For a generation, legal conservatives chanted, "No more Souters." This mantra arose in the wake of the nomination of Justice David Souter, who turned out to be a consistent liberal vote. After NFIB v. Sebelius, the Obamacare case, conservatives adopted a new mantra: "No more Robertses." Never again would conservatives select a Justice who would rewrite a law in the name of judicial restraint. Yet, to replace Justice Kennedy, President Trump managed to select a Justice who has voted with Chief Justice Roberts nearly 95% of the time! Roberts and Kavanaugh are cut from the same cloth. And Kavanaugh consistently votes with Roberts, and the Court's three progressives, to form a majority. But this voting pattern should not come as a surprise. Like with Justice Gorsuch, Judge Kavanaugh's jurisprudence-under-pressure was on full display.
Flash back to 2011, as the constitutional challenges to the Affordable Care Act were trickling up to the Supreme Court. One of the cases, Seven-Sky v. Holder landed before Judge Kavanaugh on the D.C. Circuit Court of Appeals. The other two judges on the panel (Silberman and Edwards) upheld the ACA's individual mandate. This provision, the panel found, could require people to purchase health insurance based on Congress's power to regulate interstate commerce. But Judge Kavanaugh took a very different path based on Congress's taxing power. The analysis here is very complex. Indeed, I devoted an entire chapter of my 2013 book on the Obamacare litigation to Kavanaugh's approach. (You can read an excerpt here.) To over-simplify things, there are four things to know about Kavanaugh's opinion.
First, Kavanaugh found that the court lacked jurisdiction because the "tax" that enforced the ACA would not be collected until 2014. Critical to that jurisdictional analysis, however, was a finding that the Affordable Care Act in fact imposed a tax, rather than a penalty. Kavanaugh repeatedly referred to a "tax penalty." Having found that the court lacked jurisdiction, Judge Kavanaugh should have simply ended his opinion. But he didn't. He never does. He always keeps writing.
