Who is Brett Kavanaugh?
That may seem like an odd question. For a few weeks last September, America and the world learned almost everything about Kavanaugh: his tenure as a judge on the D.C. Court of Appeals and as a White House lawyer for President George W. Bush; his privileged education in Maryland and New Haven; most of all, the allegation that he sexually assaulted Christine Blasey Ford when they were in high school. Kavanaugh’s Supreme Court confirmation hearings left few Americans without an opinion about him.
But now that Kavanaugh is on the Court, who he is matters more than ever. The 54-year-old lifetime appointee replaced Justice Anthony Kennedy, who for decades occupied the swing seat on the bench, casting the decisive vote on legalizing same-sex marriage, protecting corporations’ political spending and affirming an individual right to own guns. Those issues and more may hang on what kind of justice Kavanaugh becomes and how he votes.
The process is less predictable than anyone who watched the confirmation battle might suspect. Kavanaugh could veer hard to the right, as Justice Clarence Thomas did after Anita Hill accused him of sexual harassment during his confirmation hearings in 1991. He could settle toward the center, as Kennedy did after the contentious nomination battles over Robert Bork in 1987. Or he could become something more complicated than the most fervent agonistes on either side expect.
As his first term ends, everyone—from Kavanaugh’s oldest friends to his fiercest detractors, from clerks to court-watchers to his eight new colleagues—is scrutinizing the new justice for signs of where he will take the court. A close look at Kavanaugh’s voting this term reveals that he is more reliably conservative than Kennedy, helping push the court right since his confirmation. He has formed an influential alliance with Chief Justice John Roberts, and, to a lesser extent, Justice Samuel Alito, both Bush-era nominees.
But Kavanaugh has also voted with some of the liberal justices as often as he did with the far-right flank during his first term. He sided with justices Stephen Breyer and Elena Kagan, for example, the same percentage of the time that he did with President Donald Trump’s other appointee, Justice Neil Gorsuch, according to data collected by Adam Feldman, a lawyer who writes the Empirical SCOTUS blog.
Kavanaugh has already provided the decisive vote in eight 5-4 rulings with a traditional ideological split, including cases related to immigrant detention, the death penalty and sovereign immunity. In one of the most hotly anticipated cases of the term, he and the other conservatives decided that partisan gerrymandering of legislative districts isn’t reviewable by federal courts. And over the coming years, Kavanaugh will wield enormous power as the new, more conservative court takes up pivotal subjects like environmental regulations, guns and religious liberty.
The wild card in Kavanaugh’s effect on the court, and America, is his own effort to move past the confirmation hearings. Unlike others who have been accused of past sexual abuse in the #metoo era, he has a lifetime appointment to a position of power from which to try, and already he is using his spot on the court to do so. Rather than always sign on anonymously to his colleagues’ rulings, for example, he has issued multiple concurring opinions, laying out his thinking in ways first term justices don’t often do.
For many, nothing he does on or off the court will change the judgment they have already rendered. The confirmation hearings were a torment for Blasey Ford. She says she never wanted to testify, and that her life has been upended by the public airing of the suffering she had carried for years. “Having Brett Kavanaugh on the Supreme Court, with allegations of sexual misconduct still very fresh in the public’s mind, strikes millions of Americans as a dagger through the heart,” says Nan Aron, founder of liberal judicial advocacy group Alliance for Justice.
Outside the court, Kavanaugh’s friends and colleagues are speaking, on-the-record and on background, in hopes of shaping perception on his behalf. “I don’t know if he’ll ever fully get over the confirmation process,” says one friend. Not even those closest to him know how his work as a justice will be affected. Kavanaugh, who has vociferously denied Blasey Ford’s allegations, hasn’t given an on-the-record interview since the hearings, and declined to do so for this story.
Sometime soon, the most charged moral, legal and political issue will land on Kavanaugh’s desk: abortion. And at that point, another reckoning with history will come for him, even if he doesn’t yet know how he will rule.
