ruling is not about “the policy or morality of abortion”? Huh?

To hammer home the point that there’s no moral judgment, he writes: “Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral.”

Compared to the “we’re not judgy” stuff in Kavanaugh’s concurrence, I’d rather take the majority’s full frontal attack on abortion. If nothing else, it’s more honest.

Calling Roe “egregiously wrong” from the get-go, Alito makes scant effort to disguise his contempt for abortion rights. The majority opinion is larded with references to “fetal life,” “potential life,” or “an unborn human being"—buzzwords of the anti-abortion movement.

Alito even gives us a checklist of “legitimate interests” that a state may have in regulating abortions, including, “respect for and preservation of prenatal life at all stages of development … the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.”

It’s a scary list. Alito is forcing his religious and moral views down our throats, and not at all shy about it.

So Kavanaugh seizes the moment to play good cop: “The Court’s decision today does not outlaw abortion throughout the United States,” he writes, noting that he respects those who propose a Constitutional ban on abortion, “just as I respect those who argue that this Court should hold that the Constitution legalizes pre-viability abortion throughout the United States. But both positions are wrong as a constitutional matter, in my view. The Constitution neither outlaws abortion nor legalizes abortion.”

He also throws in some gratuitous assurances that women can cross state lines for abortions, alluding to a “constitutional right to interstate travel"—a right that’s nowhere in the Constitution.

How clever does he think he is? A better question: How stupid does he think we are?

Kavanaugh knows damn well that some states will take extreme measures, like outlawing abortion completely, even in the case of rape or incest—and trying to stop residents from traveling out of state to get an abortion—and that the consequences for women and girls will be devastating. Yet, he assures us that the right to abortion is perfectly secured, and that the Dobbs decision isn’t about abortion at all. If that’s not gaslighting, I don’t know what is.

The ‘Un-Alito’?

Clearly, Kavanaugh wants to distinguish himself as the un-Alito. He wants us to know that he’s softer, more nuanced, and nicer.

“He’s saying he’s sympathetic to all sides,” said Tara Leigh Grove, a professor at the University of Texas School of Law, noting how Kavanaugh took a similar approach in his concurrence in New York State Rifle & Pistol Association v. Bruen, also in its just-completed term. There, in a 6–3 decision, the justices ruled that part of a New York law restricting the right to carry concealed weapons was unconstitutional. “In both cases, he’s saying we’re not taking everything down and that it’s not so bad.” (In his Bruen concurrence, Kavanaugh assures us that states can still mandate background checks and similar measures, even though the decision greatly expands gun rights.)

Just as he played Sen. Collins so brilliantly to secure her support and his seat on the Supreme Court, Kavanaugh’s now playing us. It seems he’s trying to romance both the right and the left, putting himself in line as the logical heir of the all-powerful swing vote—a role that his mentor former Justice Anthony Kennedy, for whom he clerked, once played.

Indeed, there was hope that Kavanaugh might be a Kennedyesque figure who would hew to the middle. “The only way for him to become a significant justice on the court as currently configured is to be the swing voter,” wrote Noah Feldman, a professor at Harvard Law School, in an op-ed last year that suggested (or hoped) that Kavanaugh would leave abortion rights intact. “If he consistently votes with the other conservatives, he becomes just one of five (or six) votes, without the power to control the law.”

Disappearing into the right-wing woodwork is exactly what Kavanaugh is trying to avoid. Despite siding with the conservative majority in Dobbs, he wants to keep his Kennedy option open, which is what his performative concurrences are all about.

To be the pivotal swing vote, Kavanaugh has to do more than write his I-feel-your-pain concurrences. Shouldn’t he be deviating from the hardcore conservative playbook once in a while?

“There’s nothing to indicate that he’s a Justice Kennedy or [Sandra Day] O’Connor at this point,” said Grove. “It’s also harder to be a swing vote given the 6-to-3 conservative majority on the court.” But Grove offered: “Justices do change over time; they tend to become more institutional. Roberts would probably not have voted to uphold the Affordable Care Act [as he did in 2012] earlier in his career—and the same can be said of O’Connor on affirmative action.”

Yes, it’s still early days in Kavanaugh’s tenure. In the meantime, though, I’m betting the gaslighting will continue.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com Twitter: @viviachen. To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com