The Brett Kavanaugh revenge tour
By 
One of the most important Fox News Grandpa turns was made by Anthony Kennedy, who after a fairly moderate end to the Obama years spent a term voting like Sam Alito before ensuring that his seat would go to a party-line neoconfederate reactionary. Just as he promised during his dry-drunk partisan rant at his confirmation hearings, the specific neoconfederate reactionary he was replaced with has quickly gone Alito, despite his embrace of the Kennedy tradition of vaguely apologetic concurrences:
On Monday, the Supreme Court affirmed the federal government’s supremacy over the states, a principle established explicitly in the Constitution, enshrined by centuries of precedent, and etched into history by the Civil War. The vote was 5–4. Four dissenting justices would have allowed the state of Texas to nullify laws enacted by Congress, pursuant to its express constitutional authority over immigration, that direct federal law enforcement to intercept migrants crossing the border. These justices would have allowed Texas to edge ever closer to a violent clash between state and federal forces, deploying armed guardsmen and razor wire to block the president from faithfully executing the law.
It was no surprise that three of these dissenters—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—sided with Texas, given their overt hostility to the Biden administration’s immigration policies, which verges on rejecting the president’s legitimate right to govern. It was, however, deeply alarming to see who joined them: Brett Kavanaugh, the justice who expends tremendous energy assuring the nation that he is reasonable, moderate, and inclined toward compromise. Kavanaugh’s vote on Monday was none of those things; it was, rather, an endorsement of a state’s rebellion against federal supremacy.
Really, though, should we be shocked that Kavanaugh sided with the Texas rebels over the U.S. president? Maybe not. After spending his first few years on the bench role-playing as a sometimes-centrist, Kavanaugh appears to be veering to the right: His votes over the past several months have been increasingly aligned with Alito and Thomas rather than his previous ally, Chief Justice John Roberts. This shift is still nascent, but it grows more visible with each passing month. And it bodes poorly for the country as we careen toward an election that Donald Trump openly seems to hope the Supreme Court may rig for him.
Start with that jaw-dropping vote on Monday. It’s difficult to overstate how dire the situation had become in Eagle Pass, Texas, where Gov. Greg Abbott mounted his insurgency against the federal government. Migrants frequently cross over at Eagle Pass, so Border Patrol has a major presence in the area. Federal law grants border agents the right to access all land within 25 miles of the border and requires these agents to inspect and detain unauthorized migrants. Yet Abbott defied these statutes: He ordered the Texas National Guard to erect razor wire at the border, a barrier that ensnared migrants (to the point of near death) and excluded Border Patrol. Federal law enforcement was thus physically unable to perform the duties assigned to it by Congress, or to rescue migrants drowning in the Rio Grande. In response, border agents began cutting through the wire, prompting Texas to sue. The far-right U.S. Court of Appeals for the 5th Circuit dutifully issued an injunction prohibiting any federal destruction of the wire fencing.
The 5th Circuit’s injunction effectively allowed Texas to nullify federal law, in direct contradiction of the Constitution’s supremacy clause. Some of the oldest, most entrenched Supreme Court precedents forbid states from interfering with the lawful exercise of federal authority. It should have been easy for SCOTUS to grant the Biden administration’s emergency request by shooting down the 5th Circuit. Instead, the justices spent a baffling 20 days mulling the case—and, presumably, debating it behind the scenes. In the end, all the court could muster was a 5–4 order halting the 5th Circuit’s injunction, with Roberts and Justice Amy Coney Barrett joining the liberals. There were zero written opinions. The dissenters, including Kavanaugh, felt no obligation to explain their votes.
In a sense, Kavanaugh’s silence makes his vote even worse: Having lodged a protest against the single most important principle governing the relationship between the federal government and the states, the justice kept mum, forcing us to guess why he voted in support of nullification. Kavanaugh evidently felt that he owed us no explanation, no reasoning behind his desire to subvert executive authority in favor of a Confederate-flavored conception of state supremacy. His extremism was therefore compounded by an arrogant refusal to justify power with reason, an attitude fit more for a king than a judge.
And not for the first time: Just last month, Kavanaugh cast another silent, startling vote that aligned him with Alito and Thomas. On Dec. 11, the court refused to take up a challenge to Washington state’s ban on LGBTQ+ “conversion therapy” for minors, dodging a case that imperiled similar bans in nearly half the states. Even Gorsuch, Barrett, and Roberts wouldn’t take the bait—perhaps because the case was entirely bogus, cooked up by anti-LGBTQ+ activists despite the absence of a live controversy. But there was Kavanaugh, dissenting from the court’s rejection of the case, telegraphing his hunger to shoot down conversion therapy bans without even the fig leaf of a genuine dispute. Thomas and Alito each wrote angry dissents arguing that the court should’ve taken the case, while Kavanaugh stood alone in his reticence to explain himself. It seems the justice wants to establish a constitutional right to “convert” LGBTQ+ kids, an act that can amount to torture, but lacks the courage to even describe why.
As Stern goes on to argue, Kavanaugh has always been even more partisan than he is ideological, and his now frequently-expressed (if rarely personally defended) position that it is illegitimate for Joe Biden to govern is particularly bad news if there’s a disputed election in 2024. (After all, it may well have been his work on Bush v. Gore that set him on the path to the Supreme Court in the first place.)