The Supreme Court plays a vital role in ensuring equal justice and dignity for all Americans. Its decisions touch the lives of millions and are especially important to those who have been and continue to be excluded from full membership in our democracy and economy. In many areas of the law—from workers’ rights to democracy law to mass incarceration—the consequences of the Court’s rulings are particularly profound for communities of color. In those communities, women, immigrants, LGBTQ people, and people with disabilities have still more at stake in the Court's rulings. Because of the Court’s crucial role in shaping both our lives and the systems in which we operate, each vacancy creates an opportunity to move toward, or away from, racial equity.
On July 9, 2018, President Donald Trump nominated Judge Brett M. Kavanaugh of the D.C. Circuit Court of Appeals to the U.S. Supreme Court. After an extensive examination of his record on a series of issues bearing on racial justice, Demos concludes that Judge Kavanaugh’s confirmation would be a major setback for people of color and for racial equity in the United States. We therefore oppose his confirmation to the Supreme Court.
In case after case, Kavanaugh has sided with the more powerful party, often at the expense of people of color. He has written and joined radical opinions addressing issues that were unnecessary to decide the case—and sometimes, that were not even raised by the parties—to promote legal theories that exacerbate rather than ameliorate inequality. For this, he has repeatedly drawn criticism from his colleagues on the D.C. Circuit, including his conservative colleagues. He has also ruled in ways that suggest he would swing the Court to the hard right on key issues like reproductive rights and fair housing.
Kavanaugh has also made it clear that he buys into the problematic trope that the Constitution should be “colorblind”—a shorthand for the view that race-conscious efforts to remedy our long history of slavery, Jim Crow segregation, and state-sanctioned violence against people of color are themselves discriminatory. Kavanaugh has remarked that “we are just one race here. . . . American,” and has railed against benefits to Native peoples as a “naked racial-spoils system.” Comments like these not only erase our history and present-day reality of racism and white supremacy, but also reflect an ideology hostile to vital tools for addressing systemic racism, such as disparate impact claims and affirmative action.
As detailed herein, the confirmation of Judge Kavanaugh to the Supreme Court would likely:
- Make it harder to address both intentional racial discrimination and systemic racism. In an economy in which discriminatory hiring, firing, pay, and harassment block opportunities for people of color—and particularly for those who hold other marginalized identities—we need a Supreme Court Justice who will faithfully apply our civil rights laws. We also need a Justice who understands that bad actors typically hide rather than announce their discriminatory motives and that systems can produce racist outcomes, regardless of the intent of individuals. Kavanaugh’s record on racial discrimination cases raises red flags on both counts. For example, in one case he would have exempted a class of U.S. citizens working for the State Department from all federal anti-discrimination statutes. In another case, he went out of his way to disparage the legal theory of discrimination by disparate impact under the Fair Housing Act.
- Undermine Native American rights and self-government. No vision of racial justice is complete without equity and restorative justice for Native Americans. Kavanaugh’s record in this area has been downright dismissive. He characterized state programs on behalf of indigenous Hawaiians as a “system of racial separatism” driven by “political correctness.” He further denied that the island’s indigenous people could ever be covered by the legal protections that apply to mainland tribes, because that would allow “any racial group with creative reasoning [to] qualify as an Indian tribe.”
- Make it harder to dismantle the New Jim Crow system of mass incarceration. All Americans should feel safe and protected in their communities. But in many ways our criminal legal system has torn families apart and undermined the safety and security of people of color. With the New Jim Crow system seeping into our economy and our democracy and disproportionately depriving people of color of life’s opportunities, we need a Supreme Court Justice who will take structural inequities into account when ruling on criminal cases and who will not reflexively defer to law enforcement. Kavanaugh, however, has labored to absolve officers who committed an unconstitutional search and refused to suppress evidence obtained based on a warrant that contained knowingly false statements.
- Undermine inclusive democracy and perpetuate a system that works only for the wealthy few. Our democracy is not yet working equally for all of us. Policies skew toward wealthy donors who are disproportionately white, while voters of color are deprived of an equal say through restrictions on the fundamental freedom to vote. With major voting rights and money-in-politics cases sure to come before the Supreme Court in the near future, we need a Justice committed to broad and multiracial democratic participation. Kavanaugh’s record on these issues reveals cause for concern—from his downplaying of blatant racism in a voting rights case, to a radical view of the First Amendment that could make it impossible to close the floodgates on big money in our elections.
- Hinder access to justice for low-income people and people of color. The courthouse doors should be open to everyone. But procedural barriers such as restrictions on class actions and arbitration clauses in contracts can leave injured parties without legal recourse. Kavanaugh has advocated for stricter rules about who can bring and sustain a lawsuit, repeatedly siding against everyday Americans and in favor of the party with more power. In one case, he stretched to try to prevent taxpayers from joining together as a class to sue the IRS after the agency wrongfully took money from millions of Americans. Another case reveals that he fails to apprehend the power imbalance that leads many employees to “agree” to unfair terms of employment, which often include restrictions on the ability to sue. Such restrictions fall most heavily on low-income people and people of color.
- Prioritize private profits over the communities of color hurt most by environmental injustice and climate change. Policies skewed in favor of big polluters and corporate interests have long put communities of color at heightened risk—from increased rates of illness, to displacement from climate disasters, to pipelines laid through Native lands. We need a Supreme Court Justice who will uphold environmental protections and who will consider the impact of pollution and climate change on communities of color. Kavanaugh, however, has sided with polluters challenging environmental rules, while giving little to no regard for the communities that suffer the brunt of environmental injustice and climate change.
- Limit health care access and threaten hard-won rights for people of color in the areas of reproductive rights, disability justice, and LGBTQ equality. Racial equity requires that all people have agency to make their own choices about their bodies, and access to non-discriminatory, affordable health care. It is vital that an incoming Supreme Court Justice appreciate the centrality of these interests to basic human liberty and dignity. Kavanaugh, however, has praised Justice Rehnquist’s dissent in Roe v. Wade. He has written that the ACA’s individual mandate is “unprecedented” and that upholding it would be “a jarring prospect.” Kavanaugh appears likely to vote to limit reproductive rights and take away health care—developments that would destabilize the lives of women of color, people of color with disabilities, and trans and queer people of color in particular.
- Undermine justice for immigrants and foreign nationals while deferring to a xenophobic administration. With so much at stake for immigrants and refugees, we need a Supreme Court Justice who values the rights of all people, regardless of immigration status, national origin, or religion. Kavanaugh’s record of siding against immigrant workers and his excessive deference to the executive branch on immigration and foreign policy issues raise red flags that he would not provide a meaningful check on abuses of presidential power. The significance of this orientation cannot be overstated at a time when the Trump administration has barred people from Muslim-majority countries from our shores, separated children from their parents at the border, and sent ICE agents into courthouses and hospital rooms.
Download the full report on Kavanaugh's record