Who is Brett Kavanaugh?
That may seem like an odd question. For a few weeks last September, America and the world learned almost everything about Kavanaugh: his tenure as a judge on the D.C. Court of Appeals and as a lawyer for President George W. Bush; his privileged education in Maryland and New Haven; most of all, the allegation that he sexually assaulted Christine Blasey Ford when they were in high school. Kavanaugh’s Supreme Court confirmation hearings left few Americans without an opinion about him.
But now that Kavanaugh is on the Court, who he is matters more than ever. The 54-year-old lifetime appointee replaced Justice Anthony Kennedy, who for decades occupied the swing seat on the bench, casting the decisive vote on legalizing same-sex marriage, protecting corporations’ political spending and affirming an individual right to own guns. Those issues and more may hang on what kind of justice Kavanaugh becomes and how he votes.
The process is less predictable than anyone who watched the confirmation battle might suspect. Kavanaugh could veer hard to the right, as Justice Clarence Thomas did after Anita Hill accused him of sexual harassment during his confirmation hearings in 1991. He could settle toward the center, as Kennedy did after the contentious nomination battles over Robert Bork 1987. Or he could become something more complicated than the most fervent agonists on either side expect.
As his first term ends, everyone—from Kavanaugh’s oldest friends to his fiercest detractors, from clerks to court-watchers to his eight new colleagues—is scrutinizing the new justice for signs of where he will take the court. A close look at Kavanaugh’s voting this term reveals that he is more reliably conservative than Kennedy, helping push the court right since his confirmation. He has formed an influential alliance with Chief Justice John Roberts, and, to a lesser extent, Justice Samuel Alito, both Bush-era nominees.
But Kavanaugh has also voted with some of the liberal justices as often as he did with the far-right flank during his first term. He sided with justices Stephen Breyer and Elena Kagan, for example, the same percentage of the time that he did with President Donald Trump’s other appointee, Justice Neil Gorsuch, according to data collected by Adam Feldman, a lawyer who writes the Empirical SCOTUS blog.
Kavanaugh has already provided the decisive vote in eight 5-4 rulings with a traditional ideological split, including cases related to immigrant detention, the death penalty and sovereign immunity. In one of the most hotly anticipated cases of the term, he and the other conservatives ruled that partisan gerrymandering of legislative districts is constitutional. And over the coming years, Kavanaugh will wield enormous power as the new, more conservative court takes up pivotal subjects like environmental regulations, guns and religious liberty.
The wild card in Kavanaugh’s effect on the court, and America, is his own effort to move past the confirmation hearings. Unlike others who have been accused of past sexual abuse in the #metoo era, he has a lifetime appointment to a position of power from which to try, and already he is using his spot on the court to do so. Rather than always sign on anonymously to his colleagues’ rulings, for example, he has issued multiple concurring opinions, laying out his thinking in ways first term justices don’t often do.
For many, nothing he does on or off the court will change the judgment they have already rendered. The confirmation hearings were a torment for Blasey Ford. She never wanted to testify and her life has been upended by the public airing of the suffering she had carried for years. “Having Brett Kavanaugh on the Supreme Court, with allegations of sexual misconduct still very fresh in the public’s mind, strikes millions of Americans as a dagger through the heart,” says Nan Aron, founder of liberal judicial advocacy group Alliance for Justice.