The Kavanaugh Files
With his selection of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court, President Donald Trump has the opportunity to alter the makeup of the court for a generation. Many constitutional rights have been enshrined by a slim Supreme Court majority, with Justice Kennedy often casting the deciding vote. A shift in the court’s ideological makeup could affect those rights.
Given the stakes of this nomination, senators should probe Kavanaugh thoroughly on his record and his positions when they question him at his confirmation hearings in early September. The ACLU does not endorse or oppose nominees or candidates for political or judicial office. But we have analyzed Kavanaugh’s record on some major civil rights and liberties issues in the articles below. For more detailed legal analysis, read the ACLU’s report on Kavanaugh here.
Kavanaugh Has a History of Extreme Deference to the President on National Security
The public record on Judge Brett Kavanaugh’s possible involvement in some of the Bush administration’s most abusive policies and programs is woefully incomplete.
But Kavanaugh does have a well-developed record in cases involving national security, civil liberties, and human rights from his time on the D.C. Circuit. That record shows extreme deference to presidential claims to act unchecked in the name of war or national security. It also demonstrates hostility to international law as a constraint on government action as well as an unwillingness to hold the government to account when it violates the rights of U.S. citizens and noncitizens.
Alabama Abortion Decision Raises Alarms Ahead of Kavanaugh Hearings
A federal appeals court recently struck down Alabama’s ban on a safe, medically proven abortion method. While this court recognized the precedent set by previous Supreme Court decisions, this result is not assured with a new majority on the court that opposes abortion rights.
This case is one of dozens of reproductive rights cases working their way through the federal court system, any one of which could reach the Supreme Court. They include cases challenging abortion bans, laws designed to interfere with women’s abortion access, and efforts by state lawmakers to close down clinics providing abortions. While Roe v. Wade is settled law now, that could change.
Brett Kavanaugh's One Abortion Case
In the only abortion case heard by President Trump’s nominee to the Supreme Court, Judge Brett Kavanaugh issued a decision that would have forced a young immigrant girl to delay her abortion, almost a full month after she first sought it.
Ultimately, the full appeals court reversed his decision, ending the government’s obstruction in the dramatic case. But given Kavanaugh’s decision to allow the government to further obstruct Jane Doe’s access to abortion, we should all be gravely concerned about what his appointment means for the future of reproductive rights for all women.
The Supreme Court Doesn't Have to Overturn Roe to Decimate Abortion Rights
If the Supreme Court overturns Roe v. Wade, many states will ban abortion. By some counts, almost half the states would do so. Seventeen states already have laws on the books to accomplish this swiftly if the Supreme Court overturns Roe.
But a new Supreme Court justice could effectively decimate women’s access to abortion, even without overturning Roe outright, by upholding nearly unlimited state restrictions. In that way, the court would end abortion within the states that pass them — as surely as if the court had overturned Roe and allowed politicians to ban abortion explicitly.
Dear Brett Kavanaugh, Justices Do Make Law
Judges “must interpret the law, not make the law,” observed Judge Brett Kavanaugh in accepting Donald Trump’s designation to fill Justice Anthony Kennedy’s seat on the Supreme Court.
This oft-repeated assertion is an invention of conservatives who seek to criticize and curtail rights-enhancing decisions of the Supreme Court. But the assertion that judges should not make law rests upon a fundamental misunderstanding of the role of judges within our common law tradition.
10 Questions for Brett Kavanaugh
It is incumbent upon the Senate to pose probing questions to Kavanaugh — and to require him to provide meaningful answers, not artful dodges. Nominees all too often avoid answering questions about their views by simply describing existing Supreme Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them.
But in speeches and writings while a judge, Kavanaugh has repeatedly expressed his own views on many matters that might come before him. If he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing.
Brett Kavanaugh Chose Corporations Over the Public in a Major Net Neutrality Fight
The D.C. Circuit Court of Appeals was called upon to review the constitutionality of the Federal Communications Commission’s net neutrality regulations from 2015. Brett Kavanaugh wrote a dissent, which both devalued the importance of net neutrality to the free speech interests of the public, while also elevating the risk net neutrality presented to ISPs’ free speech rights.
The dissent chose the free speech interests of powerful corporations over those of the public. It would have a devastating effect if it was embraced by the U.S. Supreme Court.
Can the Wall Between Church and State Survive Brett Kavanaugh?
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Public schools are educational institutions, not temples of religious indoctrination. For over half a century, the Supreme Court has thus recognized that the Constitution prohibits public schools from imposing prayer on children and that religious education is the province of parents and religious communities, not government bureaucrats.
On Wednesday, Supreme Court nominee Brett Kavanaugh, however, strongly suggested that he disagrees and that, if confirmed, he will vote to weaken the separation of church and state in public schools.
ACLU Legal Director David Cole on the Supreme Court's Uncertain Future
This year, the court handed down major decisions on partisan gerrymandering, warrantless searches and seizures, union dues, the religious rights of business owners, and the Trump administration's notorious travel ban — to name a few. But the most consequential news from the court came once the session ended, with Justice Anthony Kennedy announcing his retirement. ACLU David Cole looks back on the most important cases of the session, and considers the court’s very uncertain future.
