Joan Biskupic has a series of inside-baseball pieces about that last Supreme Court term, and since I try to reward reporters who facilitate violations of the contrary-to-the-public-interest omerta that surrounds Supreme Court deliberations, I’ll discuss them in turn. The Kavanuagh article begins by talking about Kavanaugh trying and failing to persuade the Court to postpone some controversial cases until after the election. (I am beginning to wonder if Lisa Blatt’s assertion that Kavanuagh is an apolitical legal technician might not be entirely accurate!)
In addition to his failed strategic maneuvers — maybe he’ll learn from Roberts to be a little more subtle, though I doubt it — Biskupic notes that he’s taken on his predecessor’s self-designated role of writing separate opinions arguing that you shouldn’t hold his joining incredibly shitty judgments/opinions against him, he’s a nice guy really:
In the recently completed session, Kavanaugh clung to his conservatism, offering no surprises and pleasing the right-wing advocates who had pushed for his confirmation. Still, he went out of his way to separate himself from hard-hitting conservatives Thomas and Alito, and sometimes Gorsuch. Kavanaugh would hedge his rhetoric, trying to offer some sympathy for the people he was voting against, perhaps mindful of the reputation he wanted to counter and rebuild from 2018.When the justices took up the so-called Dreamers case, Kavanaugh voted — in dissent — to favor the Trump rescission of the Obama administration’s Deferred Action for Childhood Arrivals program for young undocumented immigrants who had been brought to the US as children.Yet he chose to split from the three other conservative dissenters, opening his statement with regard for Dreamers: “They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.”The same was true when Kavanaugh chose not to side with fellow conservatives Roberts and Gorsuch to extend the 1964 Civil Rights Act to protect gay and transgender workers. He did not equivocate on the merits in that dispute. He cast a vote against expansion of the anti-discrimination law.
Still, he plainly struggled with the tone to take in dissent. Alito, for example, was writing an aggressive statement attacking the majority’s rationale. Kavanaugh decided to strike a softer chord. And he made a point of asserting in his dissenting opinion that, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit. … “
Who wouldn’t want to be told how GRITTY they’re being in the face of people like Kavanaugh who want to deny them their civil rights?
Incidentally, I was doing lecture prep on Hudson v. Michigan today. Scalia’s opinion holding that the exclusionary rule should not apply to searches that do not observe the knock-and-announce rule was a profoundly embarrassing monument to bad faith, and Breyer — neither inclined to write in anger nor particularly civil libertarian — appropriately treated it in his dissent with the legal discourse equivalent of the treatment the Santoro brothers got at the end of Casino. This motivated one of Kennedy’s “sure I voted for fascism, and sure the opinion mischaracterized several precedents so egregiously I made Nino put that stuff in a separate section I wouldn’t sign, but I’m a nice guy really” comedy classics:
Two points should be underscored with respect to today’s decision. First, the knock-and-announce requirement protects rights and expectations linked to ancient principles in our constitutional order. The Court’s decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt…
As to the basic right in question, privacy and security in the home are central to the Fourth Amendment ’s guarantees as explained in our decisions and as understood since the beginnings of the Republic. This common understanding ensures respect for the law and allegiance to our institutions, and it is an instrument for transmitting our Constitution to later generations undiminished in meaning and force. It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry. Security must not be subject to erosion by indifference or contempt.
“We believe that no-announce entries are a gross violation of our most cherished liberties, and you should not let think fact that I just cast the swing vote to take away the only remotely viable remedy and ensured that such violations will be much more common cause you to think otherwise.” I don’t think anything can top his pathetic capstone concurrence in Korematsu II but this comes close.