By Joan Biskupic, CNN legal analyst & Supreme Court biographer
Updated 6:11 AM ET, Wed July 29, 2020
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(CNN)Supreme Court Justice Brett Kavanaugh urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump’s financial records, according to multiple sources familiar with the inner workings of the court.
In the abortion controversy, Kavanaugh wanted the justices to sidestep any ruling on the merits of a Louisiana law that could have closed abortion clinics in the state, CNN has learned. The case marked the first time in four years the justices were taking up the heated subject. Kavanaugh’s plan would have ensured the law — a credentialing mandate for doctors who perform abortions — would not go into immediate effect but also ensured that the justices would not have to put their own views on the line.
The same would have been true in the fight between Trump and the US House of Representatives. Kavanaugh’s idea — presented to the justices in an internal memo and conversations, sources said — would have had the high court avoid the subpoena fight over Trump financial documents, based on the judicial principle that courts should stay out of cases involving fundamentally political questions.
While that strategy could have meant the President had to hand over his documents to congressional investigators, sources say the personal fate of Trump did not come up in internal conversations.
Throughout the recent court session, as Kavanaugh revealed a desire to avoid certain thorny dilemmas, the newest justice also demonstrated a pattern of trying to publicly appeal to both sides. His style of accommodation was on display in recent disputes over gay and transgender workers and, separately, undocumented immigrants who came to the US as children.
The details, revealed as part of CNN’s series on the justices’ private deliberations, show how Kavanaugh is approaching his role on the bench. Behind closed doors, he looks to please dueling factions of the court as he seeks to move beyond the angry and defiant image he projected in 2018.
His searing confirmation hearings, when he denied allegations that he had sexually assaulted Christine Blasey Ford when they were teenagers, remain fresh. He decried the claims as part of a vengeful partisan campaign against him. Having undergone that divisive battle, Kavanaugh, in his writing, appears keenly aware of tenuous public opinion of him and ready to adopt a posture of conciliation with his colleagues as he tries to influence deliberations on cases.
For much of his professional life, the 55-year-old Yale law graduate was laser-focused on the Supreme Court. He had been a law clerk to Justice Anthony Kennedy, assistant to independent counsel Ken Starr and a top legal aide to President George W. Bush. Kavanaugh maintained connections to powerful people who helped him climb the rungs of the judiciary.
In 2018, Trump chose Kavanaugh to succeed Kennedy, convinced by advisers that the Bush loyalist would be true to Trump and his brand of conservatism. Kavanaugh has not turned his back on the politicians who guaranteed his high court ascension, but his writing has suggested he does not want to appear to be a reflexive conservative vote, particularly against women.
Kavanaugh’s proposed abortion dodge
In March, Kavanaugh faced a test of the tension between his conservative bona fides and the apparent efforts to revive his reputation among women.
He had been confirmed with crucial support from Republican Sen. Susan Collins of Maine, who said he had promised he would uphold the 1973 landmark Roe v. Wade ruling, which made abortion legal nationwide. Kavanaugh’s position on women’s reproductive rights became an issue during his Senate hearings because Trump had nominated him to replace Kennedy, the court’s crucial fifth vote to keep abortion legal.
On March 4, the court heard oral arguments in June Medical Services LLC v. Russo, a challenge to a Louisiana abortion law that requires physicians who perform abortions at clinics to have “admitting privileges” at nearby hospitals. It would turn out to be the justices’ last day of arguments in the courtroom, before the nine went into isolation for the coronavirus pandemic.
A US district judge had determined after a six-day trial that the requirement designed for physicians who typically perform surgery at hospitals would shut down clinics and cut women’s access to abortion. Doctors had been unable to secure admitting privileges, the judge said, partly because hospital criteria discouraged the granting of privileges to abortion providers. But the 5th US Circuit Court of Appeals rejected those findings and upheld the law.
When the justices privately discussed the case days after oral arguments, CNN has learned, their vote was 5-4 to reverse the 5th Circuit and strike down the law. Chief Justice John Roberts, a conservative, provided the pivotal fifth vote with liberals to invalidate the law, similar to one struck down in Texas four years earlier.
