WASHINGTON — As a Supreme Court justice, Brett Kavanaugh would have less jurisdiction than the previous nominee over cases such as Roe v. Wade — which established the right to abortion — and the nation’s highest court has issued narrower rulings since the landmark decision, particularly on the intersection of religious liberty and reproductive rights.
But if President Donald Trump nominates Kavanaugh, he will have extraordinary access to the court’s record. He will be allowed to review hundreds of hours of summaries of cases, including dissenting opinions. And, like Chief Justice John Roberts and Justice Neil Gorsuch before him, he will likely read thousands of opinions in his lifetime.
Kavanaugh’s record suggests he would not want to go out of his way to overturn or significantly alter landmark cases such as Roe. But, as a justice, he has said he would revisit the cases.
That has earned him applause from conservative groups that helped put him on the high court shortlist for the previous nominee, Judge Merrick Garland. The groups, however, generally did not champion him as a nominee of Chief Justice Roberts, who has limited judicial activism and instead limited what the court could do by taking a middle ground in many controversial cases.
To them, Kavanaugh is the perfect fit. As an appellate judge for the past decade, Kavanaugh sided most often with conservatives, writing the majority opinion in one of the year’s most important 5-4 decisions, which upheld the scope of President Donald Trump’s executive order temporarily barring travel from six majority-Muslim countries.
That could create a clear road map for conservative judges to prevent the judiciary from legislating from the bench and to push back against abortion and LGBT rights.
“If Brett Kavanaugh is confirmed he will, in our view, be an outstanding Supreme Court justice,” said Brian Brown, president of the National Organization for Marriage. “After Merrick Garland, I don’t see how Donald Trump could do better than Brett Kavanaugh.”
And once named, Kavanaugh could serve the remaining months of the term — leading up to midterm elections in November — before potentially putting Kavanaugh in the Supreme Court in January.
The court also has a rigorous public policy approach to its docket, in large part driven by the White House. But the court will have to decide some of the most divisive political questions of the day on the bench without having a court majority on the bench in the final two months of the term. Trump’s first two justices have not offered an opinion that would seem to challenge the court’s tradition of avoiding the major issues of the day until they had formed an understanding with the next justice, said Pete Spiliakos, a law professor at the Catholic University of America and a longtime congressional staffer.