Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
President Trump’s nomination of DC Circuit Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy has sparked predictable outrage on the left. “People will die” if Kavanaugh is confirmed, a group of progressive Yale Law School alumni wrote the day after his nomination. According to progressive Democratic Senator Cory Booker, not only Kavanaugh’s supporters, but all those who fail actively to oppose his confirmation, are “complicit” in “evil.”
This overwrought reaction from progressives is not surprising. For the past 30 years, progressives have followed a well-worn script when addressing Republican Supreme Court nominations, according to which all GOP nominees must be denounced as extremists, whatever the nominees’ actual records. When it comes to Kavanaugh’s views on church-state issues, though, not only progressives have voiced concerns. Some conservatives have objected too.
Conservative critics worry that Kavanaugh is wobbly on religious freedom and the role of religion in public life, and that Trump has missed an opportunity to appoint someone with sounder views. By contrast, other conservatives (here and here) have defended Kavanaugh’s record on church-state issues. Among other things, they point to his pro bono work as a lawyer representing religious claimants in important Supreme Court litigation and his good reputation among religious-rights advocates.
It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.
Take the first case, Newdow v. Roberts, from 2010. Atheist plaintiffs challenged the constitutionality of religious elements of the presidential inauguration ceremony. They argued that the words “So Help Me God” in the presidential oath, as well as the customary opening and closing prayers, violated the Establishment Clause. In an opinion written by conservative Judge Janice Rogers Brown, the DC Circuit dismissed the case on standing grounds. Plaintiffs had not shown that the religious elements of the ceremony had injured them in a legally cognizable way, she wrote. It was therefore unnecessary to address the merits of plaintiffs’ constitutional claims.
Kavanaugh wrote separately to concur in the judgment. Plaintiffs had standing under relevant Supreme Court decisions, he believed; the Court had allowed litigants to challenge public religious speech in similar situations. On the merits, however, he thought plaintiffs should lose. He read the Court’s 1983 decision upholding legislative prayer, Marsh v. Chambers, to hold that government-sponsored prayers at a public ceremony, even sectarian prayers, are constitutional as long as the prayers are traditionally part of the ceremony and non-proselytizing in nature. Because the religious elements of the inauguration ceremony were “deeply rooted in American history and tradition,” and typically non-proselytizing, they did not violate the Establishment Clause.
Kavanaugh’s concurrence is surely conservative, in that it supports government-sponsored prayer at public events and does so on the basis of history and tradition. But his approach is quite centrist—certainly in comparison with Brown’s opinion, which took a much harder line—and consistent with the Court’s existing case law. Indeed, the Court essentially adopted Kavanaugh’s analysis (without attribution) four years later in another legislative prayer case, Town of Greece, a 5-4 decision with a majority opinion by Justice Kennedy himself. On this issue, it seems, Kavanaugh’s jurisprudence would resemble Kennedy’s own.
Or consider the second case, Priests for Life v. HHS (2015). That case involved the so-called Contraception Mandate, a requirement that employers offer female employees cost-free contraception as part of their workplace health plans. An “opt-out” allowed religious non-profit corporations to avoid the mandate by notifying their insurance providers that they objected to such coverage, in which case the providers would cover the cost of women’s contraceptives on their own.
In Priests for Life, religious non-profits claimed that, even with the opt-out, the mandate violated their religious freedom. Plaintiffs argued that the act of notifying their insurers itself made plaintiffs complicit in the provision of contraceptives in violation of their religious convictions. Plaintiffs sued under the Religious Freedom Restoration Act (RFRA), which provides that a law may not substantially burden a person’s religious exercise unless the law furthers a compelling governmental interest and does so in the least restrictive way.
A DC Circuit panel ruled against plaintiffs. Merely notifying their insurers of their objection to contraceptives, the panel reasoned, did not substantially burden plaintiffs’ religious exercise. When the full court denied plaintiffs’ request for rehearing, Kavanaugh dissented. He wrote that applying the mandate to plaintiffs did indeed violate RFRA. First, the mandate substantially burdened plaintiffs’ religious exercise, since it required them, on pain of a heavy fine, to do an act they believed would make them complicit in grave wrongdoing. Plaintiffs’ concerns about complicity might seem excessive to outsiders, but that was not relevant. Civil courts could not question the reasonableness or coherence of a person’s religious convictions, Kavanaugh wrote.
Moving to compelling interest, Kavanaugh wrote that the Supreme Court’s decision the year before in Hobby Lobby strongly suggested—without formally holding—that such an interest did exist in this case, namely, the government’s interest in facilitating contraception for women employees. In fact, he wrote, it was easy to understand why the Justices would think such an interest compelling. Unintended pregnancies could have dire consequences for women’s health and professional opportunities and lead to an increased number of abortions.
Nonetheless, Kavanaugh continued, the government could have chosen a less-restrictive means to further this compelling interest. Instead of requiring plaintiffs to file a form with their insurers, the government could have required that they simply inform the government that they would not cover contraceptives for women employees. The government itself could then have contacted the insurers, removing plaintiffs from the picture.
Kavanaugh’s dissent in Priests for Life is conservative, in that it supports the right of traditionalist religious believers to avoid complying with a progressive government mandate. But, like his opinion in Newdow, it is quite centrist—especially compared to another dissent in the case, again by Judge Brown, which denied that a compelling interest existed in the circumstances of the case. Kavanaugh’s reading of Hobby Lobby to “strongly suggest” a compelling governmental interest in facilitating contraception for women is, in fact, a pretty aggressive one. The Hobby Lobby Court merely assumed such an interest existed for the sake of argument. And Kavanaugh’s aggressive reading of Hobby Lobby wasn’t necessary. He could simply have assumed the existence of a compelling interest and moved on to his least-restrictive means argument.
Kavanaugh’s compelling-interest analysis demonstrates his comfort with at least some progressive arguments in religious freedom cases. This is significant, because the compelling interest standard is notoriously vague; as a practical matter, what counts as compelling turns almost entirely on the intuitions of individual Justices. If his dissent in Priests for Life is an indication, Kavanaugh’s instincts on this subject are less radical than liberals might fear or that conservatives might hope. His views hardly seem extreme, in the context of existing church-state jurisprudence. Once again, it seems he would fall right in the middle of the current Court.
As I say, one can’t guarantee how a Justice Kavanaugh, freed from the obligation to comply closely with Supreme Court decisions, would rule in church-state cases. In both Newdow and Priests for Life, he emphasized his duty as an appellate judge to follow and apply the Court’s rulings—neither to “trim” nor “expand” them. In church-state cases, as in so many others, that typically has meant trying to figure out how Justice Kennedy would rule. As a Justice, Kavanaugh would no longer need to do so and might well go in another direction. Still, on the basis of the evidence we have, his views seem to track very closely those of the moderately conservative—in church-state cases, anyway— swing Justice he would replace.