Supreme Court Justice Brett Kavanaugh urged the court to avoid ruling on at least two cases, saying that it should avoid politically sensitive issues, according to a new report.
Kavanaugh sent a series of private memos this spring advocating avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump’s financial records, multiple sources familiar with the workings of the court told CNN.
In the end, the court did hear both cases. One of the cases involved restrictions on abortion clinics in Louisiana, which the court ruled on and struck down in a 5-4 split, with Chief Justice John Roberts siding with the liberals.
The other involved attempts by Democrats in Congress to subpoena President Donald Trump’s tax returns, an effort that the court rejected 7-2.
The revelation follows Kavanaugh’s contentious confirmation hearings in 2018, and suggests that he hopes to avoid overt partisan controversy while sticking by his conservative principles.
According to CNN, Kavanaugh in mid-March began sending memos urging that the abortion case, June Medical Services LLC v. Russo, be remanded to the circuit court.
The case considered whether a Louisiana law, requiring doctors who perform abortions to have admitting privileges at an area hospital, was an unconstitutional restriction on abortion.
The circuit court had upheld the law, meaning that it would stand if the Supreme Court had declined to take up the case as Kavanaugh suggested.
In memos to colleagues, Kavanaugh questioned whether the trial judge had sufficient evidence to declare that the requirement would force abortion clinics to close, according to CNN.
Instead, the Supreme Court did hear the case, and Roberts, a George W. Bush appointee, sided with with the liberals in a 5-4 decision to strike down the Louisiana law as unconstitutional.
Kavanaugh signed on to the dissent of conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, but also issued his own solo dissent arguing a lack of evidence that would support the challengers’ claims.
The second case, known as Trump v Mazars began after the US House had directed subpoenas at Trump’s accountants Mazars USA and two of his banks, Capital One and Deutsche Bank.
According to CNN, Kavanaugh in a private teleconference between the justices raised a theory known as the ‘political question’ doctrine, which holds that certain disputes are more properly worked out between the political branches rather than by judges.
Had the court declined to take up the case, it could have been damaging for Trump, because it would effectively rule that House subpoenas, in this case of banks and accountants, were effectively out of the reach of court oversight.
Sources told CNN that the political impact on Trump did not enter into the justices’ discussion.
In their filings, the parties to the case said the high court had the authority, indeed responsibility, to decide the case.
Kavanaugh’s idea in the end also failed to sway the other justices, and Kavanaugh backed away from it, sources said.
The court did take up the case, and Kavanaugh eventually signed on to Roberts’ opinion for a seven-justice majority, which said Trump could be forced to turn over the financial records if the House could justify its request.