Kavanaugh (and Kennedy) on Church and State

Judge_Brett_KavanaughAt the Law and Liberty Blog today, I have an essay on how a Justice Kavanaugh would likely rule in church-state cases. I argue he is likely to look a lot like Justice Kennedy, the person he would replace:

It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.

You can read the whole essay here.

Leave a Reply

%d bloggers like this: