[bradleyjg]

Kavanaugh clearly isn’t in the same bucket. His votes go either way. I don’t recall seeing a single decision this administration where either Alito or Thomas wrote against a White House position. Not just in case opinions but even in an order. I don’t think we’ve seen a justice act as a stalking horse for the president in this way since Fortas.

[brendoelfrendo]

Kavanaugh votes either way, but I don't think this is out of principle... I just think he's just kind of an idiot and thinks he can write a justification for just about any of his biases without making those biases obvious. It's kind of apparent if you read his opinions; they tend to be very verbose (his dissent here is 63 pages!) without saying a whole lot, and he gets sloppy with citations, selectively citing precedent in some cases while others he simply hand-waves. Take his opinion in Noem v. Vasquez Perdomo (the "Kavanaugh stop" case): there's a reason why no one joined his concurrence.

[legitster]

Kavanaugh strikes me as principled, but in kind of a Type-A, "well, actually" sort of way where he will get pulled into rabbit holes and want to die on random textual hills.

He is all over the map, but not in a way that seems consistent or predictable.

[llbeansandrice]

His dissent in this case was basically "Don't over turn the tariffs because it will be too hard to make everyone whole" Which doesn't strike me as "principled" at all.

Wasn't it JFK who said "We choose to Not do these things bc they're kinda hard actually"? /s

[Rapzid]

That is not the thrust of his argument; he believes they were legal. I don't think we need people spreading this uninformed meme all over HN.

[dboreham]

This is nonsense, and the same nonsense as we heard in the insurrectionist ruling. Allowing fascism "Because it's inconvenient to do otherwise" is bonkers.

[malfist]

Your misbehavior is so egregious we have to reward you for it

[metalliqaz]

His reputation will be forever tarnished by "Kavanaugh stops"

[throw0101a]

That the the four sexual assault allegations (Thomas had "only" one during his nomination):

* https://en.wikipedia.org/wiki/Brett_Kavanaugh#Sexual_assault...

[ruszki]

You need to be cautious with the notion of “his votes go either way”. In Hungary, where I’m from, and a Trump kinda guy rules for 16 years, judges vote either way… but they vote against the government only when it doesn’t really matter for the ruling party. Either the government wants a scapegoat anyway why they cannot do something, or just simply nobody cares or even see the consequences. Like the propaganda newspapers are struck down routinely… but they don’t care because nobody, who they really care about, see the consequences of those. So judges can say happily that they are independent, yet they are not at all.

This fake independence works so well, that most Hungarians lie themselves that judiciary is free.

[suzzer99]

Well under that theory, this would have been a good time for Kavanaugh to go against Trump, since his vote didn't matter.

[zeroonetwothree]

Weren’t Sotomator and Jackson the same with Biden? Kagan is much more principled.

[bradleyjg]

In major case, sure. But every last emergency petition? I don’t think so.

[bonsai_spool]

> Weren’t Sotomator and Jackson the same with Biden? Kagan is much more principled

Very respectfully, there is no comparison between Trump and Biden in this respect. Indeed, the court adopted a new legal concept, the Major Questions Doctrine, to limit Biden continuing the Trump student loan forbearance.

[twoodfin]

The Major Questions Doctrine has been a thing for decades:

https://en.wikipedia.org/wiki/Major_questions_doctrine

[bonsai_spool]

> The Major Questions Doctrine has been a thing for decades:

> https://en.wikipedia.org/wiki/Major_questions_doctrine

I've read the Wikipedia page before and also reviewed it before posting, but thanks for your insightful analysis.

Care to share when it was used in the majority before the current Roberts court?

[twoodfin]

Well, at this point the Roberts court has been a thing for decades so I’m not sure what distinction you’re driving at.

[tyre]

FDA v. Brown & Williamson Tobacco Corp. is an example of the same principle without the name (afaik it wasn’t named that until later.)

Basically the FDA tried to use its powers to regulate drugs and devices to regulate nicotine (drug) via cigarettes (device.) The conservatives on the court said, in effect, “look obviously congress didn’t intend to include cigarettes as a medical device, come on.”

Then Congress passed a specific law allowing the FDA to regulate cigarettes. This is how it should work. If congress means something that’s a stretch, they should say so specifically.

[bonsai_spool]

I think that's a fair example but it had the wrinkle that an FDA commissioner explicitly changed what the Agency's position on tobacco regulation was [1].

I don't have as much time to offer a similar assessment of the first two 'official' Major Questions Doctrine cases in the Biden administration, but neither was nearly as contentious as the FDA reversing its prior position.

For this reason, I see this decision as an argument against an agency changing course from an accepted previous (but not Congressionally defined) perspective. However, Chevron—at least according to interviews with lawmakers responding to the 'MQD' usage—ran counter to what the supposed understanding of how agency work would function. Again, I can find primary sources later.

1. https://www.nytimes.com/2000/03/22/us/high-court-holds-fda-c...