Is Brett Kavanaugh the man who will finally bring down Roe?
“Vibrant” is a curious way to describe the Catholic community in Washington DC. To be sure, the Masses draw extremes. On most Sundays, the pews are filled by politicians, staffers, lobbyists and other middle-class transplants. Grey suits and wire-framed glasses abound. At the same time, the annual Solemn High Mass for Blessed Karl of Austria, the last Austrian emperor, is held every year at Saint Mary Mother of God in Chinatown. Monarchists and royalists (including a few Habsburgs) converge on the republic’s capital once a year. Yet “vibrant” is the word Brett Kavanaugh chose.
President Trump’s nominee for the Supreme Court is a lector at the Blessed Sacrament Shrine, just a few blocks from the Chevy Chase Country Club. The parish is liturgically conservative Novus Ordo and fairly well-to-do. Kavanaugh also serves meals to the homeless for Catholic charities and coaches a Catholic Youth Organization basketball team.
A cradle Catholic, he served as an altar boy in the archdiocese 40 years ago. After graduating from Georgetown Prep – a Jesuit school associated with the college of the same name – he attended Yale, first as an undergraduate and then as a law student.
Early in his career, he earned a reputation as a Republican partisan. In 1993 he began a clerkship under Anthony Kennedy, a Reagan appointee to the Supreme Court whose seat Kavanaugh has been nominated to fill. He graduated from Yale in 1990. In 1998 he authored large parts of the Starr Report, which argued for then Bill Clinton’s impeachment on the grounds of perjury and obstruction. In 2001 – the same year that his mother retired as a judge – Kavanaugh was appointed associate counsel to George W Bush.
Bush nominated Kavanaugh to the United States Court of Appeals for the DC Circuit in 2003. Democrats stalled his confirmation until 2006, when he was sworn in by Justice Kennedy. While serving on the court, Kavanaugh earned a reputation as a kingmaker. His clerkships were highly coveted by young, Republican-sympathising lawyers looking to fast-track their careers.
From the view of Catholic social teaching, Kavanaugh’s record on social issues is mixed to good. While generally protective of religious liberties, he has opined that the government has a “compelling interest” in “facilitating access to contraceptives” for employees. In a generally pro-life opinion on Priests for Life v Department of Health and Human Services, he nevertheless cited Roe v Wade as a precedent: an alarming habit for the justice many hope will cast the final vote in striking down Roe itself. He also tends to be unsympathetic towards universal access to healthcare and environmental regulation. Both are matters of concern (though perhaps secondary or tertiary) in the Church’s social doctrines.
His judicial philosophy can be described as originalist: he believes the constitution ought to be interpreted according to the intentions of its framers.
Any changes, however small, must be implemented by amending the document itself. The originalist position is generally contrasted with the loose constructionist school, which believes that modern norms and conditions should provide the context for interpreting the document. For instance, an originalist would say that the Second Amendment guarantees the right to bear arms, whereas a loose constructionist would point out that the Founding Fathers could not have anticipated the advent of automatic rifles.
Kavanaugh is largely considered a moderate originalist, however, because he places a great deal of weight on precedent. His understanding of the constitution is rather like the Church’s understanding of Scripture, with the Supreme Court acting as the Magisterium. Centuries of rulings and interpretations build on one another with an authority equal to that of the original text. He appears willing to accept “intentions” teased out of the constitution that aren’t explicitly stated – much the same way as the Church declares as infallibly true Mary’s bodily Assumption, though it’s not totally evident from the New Testament.
President Trump wouldn’t have nominated Kavanaugh without strong reason to believe the judge would take conservative stances on social issues. Many social conservatives support Trump precisely because he promised to appoint sympathetic justices to the court. Yet Roe stands as precedent, not only for its own purposes but also in subsequent landmark cases. Whether Kavanaugh will be able to break with such clear (though unjust and unconstitutional) precedent isn’t certain enough for Catholics to breathe easily.
Kavanaugh carries the hopes of many Catholics and social conservatives on his shoulders. He’s the man they hope will finally bring down Roe after four decades. The fight against abortion has been fraught with dramatic setbacks. But if Kavanaugh makes the unlikely (though by no means inconceivable) decision to rule in favour of the status quo, it will go down as the most stinging defeat in the history of the pro-life movement. The president would no doubt pay dearly in votes for his re-election should he choose to run in 2020.
Moderate Republicans are willing to confirm Kavanaugh. There’s nothing left but to don the black robes. Once he does, he will become the most-watched justice on the Court – and, after Trump himself, perhaps the most-watched man in Washington.
This page is available to subscribers. Click here to sign in or get access.