It’s been difficult at times to pin down exactly where Justice Brett Kavanaugh will align on certain cases that come before the Supreme Court, with the Trump appointee bouncing back and forth between siding with his conservative and liberal colleagues on the bench.
Case in point: One left-leaning writer at Slate at first believed Kavanaugh was on track to block a Texas abortion ban from going into effect. But in a stunning turn, the justice ultimately “threw in with the four other hard-line conservatives,” Slate’s Mark Joseph Stern admitted, leaving abortion advocates reeling.
The law, known in Texas as S.B. 8, effectively bans most abortions in the state after six weeks of pregnancy. It’s unique, however, in that the measure isn’t enforced by officials of the state, but rather by private citizens via civil lawsuits.
In structuring the bill this way, many argue that Texas Republicans effectively dodged the typical process of pre-enforcement review of laws by federal courts.
“It could be free speech”
It is that novel enforcement mechanism that has been the center of scrutiny thus far by the Supreme Court. Writing for Slate on Tuesday, Stern noted that Justice Kavanaugh appeared to side with those opposed to the Texas law during oral arguments in November — albeit not because he supported abortion rights.
Instead, Kavanaugh cited an amicus brief filed by the Firearms Policy Coalition that warned the structure of Texas law, if allowed to stand, could be adopted by other states and applied to other rights protected by the U.S. Constitution, such as the rights outlined by the First and Second Amendments.
“And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights,” Kavanaugh said. “If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”
The justice went on to give examples: a Democrat state could impose million-dollar fines via civil suits on gun dealers, he suggested. In response, the attorney for Texas surprisingly agreed.
“I was wrong”
Based on Kavanaugh’s arguments, Stern assumed the justice would side with his liberal colleagues against the Texas law, if only to protect the other rights he cares about more than abortion. But after the Supreme Court issued its ruling last week allowing the law to stand while litigation against it proceeds, the liberal writer acknowledged: “I was wrong.”
“This circumspect, principled version of Kavanaugh had vanished. Instead, the justice threw in with the four other hard-line conservatives,” he lamented.
Stern went on to decry Kavanaugh’s apparent “hostility to abortion,” which he argued “has been evident since he served on the U.S. Court of Appeals for the District of Columbia Circuit.”
To be sure, the concerns raised by the Firearms Policy Coalition and pressed by Kavanaugh are legitimate, even if the primary intention of the Texas law — to protect the lives of unborn babies — is a just and righteous cause. For Stern, however, it’s no one’s fault but his own that he got his hopes up.