Well, Justice Brett Kavanaugh has done it once again.
On Monday, the U.S. Supreme Court’s junior-most justice, the lifelong inside-the-Beltway D.C. swamp creature who Daniel Horowitz once perfectly described as “Karl Rove in a robe,” sided with the Court’s four liberals in an egregious endorsement of a dubious antitrust legal theory that eschews traditional judicial norms and prostrates the Court before the ever-zealous plaintiff’s bar. Some overeager anti-Silicon Valley “conservatives” seem to be praising Kavanaugh for “taking on” Big Tech, but the reality is that there is nothing even remotely conservative about unduly expanding the inherently flawed corpus of antitrust law so as to incentivize unhinged litigiousness and enrich plaintiff’s attorneys. And, as Justice Neil Gorsuch’s excellent dissent carefully notes, it is even more non-conservative to incentivize that litigiousness by means of undermining rudimentary legal theories of “proximate causation” that every first-year law student is taught.
This is hardly the first time that Kavanaugh has disappointed the Right since joining the nation’s highest court. Indeed, since joining the Court, the jurist who wrote the legal roadmap to save Obamacare has consistently lived up to his milquetoast establishment Republican pedigree. In February, he joined the Court’s liberals and the new swing vote, Chief Justice John Roberts, to summarily reverse the Texas Court of Criminal Appeals in a procedurally arcane death penalty case that should never have come close to receiving expeditious summary reversal treatment. The normally reliable conservative triumvirate of Justices Thomas, Gorsuch, and Alito dissented.
Kavanaugh has actually fairly consistently joined the liberal bloc on death penalty-related cases: In March, Kavanaugh joined the liberals in staying an execution of a Buddhist man in Texas — a stay that Justice Alito today eviscerated as “seriously wrong.” Perhaps even more troublingly, Kavanaugh in December joined Roberts and the liberals to deny the Court from hearing contentious appeals about various state governments defunding Planned Parenthood, the nation’s largest prenatal infanticide mill, from Medicaid programs — denials regarding which Justice Thomas acerbically mused: “What explains the court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.'” Finally, Kavanaugh has even flexed his moderate, non-conservative “bona fides” when it comes to less hot-button, more strictly procedural issues: In February, he once again joined Roberts and the liberals, over a Thomas/Gorsuch/Alito dissent, to hold that lawyers may not disregard their clients’ instructions to file appeals even in instances wherein the clients had voluntarily waived their right to appeal in their plea agreements.
To be sure, Kavanaugh’s warming up to the D.C. legal swamp has already paid him social capital dividends. Yesterday, leftist Adam Liptak of The New York Times had a tendentious juxtaposition piece wherein he amusingly compared Kavanaugh’s “more cautious and workmanlike” demeanor to fellow Trump nominee Gorsuch’s “impatient” dismissiveness with respect to the Court’s oral advocates. And a USA Today profile last month went so far as to characterize Kavanaugh as swing vote Roberts’ “wingman.”
The reality is that we are not looking right now at a 5-4 “conservative” majority on the Court. Instead, we are looking at three (usually) solid conservatives, four liberals who usually vote in lockstep with one another to further the progressive project of incrementally unmooring the nation from its Founding-era constitutional strictures, and two vaguely right-of-center swing votes who seem to care a lot about the Court’s “institutional integrity” and public optics. It is not a 5-4 Court, but a 4-3-2 Court.
So what gives?
Many conservatives, including Daily Wire Editor-in-Chief Ben Shapiro, were publicly skeptical of Kavanaugh during the brief nomination sweepstakes last summer that followed Justice Anthony Kennedy’s retirement. Ben and others were absolutely right to oppose Kavanaugh being nominated, at that time. There were a myriad of better options, including but hardly limited to the publicly considered alternatives of Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit and Sen. Mike Lee (R-UT). I am a longtime member of the Federalist Society and a close follower of the “legal conservative” movement, and it is unclear to me, to this day, whether Brett Kavanaugh has ever identified — or will ever identify — as a constitutional originalist. A principled constitutionalist Brett “country club Republican” Kavanaugh is not.
The reality is that, for a host of reasons, conservatives will likely never win the “long game” on winning back the judiciary. Conservatives are structurally disadvantaged for reasons having to do with variegated reasons of intellectual modesty vis-à-vis the originalist project itself, the one-way ratchet that is the anti-republican travesty known as judicial supremacy, rigged rules of standing for activist leftist interest groups, conservative judicial capture via the “Greenhouse Effect,” leftist lower court judges willfully defying Supreme Court precedent whilst conservative lower court judges view themselves as bound, and the blunt reality that the faux-intellectual ruse of leftist “living constitutionalism” views itself as inherently outcome-oriented in a way that originalism simply is not.
Conservatives should recalibrate and focus more intellectual and policy attention not on the monolithic “confirm judges!” legislative agenda cartel, but upon encouraging efforts by the two political branches to openly push back upon and resist our runaway, self-aggrandizing black-robed masters. To the extent they continue to focus on judicial nominations — and Supreme Court nominations, in particular — I have identified three broad criteria for which we ought to carefully vet prospective nominees: (1) full-spectrum conservatism, (2) stiff resistance to the “Greenhouse Effect,” and (3) eagerness to aggressively correct course. I laid out the argument here in late February.
Hopefully, conservatives correct course and do so soon. Because the very last thing we need is more Brett Kavanaughs.