Nearly two decades before Brett Kavanaugh was appointed to the Supreme Court, he helped with George W. Bush’s legal fight before the court in the contested 2000 presidential election, providing insight at the time into his view on questions of whether the Constitution allows state courts to tinker with election rules.
The comments from Kavanaugh, who at the time was working as a private lawyer, to CNN’s Wolf Blitzer in December 2000 are notable given speculation by both Democrats and Republicans that the high court might again have to settle election disputes following next week’s presidential contest.
The justice himself set the battle lines for how the court should consider post-election lawsuits that could determine the outcome of the presidential race in a footnote of a concurring opinion he issued Monday in an election-related case, referencing the highly consequential Bush v. Gore case he worked on 20 years ago.
Speaking to Blitzer outside the Supreme Court in 2000, Kavanaugh dismissed a question about political differences, saying, “I think you’re focusing on the wrong issue there. The real issue is what does Article II of the Constitution mean in the first instance. And it delegates authority directly to the state legislatures. And the textualists on the court, led by Justice (Antonin) Scalia, are paying close attention to that language.”
“And I think what we’re seeing is more of a divide over how to interpret the Constitution than really political differences. I don’t think the justices care that it’s Bush v. Gore or if it were Gore v. Bush,” he said in the interview, which came after the justices had heard oral arguments but before they ruled. “What they care about is how to interpret the Constitution — what are the enduring values that are going to stand a generation from now?”
Speculating about the reaction of Justice Anthony Kennedy and other members, Kavanaugh said he thought they were concerned about “whether the Florida Supreme Court had so departed from the election code previously established by the legislature that it had violated the United States Constitution, which after all delegates the power to the legislatures of the states.”
The Supreme Court would eventually halt the Florida recounts, declaring that county standards for assessing the intentions of voters on disputed ballots varied too widely to be fair. The court said the variations violated the 14th Amendment’s equal protection guarantee.
The comments from the future justice and his concurring opinion on Monday will no doubt loom in the background with just a week to go until Election Day, and as the justices consider several petitions before them concerning election rules.
“Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote Monday.
He went on to mention the 2000 case, picking up on the reasoning of then-Chief Justice William Rehnquist in a concurrence that only garnered the votes of two other justices — Scalia and Justice Clarence Thomas.
“The text of Article II means that the ‘clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature,” Kavanaugh wrote.