Liberal Justice Stephen Breyer immediately began drafting the decision, with some guidance from Justice Ruth Bader Ginsburg, who had been a pioneering women’s rights advocate before joining the bench. Ginsburg believed laws like Louisiana’s lacked valid health benefits, and she had observed during the March arguments that first-trimester abortions are among the safest of medical procedures: “(F)ar safer than childbirth.”
In mid-March, Kavanaugh began making his case in a series of private memos to his colleagues, according to two sources, for returning the dispute to a trial court judge to gather more facts on just how onerous the admitting privileges requirement was.
Kavanaugh had laid groundwork for that position in February 2019, when the majority blocked the Louisiana abortion law from taking effect while the lawsuit was pending. Kavanaugh dissented then, saying the controversial law should be enforced. He asserted, contrary to the district judge’s findings but in line with the 5th Circuit, that it was not yet clear doctors would not be able to obtain credentials.
Kavanaugh’s new suggestion would keep the law blocked in the short term while the case moved back through the legal system. That aspect might not have pleased Kavanaugh’s core conservative constituency, which wanted the law enforced.
In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, threatening a woman’s constitutional right to end a pregnancy. In the long term, Kavanaugh’s demanding approach would make it more difficult to challenge the state physician regulation, meaning it could eventually be enforced down the line.
Kavanaugh directed his suggestions to all of the justices. Yet Roberts might have appeared most open to the idea, based on his own anti-abortion record. Four years earlier, Roberts had voted to uphold a nearly identical physician regulation from Texas. In fact, in his 15 years on the high court, Roberts had never cast a vote to invalidate an abortion regulation. Roberts also might have been similarly reluctant to stir controversy over reproductive rights and looking for a way to sidestep the dilemma.
In the spring of 2020, just months from another presidential election and with the public closely watching what would happen to abortion rights without Kennedy, Roberts also had an incentive to respect the court’s 2016 precedent. He held fast to what must have been a difficult vote, for abortion rights, even as he declared that he still believed the 2016 case had been wrongly decided.
Breyer, a 1994 appointee of President Bill Clinton, had written the 2016 decision. In that case and the new Louisiana one, Breyer concluded that the burdens of the admitting-privileges law outweighed any benefits to patients. Breyer produced a first draft in in mid-April, CNN has learned. Ginsburg and his other liberal colleagues, Sonia Sotomayor and Elena Kagan, told him within days that they would sign on.
There were no takers among the justices for Kavanaugh’s suggested solution. The liberals were locked in, and the three other conservatives were ready to dissent with no equivocation: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
Roberts said he would join Breyer’s bottom-line judgment against the Louisiana regulation, but with a rationale that would make it easier for states to defend restrictions on abortion clinics and physicians in the future. Kavanaugh penned a solo dissent asserting a lack of evidence that would support the challengers’ claims. He also made clear, however, by signing on to Alito’s dissent, that he thought sufficient facts existed on Louisiana’s side.
Whatever ambivalences he began with, Kavanaugh returned in the end to publicly express his conservative convictions.
Avoiding a political fight with the President
Kavanaugh’s nomination in 2018 ignited one of the most partisan moments of the Trump presidency. This spring, Kavanaugh privately raised a way out of a separate battle involving the President who appointed him and the Democratic-run House of Representatives, which had been investigating Trump on multiple fronts.
The House had impeached Trump in December 2019 but had then seen its charges rejected in a Senate acquittal of Trump in February.
The unrelated Supreme Court dispute known as Trump v. Mazars began after the US House had directed subpoenas at Trump’s accountants Mazars USA and two of his banks, Capital One and Deutsche Bank. Trump’s lawyers argued the subpoenas lacked any valid legislative purpose.
Kavanaugh raised a theory known as the “political question” doctrine, which holds that certain disputes are more properly worked out between the political branches rather than by judges. He theorized that the case might be left to the usual back-and-forth of the White House and Congress to figure things out.
