WASHINGTON — Would Brett Kavanaugh really side with the court’s liberal justices in a death penalty case?
That was the question buzzing around the press room inside the Supreme Court building last month after oral arguments in a case that placed the court’s newest member under the spotlight.
Kavanaugh had just finished grilling Missouri’s attorney general on the state’s desire to execute an inmate by lethal injection, a procedure that might result in the man choking to death on his blood due to a rare medical condition.
The inmate had been scheduled to be executed in March until the court voted to stay the execution and hear the case. Chief Justice John Roberts along with Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — all Republican appointees — wanted to reject the stay and let the execution go forward.
Now, the justices watched as Kavanaugh questioned whether Missouri’s plan to use lethal injection was inhumane.
“Are you saying, even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?” Kavanaugh asked during oral arguments. With skepticism, he added, “Is there any limit on that?”
Three months into his tenure, Kavanaugh’s allegiance to traditional conservative ideology is an open question. Some observers are downright pessimistic.
In December, Kavanaugh voted against hearing a case that would have helped defund Planned Parenthood. The petition was filed on behalf of Louisiana and Kansas, which sought to block lawsuits brought against states that had removed Planned Parenthood from its list of eligible Medicaid providers. Thomas, Alito and Gorsuch wanted to hear the case.
Two days later, the Washington Examiner published an op-ed under the headline, “Brett Kavanaugh is not the pro-life savior you’re looking for.”
Other actions so far suggest Kavanaugh may be closer to a swing vote than a reliable conservative in the mold of Thomas, Alito and Gorsuch.
In November, Kavanaugh joined the court’s liberal justices when he rejected the Trump administration’s request to block a high-profile climate change lawsuit from moving forward. Thomas and Gorsuch would have granted the request.
In another case, Kavanaugh appeared to side with consumers over corporate interests.
The case involved whether iPhone users could bring an anti-trust lawsuit against Apple over the company’s requirement that third-party developers sell iPhone apps only on Apple’s App Store. During oral arguments, Kavanaugh said that “consumers are harmed” by the policy.
Kavanaugh was addressing Solicitor General Noel Francisco, a Trump appointee, who was arguing on behalf of Apple.
That’s not to say Kavanaugh is in open rebellion against the Trump administration.
In October, the court heard a case involving the government’s ability to detain noncitizens who have committed certain crimes that make them deportable. The Trump administration believes such people can be detained any time after their release from jail — even decades later — and held without bond pending a deportation hearing. Kavanaugh appeared receptive to the Justice Department’s interpretation of federal immigration law.
“Congress did not put in a time limit” on how long the government had to find and detain an immigrant after their release from jail, Kavanaugh told a lawyer for the American Civil Liberties Union, which was representing a class of immigrants.
The court also has yet to rule on any landmark case in which Kavanaugh participated. But his actions so far suggest his ideology is closer to former Justice Anthony Kennedy than, say, Thomas, arguably the court’s most conservative justice, or even Gorsuch, Trump’s first appointee who often sides with Thomas.
But three issues before the court should provide a litmus test.
In February, 2019, the court will hear arguments over whether Commerce Secretary Wilbur Ross can be deposed in a lawsuit challenging the administration’s decision to add a controversial question about U.S. citizenship status to the 2020 census.
The Justice Department also has asked the court to support two other controversial policies of the Trump administration that have stalled in lower courts. One involves Trump’s ban on transgenders serving in the military. The other involves the fate of young undocumented immigrants protected from deportation under the Obama-era Deferred Action for Childhood Arrivals program, or DACA, which Trump revoked in his first year in office.
Both policies have been challenged in court and have yet to go into effect. The Justice Department has petitioned the Supreme Court to pick up the cases ahead of lower court rulings. A decision by the justices may come as soon as January.