2006: Kavanaugh discusses Roe v. Wade

At his 2006 confirmation hearing for the D.C. Circuit Court, Brett Kavanaugh was asked about the landmark abortion rights case.

Posted: Jul 11, 2018 9:16 AM
Updated: Jul 11, 2018 9:43 AM

Brett Kavanaugh is Donald Trump's nominee to fill Justice Anthony Kennedy's "swing" seat on the Supreme Court, known as such for how often his vote was the deciding one on behalf of either the liberal or conservative cohorts of the court on issues ranging from same-sex marriage to the travel ban.

With the Kavanaugh pick, many on the left are now concerned that a more conservative Supreme Court could result in harm to civil liberties and the rolling back of federal programs. While those concerns are not unreasonable, they shouldn't be apocalyptic. The reality is that gay marriage isn't going anywhere, Roe v. Wade will probably not be overturned, and a court with a Justice Kavanaugh could help rein in an executive branch that has become too powerful.

I am a libertarian, and Kennedy's votes aligned with my philosophy more often than any other justice's -- albeit often accompanied by somewhat inscrutable judicial opinions. In addition to his stalwart defenses of free speech (Texas v. Johnson) and federalism (NFIB v. Sebelius) Kennedy was the swing vote in all the major gay rights cases of the past 25 years. When Kennedy arrived on the bench in 1987, same-sex intimacy was illegal in many parts of the country. When he left, gay marriage was legal everywhere. That's a legacy for which he will be justly celebrated.

Yet Kennedy did not so much lead that parade rather than join it. The growing social acceptance of gay rights is one of the great civil rights stories of all time, and it didn't happen because the Supreme Court told us to do it. According to Pew, in 2001, 57% of Americans opposed gay marriage; in 2017 only 32% did.

Those numbers matter to justices, even ones like Kavanaugh. Disrupting expectations and going against widespread public opinion is not something that any justice is likely to do. Overturning gay marriage would require invalidating hundreds of thousands of marriages, and it would wreak havoc with tax statuses, inheritances, property ownership and dozens of other legal relationships that extend from marriage.

Moreover, overturning gay marriage would cause public opinion to shift against the Supreme Court, imperiling the legitimacy of an institution that depends upon the perception of legitimacy to function effectively. According to Gallup, the court hasn't had an approval rating over 50% since 2010. While justices should theoretically do their jobs without concern for public opinion, all the justices are aware that the court could suffer lasting institutional damage if public opinion falls to a level like Congress' dismal 19% approval rating.

No one is more aware of that than Chief Justice John Roberts, and there's no justice on the court that Kavanaugh resembles more than Roberts. Roberts' controversial vote upholding the Affordable Care Act could be explained as a vote to preserve the perceived legitimacy of the court. And, despite voting against gay marriage in Obergefell, Roberts joined a subsequent six-justice majority in smacking down the Arkansas Supreme Court when it seemed to be dragging its feet on implementing the decision. Obergefell was the law, even if he didn't vote for it, and Roberts thought it important that the court — his court — clearly tell the lower courts to follow it.

Even more conservative justices, such as the liberal bête noire Justice Antonin Scalia, were reticent to overturn settled precedent, disrupt expectations, and imperil the legitimacy of the court. Scalia had a theory that some precedents, even if wrong in his view, were so thoroughly a part of our law that justices shouldn't overturn them. As he quipped, "I am an originalist, not a nut." Kavanaugh is a judge who adheres to a similar mantra.

For all these reasons, Roe v. Wade is likely not in peril, either. Recent public opinion polls show that 57% of Americans believe abortion should be legal in all or most cases. Kavanaugh is perhaps the most mainstream conservative of any judge that Trump could have picked, and Scalia's philosophy of judicial restraint has become mainstream conservative thinking. Roe is likely safe.

So, if Roe and Obergefell are safe, what positives might we see from a more conservative court? For one, a more conservative court would rein in an out-of-control administrative state that empowers the executive branch to make sweeping changes in American lives. As it stands now, decades of settled practice can be overturned by just clicking "post." For example, the Obama administration nonchalantly suspended the Affordable Care Act's "employer mandate" in a blog post, despite the fact that the law passed by Congress required qualifying employers to provide health insurance or pay a fine by January 1, 2014.

