Federal Courts and Nominations

Kavanaugh on Supreme Court would give Texas lawmakers ‘a green light’ for conservative causes

President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court is a signal to conservative lawmakers in Texas to test the limits on abortion restrictions, redistricting, voting rights issues, affirmative action and a host of other issues, legal experts say.

“This is a green light for them to make a lot of changes in a lot of areas of public policy that they’ve wanted to address,” said Al Kauffman, a constitutional law professor at St. Mary’s University law school in San Antonio.

If confirmed by Congress, Kavanaugh is expected to shift ideology on the nation’s highest court. He would replace Justice Anthony Kennedy, also a Republican appointee, who often cast the tie-breaking vote on hot-button social issues, including the ruling that allowed the University of Texas to continue to use affirmative action in admissions.

Kavanaugh, who has issued around 300 opinions as a federal appeals court judge, is seen as more conservative.

Texas is counting on that. The Republican Legislature often passes laws it knows will immediately draw legal challenges that could ultimately be decided by the high court.

Texas has a history of pushing cases to the Supreme Court. In 2016, the court ruled against the state on restrictions that closed nearly half of the 40 abortion clinics in the state. That same year, the court upheld the affirmative action programs at UT.

Texas Attorney General Ken Paxton is also frequently leading groups of like-minded states in lawsuits court challenges of the Affordable Care Act, the Clean Air Act and federal immigration policy, particularly related to the Deferred Action on Childhood Arrivals program, or DACA.

On all those fronts, Texas officials could again be pushing cases to the court in hopes the new makeup will improve their chances of victory.

Paxton, whose office declined to make him available for comment, hasn’t indicated how a new Supreme Court Justice would change his tactics.

“He is an extraordinarily well-qualified Supreme Court nominee,” Paxton said in a statement about Kavanaugh’s selection. “Judge Kavanaugh has distinguished himself as one of the nation’s leading constitutional scholars.”

Suing the federal government has been a major component of the Texas Attorney General’s job even when the bench had fewer conservatives.

Former Texas Attorney General Greg Abbott (now governor) once summed up the AG’s job like this: “I go into the office, I sue the federal government, and I go home.”

Texas legislators see hope in Kavanaugh, specifically because his past rulings show he will stand up to federal agency overreach, said Sen. Paul Bettencourt, R-Houston, a key leader in the Texas Senate.

“That’s gold for Texas,” Bettencourt said.

Not every Supreme Court case involving Kennedy was a narrow 5-4 decision. The U.S. Supreme Court accepts about 60 to 70 cases a year and about half are decided 9-0.

Liberal litigants may stop short of high court

With a more conservative Supreme Court, liberal groups that often clash with Texas in court say they will think twice about asking the new Supreme Court to weigh in, knowing the rulings of the high court become the law for the nation. Lower court rulings have less reach.

Case in point is the lawsuit over the common second-term abortion procedure known as dilatation and evacuation. Pushed by anti-abortion groups, the Legislature wrote a law in 2017 banning the procedure. Abortion providers immediately sued, saying it is the safest and most common procedure for ending pregnancy that far along.

When a lower court ruled the Texas law was unconstitutional, the state appealed to the 5th U.S. Circuit Court of Appeals in New Orleans. Now awaiting a ruling, the losing party could appeal to the Supreme Court.

But if the court rules in favor of the state, abortion advocates said they will have to have to think carefully before appealing to a Supreme Court that includes Kavanaugh.

“We certainly don’t want to put women in the rest of the country in the situation women in Texas are in because it’s devastating,” said Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, the advocacy branch of the nationally known family of abortion clinics.

A dissenting voice in immigrant abortion case

Abortion opponents lauded the selection of Kavanaugh, pointing to his dissenting opinion last year involving an immigrant in Texas who sought an abortion.

A Salvadoran teenager who crossed the border illegally said she did not want to tell her relatives she wanted to get an abortion. But Texas law requires minors to have either parental consent or get a court order to pursue the procedure. The court appointed the girl a guardian and an attorney, and she made an appointment to get the abortion, but the government refused to release her or transport her to the appointment, claiming it would be tantamount to “facilitating abortion.”

The case was appealed to a federal panel that included Kavanaugh. By then, the teen was 15 weeks pregnant and in her second trimester. Kavanaugh joined the majority in blocking the abortion for up to 10 more days to give the government more time to find the 17-year-old an adult “sponsor,” usually a relative or friend who is approved to care for such minors while their deportation cases are decided. The full appeals court overturned that ruling.

In his dissenting opinion, Kavanaugh lambasted the majority for a “radical extension of the Supreme Court’s abortion jurisprudence.” The high court’s “many precedents” hold that the government has “permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh wrote. “The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.”

David Gans, civil rights director at the Constitutional Accountability Center, a liberal-leaning think tank in Washington, D.C., said Kavanaugh’s dissent took an “extremely narrow view” of the constitutional protections afforded to women seeking abortions.

“It suggests that he will, if confirmed, read the ‘undue burden’ standard to offer very little protection and permit states to impose more and more burdens and regulatory decisions to prevent women from getting abortions,” Gans said.

Environmentalists will miss Kennedy, too

Environment groups fear the idea of Kavanaugh replacing Justice Kennedy, who also had a history of siding with more liberal justices on key environmental issues such as those related to the Clean Water Act.

When it comes to capital punishment, a new justice might have relatively little impact in Texas, at least in the immediate future. Currently there are no Texas death penalty arguments on the court’s calendar for next term, though there are challenges from other states linked to lethal injection practices and the mental competency of those who are to be executed – either of which could affect some cases in Texas.

Another way a new justice could impact Texas death penalty cases is in last-minute stays. Each justice is assigned to a different circuit for emergency petitions, including eleventh-hour stays of execution.

Currently, Justice Samuel Alito handles Texas cases. But with a new justice on the bench, it’s possible the court could rearrange circuit assignments, and any change there could affect a slew of death cases moving ahead, said Robert Dunham, executive director of the Death Penalty Information Center.