There are other signs that Kavanaugh’s colleagues do not hold him in particularly high esteem: He has formed no cross-ideological alliances, like the Jackson–Gorsuch axis on some civil libertarian issues, or the Kagan–Barrett partnership on structural federalism. The examples above, however, are no isolated incidents they are a trend across his tenure on the bench. Justices argue fiercely all the time, and we should not read too much into any one opinion. In a scathing dissent, Thomas savaged Kavanaugh for hanging his whole opinion on a “pithy catchphrase” rather than real legal analysis. Ramirez, Kavanaugh gutted Congress’ authority to create new individual rights by restating the same five words over and over again: “No concrete harm, no standing.” That was sum and substance of his justification for abolishing a power Congress had exercised for centuries. (The justice often uses oral arguments not to ask questions, but to make his case to the listening public, not uncommon but done far more cannily by other justices.) In TransUnion v. You can’t say he didn’t preview this effort: Kavanaugh said “neutral” or “scrupulously neutral” seven times during oral arguments. His Dobbs concurrence, for instance, declared that the court must remain “scrupulously neutral” about abortion-using the word “neutral,” or variations of it, 12 times in 12 pages. When Kavanaugh does venture into legal analysis, he frequently flattens his reasoning into a single phrase that, in his telling, settles the whole ball of wax. Progressives might-or might not-appreciate his assurances, but that does not transform them into any recognizable form of judging. In these concurrences, Kavanaugh sounds like a senator emerging from negotiations with his colleagues to reveal the terms of a compromise. ![]() It is, rather, a combination of backlash management (“We aren’t that extreme!”) and policymaking of the sort that is constitutionally assigned to the democratic branches. ![]() This is not legal analysis, and it barely pretends to be. Harvard marked a weird attempt to frame the majority opinion as “consistent with” the precedents that it was, in fact, overturning, a dubious effort to minimize the explosive nature of the court’s decision. His concurrence in Students for Fair Admissions v. Bruen greenlit mandatory mental health checks for gun licenses-a hotly contested issue that, once again, was not before the court. ![]() Jackson Women’s Health Organization proclaimed that states may not punish residents for getting an abortion elsewhere, prejudging an issue that was not before the court. Other concurrences do not clear that low bar. That is, at least, a tactical move ostensibly rooted in legal principle. The justice’s concurring opinions often bear even less resemblance to the kind of work product that we usually identify as “judging.” As the swing vote, Kavanaugh sometimes uses concurrences to limit the scope of a liberal majority opinion, as when he opened the door to future attacks on the Voting Rights Act this June.
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