Kavanaugh on Thursday joined with the court’s five other conservatives to strike down President Biden’s vaccine-or-testing mandate for large businesses. But in a separate decision, he and Chief Justice John G. Roberts Jr. joined with the court’s three liberal justices in allowing Biden’s separate vaccine mandate for health-care workers to move forward.
Fox News host Tucker Carlson got the ball rolling Thursday night by muttering that Kavanaugh was a “cringing little liberal.”
“I’m sorry. I’m not going to ask you to respond to that,” he said to his guest, a former campaign adviser to Donald Trump, who nominated Kavanaugh in 2018.
Friday morning, Donald Trump Jr. also took aim at the man his father had nominated.
“The left broke Kavanaugh,” Trump Jr. said. “That was always their intention and it worked. They turned him into a Roberts.”
Carlson upped the ante Friday night, combining his and Trump Jr.'s attacks and going after Kavanaugh for tearing up during his confirmation hearing. “We didn’t understand at the time that something had broken inside of Brett Kavanaugh," Carlson said of the confirmation moment, "that on some level his tormenters now controlled him.”
Also on Friday, perhaps Donald Trump’s likeliest successor as a GOP presidential nominee, Florida Gov. Ron DeSantis (R), joined in.
“Honestly, Roberts and Kavanaugh didn’t have a backbone on that decision — that’s the bottom line,” said DeSantis, who has been among the GOP’s foremost critics of vaccine mandates.
So that’s the most popular conservative cable news host, the former president’s son and perhaps the most ascendant not-named-Trump Republican in the country all going after Kavanaugh in very pointed ways and suggesting that he has effectively caved to pressure from the left.
This hasn’t come out of nowhere — conservative unrest has built with Kavanaugh for some time as he has emerged as perhaps the court’s swing vote — nor is Kavanaugh the only Trump appointee to be on the receiving end of such treatment.
In 2020, Trump’s first of three nominees, Justice Neil M. Gorsuch, received a fair amount of blowback for authoring an opinion extending workplace protections to LGBTQ employees, among other votes. Years earlier, it was Roberts who emerged as more of a swing vote than conservatives had hoped after he was nominated by President George W. Bush — with Roberts’s biggest sin being upholding Obamacare.
But Kavanaugh has since surpassed them as the subject of consternation. According to a book released last summer, Trump reportedly said he was “very disappointed” in Kavanaugh.
“There were so many others I could have appointed, and everyone wanted me to,” Trump said, adding, “I don’t want anything … but I am very disappointed in him, in his rulings.”
Trump repeatedly cited the idea that he had saved Kavanaugh’s career, particularly in the face of a fierce backlash over decades-old sexual assault allegations during Kavanaugh’s confirmation hearings.
“In retrospect, he just hasn’t had the courage you need to be a great justice,” Trump said. “I’m basing this on more than just the election.”
You don’t have to look closely to see the similarities between what Trump was saying then and what other prominent Republicans are saying now: He doesn’t have the “courage” or the “backbone.” The left “broke” him. He may actually be a liberal.
It’s a rather transparent effort to appeal to the side of Kavanaugh that we saw during his confirmation hearings — the fiery jurist who responded angrily to the allegations made against him. And more than that, Kavanaugh seemed to suggest some kind of retribution.
He called the Democrats who railed against him “evil” and, turning to them to address them directly, said, “You sowed the wind,” and “the country will reap the whirlwind.”
But what bookended that performance — and his ultimate confirmation — was plenty of conservative consternation about him, irrespective of the personal allegations. Conservatives worried before his nomination that his lower-court decisions on Obamacare and other social issues were insufficiently to their liking, and they mounted a late push against his selection.
Since then, Kavanaugh has arguably conducted himself along the lines of what you would’ve expected before his confirmation hearings — conservative, but more in the mold of the type of establishment conservative he had long been. It’s turned him into the most frequent swing vote on the court and the justice most often in the majority. Along the way, this has meant siding with liberals sometimes, such as in the health-care vaccine mandate case, a key Fourth Amendment case, a death penalty case and a case allowing iPhone users to sue Apple over the prices of its apps.
Shortly before the 2020 election, Sen. Ted Cruz (R-Tex.) told The Hill’s Alexander Bolton that he had raised concerns with Trump about Kavanaugh’s and Gorsuch’s nomination.
But Cruz added: “It is too early to assess the tenures of Justices Gorsuch and Kavanaugh. These things are typically measured in matters of decades rather than just a couple of years.”
A little more than a year later, some leading conservative firebrands are clearly not content to wait for decades of Kavanaugh decisions. They’ve decided to put him on notice that they’ll go after his character at the drop of a hat when he rules the wrong way — even when he rules the right way the very same day.
This post has been updated.