Supreme Court Justice Kavanaugh talks collegiality, skirts controversies at Minnesota event

U.S. Supreme Court Justice Brett Kavanaugh discussed optimism, collegiality and process Thursday at the annual Eighth Circuit Judicial Conference in Bloomington but skirted the ethical and political controversies facing the court and avoided altogether its most criticized rulings.

Kavanaugh said two things stand out in his five years as a justice: First, he said, "[t]he court is an institution of law, not of politics."

Second, the nine justices are highly collegial. That was a point Kavanaugh made repeatedly as he mentioned bringing Justice Elena Kagan to a high school basketball game, his longtime friendship with Justice Amy Coney Barrett and his respect for new Justice Ketanji Brown Jackson's work ethic.

"We work as a group of nine, a team of nine," he said, adding that the justices "don't caucus in separate rooms. We don't meet separately."

Kavanaugh was on a stage at the conference at the Radisson Blu at the Mall of America, questioned by Eighth U.S. Circuit Court of Appeals Judge Lavenski Smith and U.S. District Judge Sarah Pitlyk of the Eastern District of Missouri. Pitlyk is a former law clerk for Kavanaugh.

Most of their questions focused on how the court operates behind closed doors and the process of developing opinions. Pitlyk eventually asked without specifics about recent controversy at the court and how Kavanaugh has handled it.

The court's been in a precarious position for months amid media reports about previously undisclosed lavish gifts of property, trips and favors from donors. A day before Kavanaugh's appearance at the conference, Senate Judiciary Chair Dick Durbin, D-Ill., said it was time for the court to adopt ethics standards on par with those of other branches of government.

Kavanaugh said only that Chief Justice John Roberts has spoken about the ethics issues and the court is "continuing to work on that." He said he was "not going to add anything" to what Roberts has said. The two panelists didn't ask any follow-up questions.

As for criticism of the court's overturning of long-held precedents involving guns, abortion and affirmation action, Kavanaugh gave what sounded like a well-worn response.

"You shouldn't be in this line of work if you don't like criticism because you're going to get a lot of it," he said.

The justice didn't at any point reference the court's most controversial decisions in recent years: the reversal of the nearly 50-year-old Roe v. Wade decision legalizing abortion, the gun ruling that overturned a century of precedent and the recent ruling that outlawed race as a consideration in college admissions.

To the contrary, Kavanaugh said, the court considers the potential impact of its decisions. "We don't like to create chaos," he said.

Asked about decisions he was proud of, he mentioned his concurrence in Ramos v. Louisiana in 2020 when the court said guilty jury verdicts must be unanimous in trials for serious crimes. All states except Oregon and Louisiana have adopted the unanimity requirement.

Kavanaugh said he was proud of his concurrence because it explained how he was going to consider precedent in future cases.

He also mentioned Flowers v. Mississippi, in which Kavanaugh wrote the 7-2 majority opinion in 2019. The court found that Mississippi prosecutors had used race to strike potential jurors in the murder trial of Curtis G. Flowers. Kavanaugh noted that Flowers was not retried after the court ruled.

He said the ruling "reinforced the idea that racism has no place in the criminal justice system."

His favorite concurrence, however, came in the the 2020 antitrust case against the NCAA that cleared the way for student-athletes to be compensated. Kavanaugh, describing himself as a "huge sports enthusiast," said his five-page concurrence emphasized how it was not correct for the NCAA to make millions and pay its athletes nothing.

Kavanaugh said he has read numerous biographies of former Supreme Court justices, mentioning the late Chief Justice Earl Warren as well as late Justices Hugo Black, William Brennan and Felix Frankfurter.

Generally, when facing controversy, Kavanaugh said justices must "try to be consistent, try to be clear and try to explain ourselves."

Then he pivoted to lamenting the abuse heaped on umpires and referees at his 15- and 17-year-old daughters' high school basketball and lacrosse games. "The things that are said are unbelievable," Kavanaugh said, getting big laughs from the crowd.

No one has ever left a game saying, "Well, we lost, but the refs were really good. That's happened zero times," the justice said.

In closing, he said, "Be optimistic. Be positive. We're in a great country with an amazing rule of law and a great constitutional system that has stresses, no doubt, and people disagree strongly, but it served us well."

Later, U.S. District Judge Esther Salas of New Jersey spoke more pointedly about threats to the judiciary. She said judges throughout the country are "vulnerable and exposed to clear and present dangers."

"I truly believe that our country is currently facing unprecedented challenges," Salas said. "Attacks against the judiciary, political leaders questioning the integrity of our justice system and the erosion of the public's confidence in the courts all serve to threaten our democracy and the rule of law."

The judge's son and husband were shot at their home in July 2020 by a self-proclaimed anti-feminist attorney, whom Salas said she also believed to be racist. Her son Daniel did not survive; he would have turned 23 on Thursday

The gunman had begun compiling information on Supreme Court Justice Sonia Sotomayor before he was arrested. Salas urged judges to advocate for their safety.

"We can't count on the public to advocate for us," she said. "We must take the initiative and advocate for ourselves."

Salas received a standing ovation.