Kavanaugh’s chambers at the Supreme Court are a work in progress. His bookshelves are a jumble of freshly unpacked volumes and trinkets. Seven months after he was sworn in, Kavanaugh still had unframed reproductions of the paintings he planned to borrow from the Smithsonian taped up on his walls: portraits of Abraham Lincoln, Ulysses S. Grant and former Chief Justice John Marshall. The most prominent decoration, behind Kavanaugh’s desk, is a framed reproduction of a Tom Lea landscape over a quote from the artist about living on “the sunrise side” of the mountain. The original hung in Bush’s Oval Office, when Kavanaugh served as staff secretary.
The office reflects Kavanaugh’s unsettled place on the court. During his 12 years as a judge on the D.C. Circuit, Kavanaugh developed a reputation for being a conservative judge, but not an entirely dogmatic one. His writings and opinions displayed a broad reading of the Second Amendment, skepticism about the power of federal regulatory agencies, and a robust view of executive power. This last attribute may have piqued Trump’s interest when he decided to nominate Kavanaugh in the summer of 2018, in the heat of special counsel Robert Mueller’s investigation.
Kavanaugh’s first term on the court presents a more complicated picture of the kind of justice Kavanaugh may become. From one perspective, he is developing a new center on the court with the Chief Justice. Kavanaugh voted with Roberts more often than any other justice, sticking with the chief 94% of the time, according to Feldman. These two justices voted with the majority the highest percentage of the time this term, cementing the court’s new conservative middle.
Those who know both Kavanaugh and Roberts aren’t surprised by this emerging judicial partnership. Kavanaugh regularly sent law clerks to Roberts, and the two judges are temperamentally, philosophically and stylistically similar, friends and former clerks say. Kavanaugh may be more academic in his jurisprudential approach, while Roberts tends to be more practical— Kavanaugh has said he’s an originalist, while Roberts doesn’t identify as one. But neither is doctrinaire like the late Justice Antonin Scalia was, philosophically adrift like Kennedy or incrementalist like former Justice Sandra Day O’Connor.
Some on the right see a second possibility, that Kavanaugh’s alignment with Roberts could be a passing phase. Citing Kavanaugh’s testimony following Blasey Ford’s, they hope the confirmation hearings will help drive him further to the right. “Brett Kavanaugh has seen how unforgiving the Left can be,” says Leonard Leo, executive Vice President of the Federalist society and a friend of Kavanaugh’s who advises Trump on judicial nominations. “[He] has experienced, in a way the Chief Justice never really has, that no matter what you try to do to placate or reason with the potential opposition, they will never be satisfied. So Justice Kavanaugh has every incentive to basically do what he wants to do and ignore the Left.”
Leo and his allies predict that Kavanaugh will evolve to be more like Alito, who is ideologically to the right of Roberts, less willing to compromise or inclined toward consensus. There is some data to support this conclusion. According to Feldman, Kavanaugh sided with Alito 91% of the time in his first-term. In a fractured decision on the court’s most political case of the term, about whether the Trump Administration can add a citizenship question to the Census, Kavanaugh, Alito and the other conservatives split from Roberts and the liberal wing.
Kavanaugh also joined conservatives in some key 5-4 cases in his first term. He found that federal courts can’t strike down electoral districts designed to favor certain political parties. He adopted an expansive interpretation of a mandatory immigration detention statute that will allow the Trump administration to arrest and detain immigrants without bond hearings years after they have completed criminal sentences. He also voted with the conservative bloc in ruling that Alabama could execute a Muslim prisoner without the man’s imam present as requested, and to clear the way for the execution of a Missouri man who claimed lethal injection would cause him terrible pain due to a medical condition. Previously, five justices had delayed this same man’s execution, with Kennedy joining the four liberals. Kavanaugh’s vote suggests his presence may strengthen the court’s conservative bent on capital punishment.
