BLOOMINGTON, Minn. — Coming off a Supreme Court term defined by sharply divided decisions on race and LGBTQ+ issues, and continued battles over ethics, Justice Brett M. Kavanaugh said Thursday he and his colleagues treat one another respectfully and represent “government at its finest.”
Speaking at a conference in suburban Minneapolis to several hundred lawyers and judges, Kavanaugh said the justices thoughtfully listen to each other so they can maintain a collegial spirit even when they disagree.
“It’s really I think government at its finest in the sense that everyone there is so well prepared,” Kavanaugh said at the 8th Circuit Judicial Conference. “And we are a hard-working bunch and very well prepared and very on top of the issues and very respectful.”
His comments did not address some of the tough words his colleagues have had for one another in recent months.
Two weeks ago, Justices Clarence Thomas and Ketanji Brown Jackson sniped at each other in dueling opinions over ending the consideration of race in college admissions. Justice Elena Kagan accused the court of overstepping its authority when it rejected President Biden’s student loan debt forgiveness program, and Kagan and Justice Sonia Sotomayor read lengthy dissents from the bench in the court’s closing days to demonstrate how profoundly they disagreed with the majority’s rulings.
Chief Justice John G. Roberts Jr. took issue with some of the critiques in his loan-debt ruling.
“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,” Roberts wrote. “… It is important that the public not be misled … Any such misperception would be harmful to this institution and our country.”
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Kavanaugh, who was nominated to the court by President Donald Trump in 2018, didn’t mention the issue but said he hadn’t written anything harsh about his colleagues during the term. He portrayed the justices as always respectful of one another.
“In my five years I’ve never had a moment where I thought something was said that was disrespectful or someone was getting — overdoing it on something or being overly critical of someone else’s view,” he said. “And for that reason I think it’s really quite a model of decision-making, hard work, preparation, respect for others on difficult issues where people disagree.”
Kavanaugh is part of the court’s 6-3 majority that last month ruled a website designer could refuse to create wedding websites for same-sex couples, work that they said involves constitutionally protected speech. On Thursday, Kavanaugh downplayed the cases that fall along ideological lines and noted the justices sometimes line up in unexpected ways, as in a June voting rights ruling in which he and Roberts joined the court’s three liberals to form the majority.
The court’s ethics have come under scrutiny after recent reports that Justice Samuel A. Alito Jr. and Thomas had not reported luxury travel and accommodations paid for by politically active billionaires. The pair have said they did not believe they needed to publicly disclose the travel.
Kavanaugh noted Roberts has said the court is working on its ethics policies but steered clear of saying more. “I’m not going to add anything to what the chief justice has said on that topic,” he told the crowd.
Kavanaugh said the court has long taken criticism for its decisions, which he said is inevitable because it deals with controversial subjects.
“You shouldn’t be in this line of work if you don’t like criticism, because you’re going to get it, and you’re going to get a lot of it,” he said. “I think the best thing we can do is try to be consistent, try to be clear, try to explain ourselves, try to show — not just tell, but show — that we are actually working as a team of nine on all these difficult cases.”
The justices regularly have lunch with one another and don’t discuss cases when they do so, Kavanaugh said. That helps them strengthen their friendships and builds up goodwill. He differentiated the court from political bodies such as Congress or a state legislature.
“We have lived up, in my estimation, to deciding cases based on law, not based on partisan affiliation or partisanship,” Kavanaugh said. “We don’t caucus in separate rooms. We don’t meet separately. We’re not sitting on different sides at oral argument, so to speak, on the bench. We work as a group of nine.”
Kavanaugh took questions for an hour from Lavenski Smith, the chief judge of the U.S. Court of Appeals for the 8th Circuit, and Sarah Pitlyk, a district judge in Missouri who clerked for Kavanaugh when he was an appeals judge. When they asked him about his hiring practices, he said it’s important to hire a diverse group of law clerks; he did not mention the court’s recent ruling that ended consideration of race in college admissions, in which he voted with the majority.
“One of the things about law clerk hiring that I think is important as well is you make sure the doors are open for all,” Kavanaugh said. “There’s been a dearth of women law clerks … and also minority law clerks. I’ve worked very hard to make sure that the doors are open and that I’m welcoming applicants who also have different ideologies.”
Kavanaugh has four law clerks each year. Of the 20 he has hired since he became a justice, 15 were women, he said.
