People For the American Way

Kavanaugh Has Been Just As Dangerous As We Feared

News and Analysis
Kavanaugh Has Been Just As Dangerous As We Feared

October 6 marks a troubling date in recent Supreme Court history – the third anniversary of the then-Republican Senate’s confirmation of Brett Kavanaugh to the Supreme Court. Just as his right-wing followers promised and as progressives feared, in his short time on the bench, Kavanaugh’s replacement of Justice Anthony Kennedy has had a huge impact, harming people’s lives with respect to voting, reproductive rights, protection of health and safety, and many more. With a lifetime tenure ahead, Kavanaugh’s actions on the Supreme Court bench, along with those of his fellow Trump appointees, threaten future harm that will require action by Congress and the American people.

Start with voting rights. Kavanaugh cast a deciding vote in a 5-4 “shadow docket” ruling that took away the right of thousands of Wisconsin voters to vote absentee in the 2020 primaries, a result that one commentator called “one of the most brazen acts of voter suppression in modern history,” followed up by a similar vote concerning the November elections in that state. Kavanaugh also cast deciding votes in 5-4 rulings that prevented the Court from taking any action concerning blatantly partisan gerrymandering that harms people’s voting rights and that took voting rights away from thousands of Florida residents previously convicted of felonies. Most recently, Kavanaugh cast key votes in harmful rulings that injured disabled voters in Alabama  by banning curbside voting and that devastated the protections of Section 2 of the Voting Rights Act for voters across the country.

On reproductive rights, Kavanaugh was recently a deciding fifth vote to keep in place the draconian Texas ban on abortion care after six weeks without a hearing, a case likely to come back to the Court. He also cast a key vote to reinstate an FDA requirement that people must request abortion care drugs in person, which a lower court had suspended because of the COVID-19 pandemic. And in a troubling sign concerning the upcoming Supreme Court case from Mississippi that could overturn or eviscerate Roe v Wade, Kavanaugh argued in dissent that the Court should uphold a restrictive Louisiana abortion care law despite Chief Justice Roberts’ view that it should be struck down based on a recent precedent in which Justice Kennedy had played a decisive role.

Kavanaugh’s votes on the Court have also jeopardized health and safety protections by federal and state government during the COVID-19 pandemic. Most recently, in an unsigned “shadow docket” order following a recent Kavanaugh opinion, a divided Court struck down a CDC temporary eviction ban, threatening the “health of millions” according to  Justice Breyer. Beginning with a decisive fifth vote in a 5-4 “shadow docket” ruling in New York, Kavanaugh cast key votes in almost half a dozen cases to order special exemptions for religion from COVID-19 restrictions in states across the country, playing what dissenters called a “deadly game” in “second guessing the expert judgment of health officials” in dealing with a dangerous virus affecting more than “a million Americans each week.” When Justice Ginsburg was still on the Court, Kavanaugh dissented from a ruling that upheld such a requirement as applied to churches, claiming that it was “indisputably clear” that the health precautions violated a church’s rights.

Other examples of Kavanaugh undermining individual rights abound. Kavanaugh wrote a 5-4 opinion, which even Justice Thomas disagreed with, which made it much harder for victims of corporate lawbreaking to hold companies accountable through class actions when they violate the rights of many consumers. He cast deciding votes in 5-4 cases that required workers to use ineffective individual arbitration of  claims concerning corporate misconduct, took away Congress’ authority to protect the independence of the Consumer Financial Protection Bureau, and ruled that the family of a 15 year-old boy could not sue a border agent who shot and killed him when he was innocently playing with friends near the US-Mexican border.

All this does not even mention the Kavanaugh votes to uphold restrictive Trump policies that have since been repealed or the clearly defective FBI investigation of the charges of sexual harassment against him during his confirmation hearings. As Kavanaugh continues on the Supreme Court for life, it will be crucial for the American people to push Congress to do what it can to protect reproductive and other rights despite Court rulings. And progressives and moderates must do what right-wing extremists have successfully done for many years, and make the appointment of Supreme Court justices and other federal judges a key issue in both senatorial and presidential elections.


Brett Kavanaugh, Reproductive Freedom, Supreme Court, voting rights