Julio Gonzalez, M.D., J.D.
There was a time, at the very beginning, when the discussion regarding Justice Brett Kavanaugh's confirmation dealt with issues of substance. Admittedly, it was a very brief period, but during that time there were many who observed that then-Judge Kavanaugh was no conservative, that he had served too long in the appellate line, and that his views were not so much about protecting the Constitution against Progressive attacks, but about protecting stare decisis and upholding the rule of law as decided by prior courts.
There were those who raised the concern that then-Judge Kavanaugh was not the strongest of textualists. Most notably, political critic Ben Shapiro observed that Kavanaugh was "known for walking across the aisle." Specifically, Shapiro cited Kavanaugh's agreement with Chief Justice John Roberts in Sissel v. Department of Health and Human Services and in Seven-Sky v. Holder that Obamacare penalties were taxes, opening the door for the legalization of the federal encroachment on health care.
My first observation of Kavanaugh as a moderate stemmed from his continued insistence that as a Supreme Court justice, he would consider himself a member of a team, working with his colleagues to deliver a product.
I don't subscribe to that view. Rather, I believe it fundamental that each justice considers himself or herself the last bastion of independent thought and review a case on the merits, independently of what others may think, and then, sell his or her position to others. If he or she is successful, that's great. If not, there's something called a dissent.
And now, on his first vote of significance as a member of the Supreme Court, Justice Kavanaugh seems to solidify the perception that he is indeed a moderate and an eager member of Team Roberts. Because of this, a case called Gee v. Planned Parenthood will never see the Supreme Court.
In Gee, the Court was asked whether a private citizen had the right to bring a legal action against the state for decisions made regarding Medicaid providers. The question had been debated before in other circuits and the answer had consistently been that a private citizen does have the right to seek action in the court; that is, until now, when the court in Louisiana said it did not. The question is a procedural one, not a substantive or social one, but as Justice Thomas said in his dissent, the problem here is that "some respondents are named 'Planned Parenthood.'"
In deciding whether the Court will hear a case, four members voting in favor of hearing the case, or "granting certiorari," is all that is required. Predictably, the four liberal members of the Court voted against hearing the case. The three staunch conservatives voted in favor. In seeking a fourth, all eyes turned to Chief Justice John Roberts and Kavanaugh. What would they do?
Roberts voted against. And disappointingly, and perhaps ominously, Kavanaugh sided with him.
Clearly, it is premature to base any major impressions on Kavanaugh's future voting patterns on the strength of this one vote on a procedural question. But two things are certain: Kavanaugh will not be a conservative stallion, and Roberts just found himself a malleable "team member."
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer serving as State Representative for South Sarasota County in Florida. He is the author of The Federalist Pages