But in his first term, Kavanaugh was not simply a strident conservative crusader. He voted with a majority over Thomas and Gorsuch’s dissents to stay the execution of a Buddhist man in Texas who requested his spiritual advisor be present. Squabbling over the decision among the conservative justices burst into public view. Kavanaugh, joined by Roberts, took the rather unusual step of issuing an explanation of his decision. The other three conservatives responded with another statement, written by Alito, accusing Kavanaugh, Roberts and the liberal justices of being “seriously wrong.”
Kavanaugh also granted other wins to liberals, including in a 5-4 case where he ruled that consumers could pursue an antitrust lawsuit against Apple for monopolizing the iPhone app market. He even wrote the majority opinion in that case, an assignment handed down by the senior liberal justice, Ruth Bader Ginsburg. “People made all sorts of wild predictions about him,” says Travis Lenkner, who clerked for Kavanaugh on the D.C. Circuit. “So far, those have not come to pass.”
Few suspect that Kavanaugh will take a third route, to the left of Roberts. But his occasional alliance with Breyer and Kagan suggest that he may be more moderate than many expect. What is clear is that the court is still adjusting to its new configuration, with some surprising results. There have been eight traditional 5-4 splits this term, with the five conservatives voting as a bloc. But there were as many 5-4 decisions with all the liberals plus one conservative in the majority this term as there were cases with all the conservatives voting over the liberal wing. “They’re trying to discover a new identity,” says Feldman.
Just as observers are scrutinizing the court’s rulings for signs of Kavanaugh’s impact, they are also watching Kavanaugh himself. The inspection began with his arrival at the Supreme Court in October. His eight new colleagues had just watched as his crass jokes from his high-school yearbook were dissected and his drinking history analyzed. The normally staid judge had unleashed an angry, emotional attack on his Democratic critics. The other justices were hardly strangers: Kavanaugh knew them from Washington legal circles, academia, and even those high school years, in the case of Gorsuch, who was a couple of grades behind him at the same school.
Whatever they thought of Kavanaugh or his performance at the hearings, the justices knew what his arrival meant for the balance of power on the Court. Justice Sonia Sotomayor was the first to come by his chambers. By her own account, she wanted to welcome him. “The nine of us are now a family and we’re a family with each of us our own burdens and our own obligations to others, but this is our work family, and it’s just as important as our personal family,” Sotomayor told CNN last November. “She clearly made a point” of being the first to reach out, says one of Kavanaugh’s former clerks.
Kagan, whom Kavanaugh knew from his time teaching at Harvard Law School while she was its dean, had him over for dinner. Day to day, Kavanaugh has the most interaction with Kagan, Gorsuch and Roberts, the three other youngest justices, with whom he had the most established relationships before he joined the court.
In his chambers, Kavanaugh has maintained the Spartan approach to judging for which he was known on the lower court. He writes fast, chugging six to eight Diet Cokes a day. Clerks know he prefers short bench memos, 10 pages maximum. “He’s an excruciatingly careful writer,” says Sarah Pitlyk, who clerked for Kavanaugh on the D.C. Circuit. Pitlyk recalls hanging in her office her 100th draft of an opinion, as a kind of trophy. “Everything had to be technically perfect before it was circulated,” she says.
Friends are looking for signs of the hearings’ effect on Kavanaugh now that he’s settling in. “He just doesn’t talk about it,” says Maura Kane, a friend who attended a February luncheon he hosted at the Supreme Court for more than 35 of his female friends who had organized themselves to defend him during the hearings. He has been stepping out in public, sometimes going unrecognized in a baseball cap. A Bible on the mantle in his office is tabbed to Matthew 25, which includes the verse, “I was naked and you clothed me, I was sick and you visited me, I was in prison and you came to me.”
