In Senate hearings on the nomination of Brett Kavanaugh to the Supreme Court, Senators had trouble agreeing on just how often the Supreme Court had adopted Kavanaugh’s reasoning. In Kavanaugh’s senate questionnaire he identified nine such cases. At the hearing yesterday, according to Senator Portman, the number was thirteen, today in comments by Senator Charles Grassley the number had fallen to twelve and by early evening Kavanaugh brought it back up to thirteen in response to Senator Crapo.

Whatever the number, this claim is false. Of the 13 cases most likely to be on Senate Republicans’ shifting list, in six cases, the Court did not agree with Kavanaugh on the merits and in four his views were supported only by what Senator Whitehouse has called the “Roberts 5”—the right-wing majority on the Court, who are among Kavanaugh’s biggest fans. Only in three cases did the Court by consensus agree with Kavanaugh, and the Court reversed him in another important case.

“It’s not surprising that Kavanaugh’s reasoning has been adopted a few times in his years on the D.C. Circuit,” said People For the American Way Senior Fellow Elliot Mincberg. “But Republicans are twisting the truth beyond recognition to say that his reasoning has been adopted 13 times.”

Cases where Supreme Court did not agree with Kavanaugh opinions on the merits (6)

• Bluman v. FEC (2011) and RNC v. FEC (2010) were three-judge district court opinions written by Kavanaugh upholding Federal Election Commission decisions that were summarily affirmed by the Court without opinion or argument. As the Supreme Court itself has explained, however, a summary affirmance “should not be taken as an endorsement of the reasoning of the lower court.”
• Priests for Life: The Supreme Court did not agree with Kavanaugh, contrary to his claim in his response to question 13d on the committee’s questionnaire. His position in dissent was that it violated RFRA to require religiously-affiliated organizations to fill out a form notifying their insurers of their objection to providing contraceptive coverage for employees so insurers could provide it. The D.C. Circuit majority disagreed and upheld the requirement, as did most other circuit courts. In Zubik v. Burwell, the Supreme Court vacated the D.C. Circuit and other appeals court rulings so that the lower courts could try to work out a compromise, but It did not adopt Kavanaugh’s position that the requirement violated RFRA. Instead, the Court said it was expressing “no view” on the merits.
• In United States v, Jones: a D.C. Circuit panel ruled that it violated the Fourth Amendment to attach a GPS device to a suspect’s vehicle and use it to track its location. Kavanaugh dissented from a decision to deny full court rehearing, but suggests in his questionnaire answer that he disagreed only with the panel’s rationale. He claims that his dissent was a “separate opinion suggesting” that the panel should have considered and based its decision on the specific argument that the police violated the suspect’s Fourth Amendment rights by “trespassing on his property” to install the GPS device, and claims that the Supreme Court later “agreed with the position espoused in my separate opinion.” In fact, his dissent stated explicitly that he agreed with an additional dissent that argued that the panel’s decision was wrong because it was “inconsistent” with prior precedent. Kavanaugh went on to suggest that another reason that the Court should grant rehearing was to consider the property-based Fourth Amendment argument. But it was not Kavanaugh’s “position” that this argument was correct; to the contrary, he stated specifically in his dissent that he didn’t “yet know” if he agreed with it. Although the property-based theory was an important basis for the Supreme Court ruling, so was the reasonable expectation of privacy.
• The recent CRS report notes that the D.C. Circuit decision in the Garza abortion case was vacated by the Supreme Court, but that does not mean that the Court agreed with or vindicated Kavanaugh’s dissent in that case. Instead, the decision was vacated as moot because the immigrant young woman was able to obtain an abortion thanks to the D.C. circuit majority opinion.
• Although the recent CRS report also notes that one criminal/habeas case (US v. Moore) was affirmed 9-0, that decision was just joined and not written by Kavanaugh. Another such case (Munaf v. Geren) was vacated and remanded 9-0.

Cases where only “Roberts 5” right-wing justices agreed with Kavanaugh (4)

Kavanaugh’s dissenting view was adopted in whole or in part by the Court in four cases, all of which were decided 5-4 with the “Roberts 5” in the majority and the four moderate justices vigorously dissenting. These include the Free Enterprise Fund case concerning the constitutionality of the Public Company Accounting Oversight Board; the White Stallion decision concerning cost-benefit analysis by the EPA; Coalition for Resp. Reg. v. EPA concerning greenhouse gas emissions by autos and trucks; and the recent Jesner ruling that foreign corporations cannot be sued under the Alien Tort Statute.

Cases where Court by consensus agreed with Kavanaugh (3)

There are only three such cases: United States v. Papagno , where the Court in a later opinion agreed with a unanimous Kavanaugh opinion adopting a more narrow interpretation of the Mandatory Victims Restitution Act than had some other courts; Wesby v. D.C., where the Court unanimously reversed the majority opinion and accepted his view of qualified immunity favoring police officers; and a reference among several other cases by Scalia in a footnote (4) in Lexmark Int’l v. Static Control Components to an unrelated standing point in a Kavanaugh dissent in Grocery Manufacturers.

NOTE: In an important environmental case, EME Homer City Gen. LP v. EPA (2012): The Supreme Court overturned a Kavanaugh decision rejecting an EPA rule that held upwind states partly responsible for air pollution they cause in downwind states. The Court’s decision was 6-2 and criticized Kavanaugh for reading “unwritten” requirements into the Clean Air Act, noting that a reviewing court’s job is to “apply the text” of the statute, “not to improve upon it.” [Mentioned in CRS rept Table A-3.]

In only 3 other cases in the recent CRS report did Court opinions cite Kavanaugh (CRS report tables A4 & 5):

• a repetition by Justice Thomas of the Free Enterprise quote above in an unrelated concurring opinion in Luis v. United States
• dissents by Thomas to denials of certiorari in cases sustaining gun limits (Silvester and Jackson) where Thomas refers to Kavanaugh’s dissent in Heller v D.C. re assault weapons ban as one of the few court of appeals opinions agreeing with Thomas’ view.

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