As Justice Brett Kavanaugh described the operations of the current Supreme Court on Thursday, he lauded it as “government at its finest.”
He latched onto the phrase as he appeared in suburban Minneapolis before a group of federal judges from the midwest, the first public appearance of any of the nine justices since their contentious session closed in late June and amid growing controversy over their lack of a formal ethics code.
Kavanaugh struck two other themes from the outset. “The court is an institution of law, not of politics, not of partisanship,” he said. “Second, it’s an institution of great collegiality.”
His upbeat gloss countered the view that emerged just two weeks ago as the annual session concluded and Chief Justice John Roberts wrote of dissenting colleagues, “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”
Kavanaugh was one of the five other conservatives who joined that Roberts’ opinion rejecting the Biden administration’s student debt relief program.
The chief justice may have been especially stung by the opening line of the dissenting opinion, written by liberal Justice Elena Kagan: “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”
The recently completed session reinforced the power of Roberts and the conservative majority that includes Kavanaugh, as they ruled against the debt relief program, overturned university affirmative action and weakened laws intended to protect LGBTQ people from discrimination.
Although Kavanaugh briefly addressed the increased public criticism of the court, none of those rulings were raised as he engaged in a friendly conversation with two fellow jurists: US Appeals Court Judge Lavenski Smith, an appointee of former President George W. Bush who is now chief judge of the 8th Circuit, and US District Court Judge Sarah Elizabeth Pitlyk of the eastern district of Missouri.
Pitlyk was a law clerk to Kavanaugh when he served on the DC Circuit appellate bench. She was appointed to the trial court in 2019 by then-President Donald Trump.
“We would be derelict in our duties,” Pitlyk said near the end of the hour-long conversation, if Kavanaugh were not asked about some of the controversy surrounding the court.
The justices’ off-bench behavior and lack of any process for resolving ethics issues has drawn nearly as much public scrutiny as recent rulings. Among the most sensational reports have been those by ProPublica revealing travel, real estate and other financial benefits conservative megadonor Harlan Crow provided Justice Clarence Thomas.
Roberts addressed some public concern in a late May appearance in Washington, DC, saying, “I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things that we can do to give practical effect to that commitment.”
Regarding court ethical guidelines, Kavanaugh said the justices were continuing to work on the issue and that he did not want to go beyond the chief justice’s remarks.
Of broader criticism of the court’s decisions, Kavanaugh said, “You shouldn’t be in this line of work if you don’t like criticism, because you’re going to get it.” He chalked it up to the nature of the work, resolving the country’s most difficult cases.
“That comes with the territory,” he said of public complaints.
When asked about his newest colleague, Justice Ketanji Brown Jackson, he described her as “extraordinarily well prepared” and “extraordinarily hard working.”
Overall, Kavanaugh accentuated the positive, repeating familiar themes. He described himself as part of a “team of nine,” seeking consensus and trying to show respect for differing views: “It’s really government at its finest, in the sense that everyone there is so well prepared … a hard-working bunch and respectful.”