But Kavanaugh seems to hope that his emerging record on the court will be his legacy. If any issue is central to that mission, it may be the question of a woman’s right to an abortion, and it is coming to the Supreme Court, perhaps sooner than the justices would like. A flurry of states passed anti-abortion laws in 2019. At least nine have passed bills that would ban abortions early in pregnancy. In May, Alabama passed the most restrictive abortion law in the country, which would criminalize abortion with no exceptions for rape or incest and punish doctors who provide abortions with lengthy prison sentences. Louisiana passed laws requiring abortion-performing doctors to have admitting privileges at local hospitals, which in practice would drastically decrease the amount of providers in the state.
The Supreme Court temporarily stayed the Louisiana laws this term, with Roberts joining the four liberal justices; the court may hear the case next term. Kavanaugh dissented, arguing he wouldn’t have blocked the law preemptively in order to see how it affected women’s ability to obtain abortions, and allowing plaintiffs to challenge the law later.
Kavanaugh’s thin record on the subject leaves observers reaching for inferences: he is a Catholic conservative, and Trump said he would only nominate “pro-life” judges. During his confirmation hearing Kavanaugh suggested he would approach the issue in a pragmatic way. “I don’t live in a bubble,” he said under questioning. “I live in the real world. I understand the importance of the issue.”
But Kavanaugh ruled on abortion only once during his 12 years on the federal bench. In 2017, his court allowed a pregnant immigrant teen in federal custody to obtain an abortion. The teen argued that a federal policy that required approval for the procedure was an unconstitutional burden, and a majority of the court agreed. Kavanaugh dissented—in a way that worried people on both the left and the right.
The judge wrote that he was attempting to find a compromise between Supreme Court precedent that prohibits the government from placing an “undue burden” on a woman seeking an abortion while maintaining the government’s interest in protecting “fetal life.” That instinct to find middle ground alarmed conservatives, who thought it suggested Kavanaugh might shy away from a sweeping constitutional ruling on abortion.
At the same time, liberals seized on Kavanaugh’s language as coded antiabortion rhetoric. Kavanaugh wrote that his colleagues were creating “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand,” and promoting “a radical extension of the Supreme Court’s abortion jurisprudence.” Says liberal judicial advocate Aron: “He came across with many platitudes about Roe v. Wade, but then sought to undermine her case.”
Even if the Supreme Court ultimately chooses not to overturn Roe, it could chip away at abortion rights in more incremental ways. Kavanaugh’s colleagues even seem to be playing for that possibility, firing warning shots on abortion from both sides of the bench. Kavanaugh and Roberts sided with three liberal justices this term in declining to take up a case about Medicaid funding for Planned Parenthood. In his dissent, Thomas accused the majority of avoiding a polarizing issue—an echo of the conservative criticism of Kavanaugh’s dissent in the immigrant case.
In another abortion case this term, the justices tried to have it both ways, upholding an Indiana law requiring fetal remains to be buried or cremated, but blocking another part of the law that would have prohibited women from obtaining an abortion after a diagnosis of Down syndrome or another disability, or because of the fetus’s gender or race. Thomas once again accused his colleagues of cowardice in his dissent. “Although the court declines to wade into these issues today, we cannot avoid them forever,” he wrote. “Having created the constitutional right to an abortion, this Court is duty bound to address its scope.”
Breyer offered the opposite warning in another dissent this term, suggesting conservatives on the court are charging towards the issue. “It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question,” Breyer wrote in a case unrelated to abortion but in which the conservative majority overturned precedent. “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Kavanaugh is in the middle of that fight and will play a key role in resolving it when it arrives in full at the Court. His first term suggests he is still uncertain how he will come down on that and the other issues over which he now holds influence. On the coffee table in his chambers, is a book he points out to guests that captures what defenders say is his capacity for empathy but that those who believed Blasey Ford will surely view with bitter irony: his faded sixth-grade copy of Harper Lee’s To Kill a Mockingbird. Written in the back of the book is Kavanaugh’s essay assignment from that year: “Give examples of standing in someone else’s shoes.”
Correction, July 12
The original version of this story mischaracterized the Supreme Court’s 2019 decision on partisan gerrymandering. It found that partisan gerrymandering is a political question beyond the reach of federal courts, not that it is constitutional.