Justice Kavanaugh Speaks at the Fifth Circuit Judicial Conference

Today Justice Kavanaugh spoke at the Fifth Circuit Judicial Conference in Austin. I was pleased this session was open to the press, and saw several reporters in the room. The Washington Post has an early report.

Chief Judge Richman interviewed Justice Kavanaugh. It was a very engaging exchange. I thought Richman ably showed off the Justice’s personal side. There were many questions about Justice Kavanaugh’s daughters, and we learned that he took them to both a Taylor Swift concert and a Caitlin Clark basketball game.

Generally, these sorts of presentations repeat the same bromides, but Justice Kavanaugh made some points that (I don’t recall that) he had made before.

First, Justice Kavanaugh addressed the declining number of cert grants. This term there will be about 60 merits decisions. Kavanaugh said that his ideal number would be about 75, and he observed that he has been pointing out cases that he would grant. I’ve praised this practice. Most of these cases are not high-profile, but they signal that Kavanaugh is closely monitoring the petitions, and flags to litigants what cases may get a grant in the future. Kavanaugh also said it is somewhat unfair to compare the present-day Court with the Court in the early 1990s when there were ~150 cert grants per year. Kavanaugh reminded us that when Justices Brennan and Marshall were on the Court, there were far more cert grants in death penalty and CrimPro cases.

One point that Kavanaugh did not address, that I have thought a lot about recently, is the “join three.” With that tradition, if three justices were willing to grant cert, a fourth would provide a courtesy fourth vote–the so-called “join three.” Justice O’Connor, as I recall, would frequently provide a “join three.” This was how many death penalty cases were granted: Justices Brennan, Blackmun, and Marshall would vote for cert, and they would get a join-three. On the present Court, we routinely see cases with three dissents from denial, suggesting that there is no courtesy fourth vote. By my count, Justice Barrett had only one dissent from denial–she seems the Justice most hesitant to grant cert. I don’t know if the “join three” is dead and buried, but it may be a vestige of a prior time.

Second, Justice Kavanaugh addressed the emergency docket–giving a shout-out to Professor Vladeck, who was at the conference. Kavanaugh spoke at some length about his opinion in Labrador v. Poe, which I have written about before. In particular, Kavanaugh explained that the predominating factor for these emergency cases is likelihood of success on the merits, rather than the balance of the harms, which generally even out. He mentioned that he had joined Justice Barrett’s opinion in Does v. Mills, which focused on cert-worthiness, but Kavanaugh downplayed that factor, as he did in Labrador. I think Kavanaugh is exactly right. And that message was heard loud and clear by all the Fifth Circuit judges in the room.

Third, Justice Kavanaugh spoke about the process of drafting opinions. Kavanaugh explained that at conference, one of the hardest tasks is figuring out if there are five votes for a majority opinion–though he always favors unanimous opinions. As is well known, at conference each Justice gets to speak at least once before anyone speaks twice, starting with the Chief Justice. But after everyone speaks once, Kavanaugh said, it becomes something of a free-for-all. The Chief will call on people, like in school, Kavanaugh mentioned. Next comes the opinion writing process. Kavanaugh explained that when you see adverbs like “ordinarily” or “generally” in an opinion, those words were necessary to hold a majority opinion. Ditto for a footnote that seems to undermine everything the majority opinion said. Sometimes, Kavanaugh said, providing clearer resolution will have to wait for another case.

Fourth, Justice Kavanaugh addressed oral argument at the Court. For his first two terms, the Court followed the traditional one-hour limit. Kavanaugh said it felt frustrating when he would ask one question in a line of questions, and then get cut off by another Justice. Kavanaugh said he very much likes the new format, including the round-robin seriatim round. It lets him follow through on a line of questions from start to finish. He was also happy that Justice Thomas now has an opportunity to ask questions. Kavanaugh mentioned that not everyone is happy with the new format. He called out Paul Clement as one such skeptic; by contrast, Kavanaugh said, Lisa Blatt likes the format. (Clement & Blatt will give the SCOTUS roundup at the conference on Saturday morning).

Justice Kavanaugh also seemed quite relaxed and open. He was enjoying himself. The first five years of his tenure were remarkably chaotic. From the confirmation hearings to COVID to the assassination attempt, and everything in between. But he looked at ease now, and stayed afterwards to shake hands and take pictures with everyone. It is sometimes said that it takes a new Justice five years to find his or her rhythm. I think Kavanaugh is now hitting his stride. I’ve praised several of his opinions this year. I will, of course, reserve judgment till the end of June, but so far, this has been his most effective term on the Court.

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