Kavanaugh Says US Supreme Court a ‘Team of Nine’ in Casework

US Supreme Court Justice Brett Kavanaugh emphasized collegiality over conflict among his colleagues in public remarks just weeks after they wrapped up another momentous term.

Speaking at the Eighth Circuit Judicial Conference in Bloomington, Minnesota, on Thursday, Kavanaugh said the court is “an institution of law not of politics.”

He noted the election law cases this term as examples of how the court has decided issues based on the law rather than “partisan affiliation” or “partisanship” and stressed there aren’t partisan divisions in how the justices conduct their work.

“We don’t caucus in separate rooms,” he said. “We don’t meet separately. We’re not sitting on different sides of the aisle at oral argument, so to speak, on the bench. We work as a group of nine, as a team of nine.”

Kavanaugh’s appearance comes about two weeks after the court issued a series of hot-button decisions that split 6-3 along ideological lines. In those rulings, the conservative majority effectively ended affirmative action in college admissions, threw out President Joe Biden’s plan to forgive $430 billion in student loan debt, and gave businesses that engage in expressive activities a right to refuse services to same-sex couples.

As Kavanaugh noted, not all of the court’s decisions were divided in that way. He joined Chief Justice John Roberts, Justice Amy Coney Barrett, and the court’s three liberals in rejecting an extreme legal theory Republicans advanced in an effort to bar state judges and administrators from reviewing federal election laws. He also joined Roberts and the court’s liberals in rejecting a major challenge to the Voting Rights Act. Both rulings shocked legal scholars.

Kavanaugh seemed to credit collegiality for that consensus. He said the justices spend a lot of time together in and out of court and build relationships and friendships that help when the court is deciding tough cases.

“We eat lunch together after every oral argument and conference and if you do the math, that’s about 65 lunches a year,” he said. “That’s a lot of lunch.”

Court Controversies

Kavanaugh’s appearance comes as the court continues to face new questions about ethics.

ProPublica reported the court’s leading conservative, Clarence Thomas, accepted financial gifts from Texas billionaire and Republican donor Harlan Crow that he didn’t disclose on his annual financial disclosures. More recently, the Associated Press reported that Justice Sonia Sotomayor’s staff pushed colleges and public institutions hosting her to buy her memoir and children’s book.

The justices have been largely quiet on these reports and the court has so far declined to adopt a code of conduct despite pressure from Democrats and progressives.

Kavanaugh declined to respond to any of these reports during the question-and-answer style interview with Eighth Circuit Chief Judge Lavenski Smith and Judge Sarah Pitlyk of the US District Court for the Eastern District of Missouri.

“There’s been a lot of press stories about ethics,” he said. “The chief justice has spoken about that as recently as May when he spoke at the American Law Institute, said we’re continuing to work on that as a group, and that’s accurate. I’m not going to add anything to what the chief justice said on that topic.”

But Kavanaugh did say the court’s decisions are another source of controversy and that it comes with the territory of being a justice.

“You shouldn’t be in this line of work if you don’t like criticism because you’re going to get it and you’re going to get a lot of it, but that’s been true historically” he said.

The best the court can do, he said, is “try to be consistent, try to be clear, try to explain ourselves, and try to show and not just tell that we are actually working as a team of nine on all these difficult cases.”