Sometimes, Supreme Court Justice Sonia Sotomayor said recently, people ask how she has dealt with the arrival of her newest colleague, Brett M. Kavanaugh, and the allegations of sexual misconduct that accompanied his confirmation.
Revivals of allegations against Kavanaugh roil the White House, Capitol Hill and the Democratic presidential nomination trail.
Kavanaugh, 54, has done his best to keep it that way since his arrival nearly a year ago . He’s been an equal-opportunity collaborator, in the majority more than any other justice in cases the court decided in his first term. He agreed with some of the court’s liberal members almost as much as he agreed with some of the court’s conservatives, including Neil M. Gorsuch, the other justice chosen by President Trump.
Such evenness has brought grumbles from some conservatives about what they consider Kavanaugh’s go-slow approach. He has balanced that by voting in favor of every important Trump administration initiative that has reached the court during his tenure.
Trump responded to allegations against Kavanaugh in a new book by two New York Times reporters with a ferocious defense on Twitter. “DO YOU BELIEVE WHAT THESE HORRIBLE PEOPLE WILL DO OR SAY. They are looking to destroy, and influence his opinions - but played the game badly. They should be sued!”
At the Supreme Court, where nine people are bound together by life tenure and equally weighted votes: silence.
There is no doubt that justices — most especially Chief Justice John G. Roberts Jr. — do not relish another controversy bound to intensify the political battle over what they strive to portray as a nonpartisan court.
But there are institutional and strategic reasons to live and let live. The court’s decisions will not be respected unless the court is, the justices say. And when five votes determine which view of the law prevails, today’s adversary can be tomorrow’s ally.
Just a month after the bitter partisan battle over Kavanaugh resulted in a 50-to-48 Senate confirmation vote last fall, Justice Elena Kagan spoke to a group of law students at the University of Toronto.
Maybe she shouldn’t ask, a young woman in the audience said, but how can the court claim legitimacy on issues such as violence against women when two of its members have been accused of sexual misconduct? She was referring to Kavanaugh and Justice Clarence Thomas, whose 1991 confirmation exploded with Anita Hill’s charges of sexual harassment.
You’re right, Kagan, one of three liberal women on the court, told the student: “You should not have asked me that question.”
She added: “I’m a part of this institution. I care about it a lot, I care about my colleagues a lot, and that’s something I’m not going to be talking about.”
Thomas recounted in his memoir that, as soon as he was confirmed, Justice Byron White came to welcome him.
“It doesn’t matter how you got here. All that matters now is what you do here,” Thomas recalled White saying.
When Roberts last fall wanted to directly confront the idea of the Supreme Court as a political body, he chose to paraphrase “our newest colleague” to say that “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.”
It’s not surprising that the court closes ranks. The justices are linked for life, working closely together, getting to know one another’s families. Thomas has been at the high court nearly 30 years , Justices Ruth Bader Ginsburg and Stephen G. Breyer more than 25. The justices can write brutally about each other’s legal opinions, but they swear the personal affection is real.
Kavanaugh was hardly a stranger when he was elevated to the high court. He was a former clerk to White and Justice Anthony M. Kennedy, whom he replaced. He served on the U.S. Court of Appeals for the District of Columbia Circuit, where Roberts, Thomas and Ginsburg had served.
He is a longtime insider in the Republican legal establishment, yet his clerks went on to work for almost every Supreme Court justice.
The bonhomie on the court is reinforced by tradition. For instance, a new justice is welcomed with a dinner organized by the previously junior member. Thus the stoic Justice Samuel A. Alito Jr. honored Sotomayor’s heritage with a Spanish guitar player. As he promotes his new book, Gorsuch has been telling reporters how he recruited some of the “racing presidents” who perform at Washington Nationals games for baseball-lover Kavanaugh’s dinner.
At speaking events this summer, Ginsburg praised Kavanaugh for hiring only female clerks for his initial term, which for the first time meant that more women than men filled the prestigious jobs. She noted that she had assigned him an important majority opinion in a case where he crossed over to join the liberals.
At the Santa Fe event, Sotomayor discussed the strategic advantage of keeping your ideological adversaries close.
“There is common ground in selected areas,” Sotomayor said. “And it’s important not to forget that because those agreements are important in building bridges that help you in the future, perhaps, in slowing things down.”
In their first year together, Gorsuch and Kavanaugh diverged on issues more than any pair of justices nominated by the same president since President George H.W. Bush’s pair of Thomas and former justice David Souter. Gorsuch has tended to side with Thomas on the right, Kavanaugh closer to Roberts at the court’s center.
For lawyers on the left, that means their best hope — even if slim — is those two. Trump wrote on Twitter that the continuing investigations into Kavanaugh are intended to “scare him into turning Liberal!”
Kavanaugh has kept a low profile on the court. He’s not a recluse — he’s coached his daughters’ basketball teams, just as he did in the past. On Friday, he was at a ceremony for Judge Naomi Rao, who took his spot on the D.C. Circuit.
But he has turned down almost all speaking engagements. There was a noncontroversial talk at a judicial conference in the spring, and his law school teaching gig this summer took place about 4,000 miles from Washington, in England.
As of now, his speaking debut could be in November, when he has pledged to address the national lawyers meeting of the Federalist Society, the conservative legal group that has been instrumental in Trump’s successful nominations to the federal judiciary.
His friends are braced for other events beyond his control. At least two other journalists have been working on books about Kavanaugh.