The Obama administration also claimed that an unpublished opinion letter was sufficient to change the definition of "sex" to "gender identity" in schools all over the country. Whatever you think of transgender rights, and I'm a supporter, or the ACA, "government by blog post, unpublished letter, and tweet" is not something allowed by the Constitution.

And a more conservative court is likely to have less patience for possible Trump shenanigans domestically (although foreign policy is a different story). Last week, a federal district judge appointed by George W. Bush largely blocked the Trump administration's attempt to go after California's "sanctuary cities" laws. Judge John A. Mendez's ruling was quintessentially conservative, based on the constitutional principle that the federal government cannot command states to act. And last September, Reagan appointee Judge Harry Leinenweber ruled that the administration could not withhold unrelated funding from "sanctuary cities" to coerce them to change their policies, another ruling rooted in conservative constitutional principles. That ruling was later upheld by an all-Republican-appointed three-judge panel on the 7th Circuit. Kavanaugh is likely to agree with those judges.

If you're a liberal, a Supreme Court with Kavanaugh is certainly going to disappoint you sometimes, and he'll disappoint me, too. But if he is confirmed, don't be shocked if you're pleasantly surprised by many of the rulings that get his vote.

West Lafayette
Clear
77° wxIcon
Hi: 92° Lo: 71°
Feels Like: 79°
Kokomo
Clear
77° wxIcon
Hi: 92° Lo: 69°
Feels Like: 78°
Rensselaer
Clear
73° wxIcon
Hi: 88° Lo: 66°
Feels Like: 73°
Fowler
Clear
73° wxIcon
Hi: 89° Lo: 69°
Feels Like: 73°
Williamsport
Clear
77° wxIcon
Hi: 91° Lo: 70°
Feels Like: 78°
Crawfordsville
Clear
71° wxIcon
Hi: 90° Lo: 71°
Feels Like: 71°
Frankfort
Scattered Clouds
78° wxIcon
Hi: 90° Lo: 70°
Feels Like: 80°
Delphi
Clear
75° wxIcon
Hi: 91° Lo: 70°
Feels Like: 75°
Monticello
Clear
75° wxIcon
Hi: 95° Lo: 69°
Feels Like: 75°
Logansport
Clear
73° wxIcon
Hi: 90° Lo: 69°
Feels Like: 73°
WLFI Radar
WLFI Temps
WLFI Planner

Indiana Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 47432

Reported Deaths: 2687
CountyConfirmedDeaths
Marion11546683
Lake5104242
Elkhart321144
Allen2737129
St. Joseph190866
Cass16389
Hamilton1538100
Hendricks1390100
Johnson1256118
Porter72037
Tippecanoe6948
Madison65564
Clark64044
Bartholomew58244
Howard56557
LaPorte56326
Kosciusko5354
Vanderburgh5026
Marshall4823
Jackson4693
Noble46928
LaGrange4677
Hancock44035
Boone43743
Delaware43150
Shelby42325
Floyd37144
Morgan32731
Montgomery29320
Grant29126
Clinton2882
Monroe27628
Dubois2666
White26010
Henry25815
Decatur24932
Lawrence24225
Vigo2318
Dearborn22823
Harrison21222
Warrick21229
Greene18532
Miami1822
Jennings17411
Putnam1688
DeKalb1604
Scott1607
Daviess14216
Orange13623
Wayne1366
Steuben1282
Perry1279
Franklin1248
Ripley1157
Jasper1142
Wabash1122
Carroll1102
Fayette987
Newton9810
Starke923
Whitley905
Randolph784
Huntington742
Jefferson722
Wells711
Fulton691
Jay680
Washington681
Gibson672
Knox640
Pulaski641
Clay604
Rush563
Adams501
Benton480
Owen471
Sullivan441
Brown381
Posey380
Blackford372
Spencer371
Crawford300
Fountain302
Tipton301
Switzerland260
Martin220
Parke220
Ohio140
Vermillion140
Warren141
Union130
Pike100
Unassigned0193

COVID-19 Important links and resources

As the spread of COVID-19, or as it's more commonly known as the coronavirus continues, this page will serve as your one-stop for the resources you need to stay informed and to keep you and your family safe. CLICK HERE

Closings related to the prevention of the COVID-19 can be found on our Closings page.

Community Events