His approach would provide an off-ramp for one of the imminent confrontations between Trump and the court.
During one of the justices’ private teleconferences, according to three sources, Kavanaugh convinced his colleagues to ask for supplemental filings on whether the political-question doctrine applied or there was any other reason the justices could not decide the case.
The discussion among the justices, sources said, concerned the practicalities of whether the issue Kavanaugh had raised would be relevant to the case involving private parties and whether it was prudent to make the late-hour request.
But there was a larger canvas that captured the attention of commentators once it became known that justices were mulling the idea as they asked for the new filings in April. Kavanaugh and other conservatives have long sought to bolster executive power, and if the high court were to decide that the House subpoena case was too political to resolve, it would dramatically undermine congressional power. Congress’ investigative committees would be unable to turn to courts to enforce orders against the President and his people.
Yet in this particular controversy, involving Trump’s accountants and banks, if the high court were to declare the House subpoenas beyond the reach of judges, there would arguably be no way for Trump to prevent his financial institutions from providing his records to House investigators. The short-term loss could be Trump’s — although sources said that did not enter into the discussions. The justices concentrated on the larger issue of any president vs. the Congress, sources told CNN.
In their filings, the parties to the case said the high court had the authority, indeed responsibility, to decide the case. Kavanaugh’s idea in the end also failed to sway the other justices, and Kavanaugh backed away from it, sources said.
Had a majority gone in that direction, it could have meant avoiding votes on the highly charged battle between Trump and congressional Democrats. Yet a separate subpoena dispute was pending between Trump and the Manhattan district attorney, Cy Vance, over Trump’s tax returns, and Kavanaugh knew the justices would have to confront that one.
In the House case, Kavanaugh eventually signed on to Roberts’ opinion for a seven-justice majority, which said Trump could be forced to turn over the financial records if the House could justify its request. But in the companion case, revolving around Trump’s effort to block a subpoena from the Manhattan district attorney, Kavanaugh offered something to both sides.
He agreed that Trump does not possess absolute immunity from a state criminal subpoena — every justice agreed with that proposition — but he then wrote for himself and fellow Trump appointee Gorsuch to assert a tough standard for prosecutors trying to obtain a president’s records.
Emphasizing differences with Alito and Thomas
In the recently completed session, Kavanaugh clung to his conservatism, offering no surprises and pleasing the right-wing advocates who had pushed for his confirmation. Still, he went out of his way to separate himself from hard-hitting conservatives Thomas and Alito, and sometimes Gorsuch.
Kavanaugh would hedge his rhetoric, trying to offer some sympathy for the people he was voting against, perhaps mindful of the reputation he wanted to counter and rebuild from 2018.
When the justices took up the so-called Dreamers case, Kavanaugh voted — in dissent — to favor the Trump rescission of the Obama administration’s Deferred Action for Childhood Arrivals program for young undocumented immigrants who had been brought to the US as children.
Yet he chose to split from the three other conservative dissenters, opening his statement with regard for Dreamers: “They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.”
The same was true when Kavanaugh chose not to side with fellow conservatives Roberts and Gorsuch to extend the 1964 Civil Rights Act to protect gay and transgender workers. He did not equivocate on the merits in that dispute. He cast a vote against expansion of the anti-discrimination law.
Still, he plainly struggled with the tone to take in dissent. Alito, for example, was writing an aggressive statement attacking the majority’s rationale. Kavanaugh decided to strike a softer chord. And he made a point of asserting in his dissenting opinion that, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit. … ”
In the most publicized moments of his 2018 hearings, Kavanaugh declared that the sexual assault allegations had arisen from a crusade of revenge against him and his Republican supporters. The unrestrained response was widely criticized as injudicious, including by former Justice John Paul Stevens, who has since died.
Kavanaugh declared then that “what goes around comes around,” listing a string of grievances that dated to his experience with Starr investigating the Clintons.
Kavanaugh appears to be trying to halt that pattern with a new message: He just wants to get along.
By Joan Biskupic, CNN legal analyst & Supreme Court biographer