WASHINGTON – The subject before the Supreme Court last week was an 1855 treaty giving an Indian tribe the right to travel for trade. The question was whether Washington State has a right to tax what tribal members transport.
Near the end of the hour long oral argument, Associate Justice Brett Kavanaugh directed a friendly observation to the lawyer representing a tribal business.
"To state the obvious, the value, current value of the land the tribe gave up is enormous, right?" Kavanaugh said.
"It's a third of the State of Washington, I believe, your honor," Adam Unikowsky responded.
The brief exchange was emblematic of Kavanaugh's style during his first month on the high court, which followed a contentious confirmation battle that included accusations of decades-old sexual assault. So far, at least, he has emphasized "common sense" over conservatism.
That was evident the next day, when he asked a Justice Department lawyer about a class action settlement stemming from Google's disclosure of customers' internet searches.
"That seems a harm," Kavanaugh said. "Just as a common-sense matter."
And earlier this week, he confronted Missouri's state solicitor over the state's plan to execute a medically compromised prisoner by lethal injection, despite potential risks.
"Are you saying even if the method creates gruesome and brutal pain, you can still do it because there's no alternative?" Kavanaugh asked. "Is there any limit on that?"
The newest justice was sworn in again Thursday by Chief Justice John Roberts during a brief, formal investiture ceremony at the court attended by President Donald Trump and Washington's legal cognoscenti. But in a break from tradition taken because of security concerns, he did not descend the courthouse steps afterwards.
'More Roberts than Gorsuch'
Every new Supreme Court justice takes on the lifetime appointment differently. Associate Justice Clarence Thomas, who survived his 1991 confirmation battle after similar accusations of sexual harassment, went virtually silent on the bench. Last year, Associate Justice Neil Gorsuch made clear he would be his own man, dissenting on principle early and often.
Kavanaugh, by contrast, has sought to blend in seamlessly. He's been collegial with his colleagues on the left and right. He's been intently focused during oral arguments, like a student who sits in front and raises his hand often.
Perhaps most significantly – from the limited evidence so far – he has not joined the court's most conservative justices in public dissent on two major issues. Neither has Chief Justice John Roberts.
“The early signs," says Ian Millhiser, senior fellow at the liberal Center for American Progress, "suggest that he is more Roberts than Gorsuch.”
After a confirmation process that lasted from early July to early October, Kavanaugh, 53, had good reason to keep a low profile.
https://www.usatoday.com/story/news...e-court-justice-aims-common-sense/1919464002/
