In 2011, Judge Brett Kavanaugh was selected at random to rule on whether President Barack Obama’s signature legislative achievement, the Affordable Care Act, was constitutional.
It was a career-defining moment for the aspiring Supreme Court justice, who was 46 at the time. The case promised to be a political bomb splitting two powerful forces. On one side was the Republican Party, which made Kavanaugh a judge and wanted to see the law invalidated under a limited vision of federal authority to regulate interstate commerce.
On the other were millions of Americans poised to gain access to health insurance — in some cases for the first time ever — backed by scholars who said axing the law would be a grave error of judicial activism and taint the courts.
Kavanaugh ducked the issue.
While the other two judges on the D.C. Circuit Court of Appeals panel ruled to uphold the law, Kavanaugh dissented and said the lawsuit should be dismissed for lack of standing until after a tax penalty at the heart of the challenge took effect. He cited an 1867 statute known as the Tax Anti-Injunction Act. In doing so, he managed to avoid touching the case on its merits.
Seven years later, Kavanaugh, now 53, is President Donald Trump’s nominee for the U.S. Supreme Court, and if he secures Senate confirmation, that artful dodge is likely to have protected him from political doom.
“When his decision came down, I remember thinking ‘Oh, well that’s savvy,’” said Orin Kerr, a professor at the University of Southern California’s Gould School of Law. “Now, that doesn’t mean it was wrong. Cynicism has its role, but it may be his good faith belief. It just so happened that those were two pretty unpalatable and tough political options at the time, if he was thinking about that. And his decision was a way out.”
Had Kavanaugh voted to validate the ACA, or Obamacare as it’s popularly known, he probably wouldn’t have been nominated by Trump. As a candidate in 2016, Trump made opposition to Obamacare a key campaign platform. He promised voters he wouldn’t pick judges who would uphold the law, and criticized Chief Justice John Roberts for doing so in the court’s 5-4 decision in 2012.
But had Kavanaugh voted to strike it down, his confirmation prospects now would be in jeopardy with pivotal red-state Democrats and moderate Republican senators who want to keep the law’s protections for people with pre-existing medical conditions.
Eyes on Prize
Kerr noted that around the time of the D.C. Circuit ruling, the widespread legal consensus was that the Supreme Court would uphold Obamacare by a margin as lopsided as 8 to 1, given its precedent on the commerce clause.
“So a conservative circuit judge would be in a bind. Follow the precedent and you outrage your party. Strike down the law and you not only have to reach, but you’re out of step with where the Supreme Court is likely to be,” Kerr said. “And either of those options make your future prospects tougher.”
“It helped,” Jonathan Adler, a Case Western Reserve University law professor and member of the Federalist Society, said of Kavanaugh’s move to dismiss the case. “With the benefit of hindsight, was that better than if he had joined the panel’s majority in that case? Sure.”
“But I don’t share the view that this was some sneaky way to try and preserve his viability,” Adler said, arguing that his position was a plausible reading of the relevant law.
Kavanaugh’s fate stands in contrast to that of Jeffrey Sutton, a conservative jurist on the Sixth U.S. Circuit Court of Appeals who was once seen as being on track for the Supreme Court — until he voted to uphold the ACA when it came before him. Adler said Sutton would have been a “strong nominee” but “it’s certainly possible” that decision kept him off Trump’s list of prospects.