The Unraveling of Brett Kavanaugh's Biggest, Dumbest Lie [View all]

[In It to Win It]

Balls & Strikes

Brett Kavanaugh really thought he’d come up with something insightful. Back in December 2021, the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, widely viewed as the conservative legal movement’s best chance to overturn Roe v. Wade after five decades of trying. In an expository monologue disguised as a question for Julie Rikelman, who represented the lone remaining abortion clinic in Mississippi, Kavanaugh bemoaned that Roe had “forced” the Court “to pick sides on the most contentious social debate in American life,” rather than leaving it to “the people, to the states, or to Congress.” The Court, he suggested, could instead be “scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” and thus “return to a position of neutrality on that contentious social issue, rather than continuing to pick sides.”

When the Court released its opinion in Dobbs, Kavanaugh indeed voted to end the right to reproductive freedom, the task for which President Donald Trump had nominated him to the Court four years earlier. But in a concurrence, Kavanaugh returned once more to his favorite sets of buzzwords, reiterating his view that the Constitution is “neither pro-life nor pro-choice.” Although he professed to “greatly respect” those who disagree, the result in Dobbs, he concluded, “heeds the constitutional principle of judicial neutrality,” and “returns the issue of abortion to the people and their elected representatives.” In 12 pages, Kavanaugh extolled the virtues of “neutrality” 13 times. If his opinion were a high school civics essay, his teacher would have docked him points for repeating himself to hit the word count.

The majority opinion, written by Justice Samuel Alito, was similarly sanctimonious, if less performatively courteous to the people whose rights it erased. By overruling Roe and Casey, Alito wrote, the justices were extricating themselves from the messiness of setting abortion policy, and “return[ing] that authority to the people and their elected representatives.”

I do not mean to surprise you here, but as it turns out, Kavanaugh and Alito were lying. Earlier this month, the Supreme Court allowed a draconian abortion ban in Idaho to take effect, blocking a lower court order that limited a pregnant person’s right under federal law to obtain abortion care during medical emergencies. (The case should not be confused with a different decision, this one out of the ultraconservative Fifth Circuit Court of Appeals, that similarly attempts to subjugate the health and safety of pregnant people to the whims of anti-choice state lawmakers.) The Supreme Court will hear oral argument in the Idaho cases, Moyle v. United States and Idaho v. United States, sometime in April.

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