Kavanaugh will move the Court sharply to the right — but some conservative critics say it’s not enough.
DC Court of Appeals Judge Brett Kavanaugh, Donald Trump’s choice for the next Supreme Court justice, is widely seen by both his liberal critics and by conservative commentators as a relatively “establishment” choice, with an Ivy League background impeccable conservative credentials.
Vox’s Matt Yglesias called him “a candidate straight out of Supreme Court central casting.” In his acceptance speech last night, he went out of his way to signal himself as a moderate, highlighting his friendships with left-leaning judges, his admiration for the women in his life (perhaps to allay fears that he would overturn Roe v. Wade), and his mother’s work initially as a teacher in predominately African-American schools.
In many ways, Kavanaugh fits the mold of a traditional “conservative” judge. Certainly, his partisan bona fides — he was heavily involved in the Starr investigation of Bill Clinton and also worked for George W. Bush’s legal team during the 2000 Florida presidential election recount scandal — have made him a popular figure on the right But on questions of religious liberty, and the degree to which the demands for religious freedom should exempt individuals and institutions from wider public policy, Kavanaugh has become a more divisive figure.
In recent years, there have been a series of major Supreme Court cases centered around defining the contours of religious liberty in America, particularly when they conflict with wider anti-discrimination or health care policies. Cases like Burwell v. Hobby Lobby established the rights of closely held religiously affiliated for-profit corporations to withhold coverage of contraception for their employees.
Trinity Lutheran v. Comer saw the Court uphold the right of a church to receive state funds for the construction of a playground. More recently, the Masterpiece Cakeshop case upheld the right (albeit on a technicality) of a Colorado baker to refuse to make a wedding cake for a same-sex couple because doing so would be against his religious beliefs.
In isolation, each of these cases was quite narrowly conceived. But more broadly, they speak to a growing trend in the American legal system by which the rights of religious institutions and individuals are increasingly judged to take precedence over other policies and laws. And, as a conservative judge in an increasingly right-leaning Court, Kavanaugh’s approach to religious liberty issues will determine the intensity of that trend for decades to come.
There’s no consensus on Kavanaugh’s stated religious freedom stances
To some of his conservative admirers, Kavanaugh, who is Catholic, is a “warrior of religious liberty,” as the National Review’s Justin Walker put it.
He has, for example, argued fervently against the federal Health and Human Services mandate that required religious employers to cover employee’s contraception. He argued in his dissent in 2015’s Priests for Life v. United States Department of Health that the mandate threatened to “substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.” (The case was ultimately decided against Priests for Life.)
In another case, 2010’s Newdow v. Roberts, argued in the DC District Court, Kavanaugh rejected a challenge brought by a prominent atheist to the tradition of having prayers at the presidential inauguration, and the line “so help me God” in the presidential oath.
While he was clear that “in our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all,” he came to the conclusion, ultimately, that there was sufficient precedent for the prayers’ existence, and that “we … cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.” (Ultimately, the other judges did not reach the merits of the case, and it was dismissed).
However, some of Kavanaugh’s more conservative critics have argued he doesn’t go far enough. An anonymous contributor to the conservative website the Federalist authored a piece calling Kavanaugh’s record on religious liberty “troubling.” The author argued that Kavanaugh’s willingness to even decide the case on the merits — i.e., to hear and consider the case at all, dissenting with two judges who ultimately found that Michael Newdow lacked the standing to make the case — was itself a sign that he was willing to open the door to “other frivolous claims attacking religion in the public square.”
Likewise, Kavanaugh has been criticized for suggesting, in response to the 2014 Hobby Lobby case involving another Christian organization reluctant to cover contraception for its employees, that “Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organization”
The major Christian right figures in Trump’s orbit have largely greeted news of Kavanaugh’s confirmation with measured, if vague, optimism, celebrating the choice of a conservative judge more generally, and casting the news as a win for Trump specifically. The promise of a more conservative Supreme Court has long bolstered Trump’s support among evangelicals, and many leading evangelicals have framed the news in terms of Trump keeping his promises to that community.
Robert Jeffress, one of Trump’s most significant evangelical advisers, said in a statement emailed to journalists, “Evangelicals are ecstatic because in less than two years President Trump has filled a second Supreme Court vacancy with a second conservative—just as he promised. The fact that the president chose another conservative justice is more important than the name of that justice. This is a huge win for President Trump.”
Likewise, Paula White, another of Trump’s main evangelical advisers, highlighted how Trump’s pick of Kavanaugh showed that “President Trump has done it yet again, fulfilled a promise exactly as he said he would.”
Some conservative Christian organizations have expressed their doubts on Kavanaugh, however. The American Family Association formally opposed the nomination, saying in a statement that “Judge Kavanaugh’s reasoning on religious liberty, Obamacare and issues concerning life have proven to be of major concern.”
Overall, however, the fact that Kavanaugh is seen as a “moderate” pick on religious liberty cases tells us more about the nature of discourse about religion in America than it does about Kavanaugh himself. Sure, by the standards of an administration that regularly cites the Bible to legitimize its complete authority, that has produced executive orders demanding that “religious liberty” be observed by the Department of Justice even when it conflicts with anti-discrimination laws, and that regularly implies Trump was chosen by God, Kavanaugh is a moderate.
As it’s clear from his writings on Hobby Lobby, Kavanaugh is unlike many in Trump’s inner circle who say religious liberty should be total and absolute, or take priority over every single other governing principle of America.
But his seeming moderation, therefore, should only highlight the degree to which the Trump administration has normalized extremity. Even the way in which the very phrase “religious liberty” has been co-opted by a particular, religious-conservative definition of what that liberty should look like signifies the degree to which (white, usually evangelical) right-wing Christianity has infused our political landscape. And in that landscape, there are no real moderates.