I have written at some length about the Kavanaugh concurrence. Last term, in Dobbs and Bruen, we saw the Kavanaugh concurrences when he swings right. In both cases, Justice Kavanaugh decided questions that were not presented. In Dobbs, Justice Kavanaugh reached out to decide the right-to-travel issue. And in Bruen, he stated that states can require "mental health records checks" to obtain a carry permit. I won't rehash my criticism of these concurrences.
Recently, we have seen two Kavanaugh concurrences when he swings left in Allen v. Milligan and in Haaland v. Brackeen. Both cases share a common trait: he rules for the liberal side, but writes a short concurrence raising possible ways that conservatives may win in the future.
In Brackeen, Justice Kavanaugh joined Justice Barrett's majority opinion in full. He was MIA in the originalist debate between Justices Gorsuch and Thomas. The majority found that the plaintiffs did not have standing to bring a facial equal protection claim. Rather, Justice Barrett observed in Footnote 10, the "the individual petitioners can challenge ICWA's constitutionality in state court, as the Brackeens have done in their adoption proceedings." Justice Kavanaugh wrote a solo concurring opinion that stretched two paragraphs. He said that the "equal protection is serious" and "raise[s] significant questions under bedrock equal protection principles and this Court's precedents." It's serious and significant! Justice Kavanaugh predicted that "this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing." Will there even be four votes to grant certiorari in such a case? I can count to three: Thomas, Alito, and apparently, Kavanaugh. Will Justice Barrett, who just upheld this momentous social legislation turn around and say it is actually unconstitutional in most applications? I am doubtful, given her exceptionally high bar to disturb precedent. Justice Kavanaugh can write a powerful dissental, saying "this issue is still really serious!"
