Relationships Talk

Dear Judge Kavanaugh,

Congratulations on your nomination to replace Anthony Kennedy, your former boss, on the Supreme Court. You probably underrated Justice Kennedy’s sense of irony, as I did. For his final act, Kennedy, known for waxing mystical about dignity, allowed a man who routinely displays the most undignified of behavior to name his successor. But with the announcement of your nomination, we can hope the taint of being selected by Trump will quickly fade. You’ll be here long after Trump is gone, possibly four decades.

In the coming months you’ll have to run the gantlet toward Senate confirmation. While Democrats will sound every alarm about your qualifications and temperament, which by all indications are excellent, we all know there’s little chance of your not being confirmed, given the composition of the Senate. Your nomination represents, for many, the fruition of a conservative dream to install a Justice who will overturn Roe v. Wade and wrest the Court back from where Justice Kennedy surprisingly enabled it to go. But you are a judge. You’ll tell the senators that you don’t have predetermined votes on the matters you may hear. It’s easy for people to assume that this is an evasion, used to cloak ideology. But it’s an affirmative good for a judge to perform and cultivate a stance of openness, even if many see it as Kabuki theatre.

Judicial power on the Court isn’t the power to persuade but the power to be persuaded. What was notable about your predecessor was not, as many think, being in the “middle” of an ideological spectrum. It was his openness to argument. I imagine you heard, while clerking for Kennedy, that snotty young law clerks referred to him as “Flipper.” As you know, the nickname originated in 1992, with his most famous flip, on abortion, in Planned Parenthood v. Casey, five years after his nomination by President Ronald Reagan. Kennedy changed his initial vote, defying heavy expectations that a conservative Court would finally overturn Roe, after two decades. To the contrary, he and two other Republican-appointed Justices, Sandra Day O’Connor and David Souter (my former boss), crafted a plurality opinion preserving the core of Roe’s holding that states couldn’t make abortion illegal. (They received hate mail for that decision daily for the remainder of their tenures.) The opinion did hold that abortion restrictions were permitted if they didn’t impose an “undue burden”—a standard that practically welcomed legislatures to undermine access. But it also featured a striking sentence from Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That idea kicked off an evolution that led, in later decades, to his opinions holding that states could not criminalize same-sex sex, in Lawrence v. Texas (2003), and that states must allow same-sex couples to marry, in Obergefell v. Hodges (2015).

Such decisions revealed Kennedy’s willingness to be reviled by those who counted on him to be conservative. But the truth is that, despite some unfolding surprises in his jurisprudence, Kennedy generally did vote with the right. He frustrated liberals more often than not. He authored Citizens United and voted against campaign-finance regulation, criminal defendants, labor unions, anti-discrimination laws, voting-rights provisions, Obamacare, and consumer-protection laws. His final term included a vote to uphold the so-called Muslim ban and an opinion in favor of the Colorado baker who refused to bake a cake for a same-sex wedding.

Yet Kennedy also became the most powerful Justice on the Court, especially after Justice O’Connor, the longtime centrist, retired, twelve years ago. Kennedy was like Ohio. The risk that he would flip meant his colleagues had no choice but to court his vote, from the left and the right, and work to keep it secure by tailoring their opinions to insure he wouldn’t defect. Litigants effectively directed their briefs and arguments to Kennedy alone, because it was often assumed that the rest were already decided. Commentators studied Kennedy’s moves more closely than they did the other Justices’. Court watching became not so much counting votes but trying to read Kennedy’s psyche. What made the rhythm of the Supreme Court term exciting, dramatic, and suspenseful was that Kennedy was in play, and neither we nor his colleagues knew what would happen.

Judge Kavanaugh, your predecessor was sometimes mocked for not being certain of his own mind. But judges, liberal or conservative, should not be wholly predictable; they should be open to complexity, to ambivalence, to frustrating supporters and withstanding criticism. You can’t be expected to vote as Kennedy did. Republicans have high hopes about securing a solid conservative block, and the Court will surely take a conservative turn. This would keep with the results of the 2016 Presidential election, and with the design put in place by the Constitution. But if you simply walk in lockstep with the block, your influence as an individual Justice will naturally be limited. Many conservative lawyers respect Justice Clarence Thomas’s jurisprudence, but most people, even lawyers, know little of him beyond memories of his controversial confirmation hearing in 1991. His profile sunk like a stone, not because of the quality of his work but in large part because his solid predictability made him appear not to matter in determining results. Even more so for Justice Alito. Chief Justice Roberts, meanwhile, has shown variability in upholding Obamacare. Justice Gorsuch cast a fifth vote with the four liberal Justices ruling against the Trump Administration in an immigration case this past term, inspiring immediate complaints from the President that he might not be a reliable conservative.

Not to appeal unduly to narcissism, but I hope you’ll aim to be distinctive and influential, to bring to the Court a new voice of a new generation, especially as one of its youngest members. Your colleagues, litigants, and the public should have to vie to persuade you of the best arguments and their consequences, rather than taking your vote as a given. If the Court invariably produces decisions featuring the same five against the same four, it can, for the public, have little claim to legal open-mindedness, neutrality, or legitimacy.

With your nomination, many are convinced that Roe v. Wade is on the cusp of being overturned. Even if you don’t take my advice, my guess is that this will not happen overnight. It would take many years for the Court to accomplish that reversal in a way that preserves a sense of respect for precedent, particularly since the legal, social, and cultural changes Roe enabled, including legal gay sex and gay marriage, are now so strongly entrenched in the country, and especially in the class of legal professionals. Judges rightfully don’t relish the appearance of doing the bidding of any party, movement, or President. A quick volte-face would heighten that sense. But, to be brutally honest, Judge Kavanaugh, if Roe v. Wade were to be overturned because of your appointment, it would be the biggest possible gift you could give the Democratic Party. Roe led to an intense backlash that fuelled the powerful rise of modern conservative social movements. Overturning it would likely galvanize effective and far-reaching political organizing on the left, more so than anything else to emanate from the Court in the coming decades. Perhaps you will—for reasons of prudence, restraint, and even power—give everyone less faith in their predictions about you.