It’s relatively rare to peer directly into the constitutional thinking of sitting US Supreme Court justices. Although such glimpses surface most visibly in the opinions justices join or author, they also are revealed during the give-and-take of oral arguments, at commencement speeches, in books, and during public appearances.

A slight “suggestive” window cracked opened into Justice Brett Kavanaugh’s mindset during a headline-garnering talk at a May 10 judicial conference in Austin, Texas. Addressing judges, attorneys, and others working within the conservative-leaning US Court of Appeals for the Fifth Circuit, Kavanaugh revealed dueling concerns that may influence his decision in the First Amendment jawboning––verbal arm-twisting––case of Murthy v. Missouri. As I’ve explained, it centers on whether “a bevy of federal officials, departments, and agencies unlawfully coerce[d] Facebook, Twitter, and YouTube in 2021 and 2022 to remove conservative-leaning content critical of COVID-19 vaccines, lockdowns, mask mandates, and President Joe Biden.” 

Murthy pits a president’s power to try to implement his desired policy objectives without having to clear the arduous, time-consuming hurdles of enacting federal legislation against the constitutional free-speech rights of everyday citizens not only to express viewpoints contrary to the president’s objectives, but also to receive dissenting opinions from fellow citizens on some of the most contentious political issues of our polarized times. The attractions of jawboning for any president, regardless of political stripe, are obvious. As University of Florida Law Professor Derek Bambauer recently rhetorically queried: “Jawboning presents a near-irresistible temptation for government entities at times: Why wait for official action, and attendant criticism, when informal pressures get the same results with less fuss?”

The Court heard oral arguments in Murthy on March 18 and, as I wrote earlier, they didn’t seem to go well for the plaintiffs––Missouri, Louisiana, and five individuals, including two authors of the sometimes-censored Great Barrington Declaration. Several justices (Kavanaugh included) seemed skeptical about the plaintiffs’ claim that Biden administration officials crossed the blurry line separating lawful persuasion and argumentation from impermissible coercion and significant encouragement. 

What did Kavanaugh tell his Austin audience that might shed some light on how he rules in Murthy? According to the Wall Street Journal, he stated that “Presidents are going to want, if they can’t get the legislation through Congress, to push the boundaries—again, totally bipartisan, totally understandable. But the third branch, the judiciary, is there to help police those boundaries, police the separation of powers.” Jawboning, of course, pushes First Amendment boundaries and doesn’t necessitate legislation.

Yet, Kavanaugh added that his five-and-a-half-year stint as staff secretary for President George W. Bush taught him just how difficult a president’s job is. Kavanaugh asserted that while “[b]eing a Supreme Court justice is hard, some days,” it isn’t “anything close to being president, in terms of the stress, the difficulty, the pressure day to day, no matter who’s president.” 

Kavanaugh thus brings to Murthy two different but incredibly important perspectives––that of a former White House official who understands well the realities and difficulties that travel with being president and that of a member of the nation’s highest court that must keep in check abuses of authority by the executive branch. This dual perspective suggests Kavanaugh may adopt a more nuanced––not an all-or-nothing––tack in Murthy about how far government officials can go when verbally leaning on speech intermediaries such as social media companies to remove or suppress third-party content. Such a middle-ground opinion would also reflect Kavanaugh’s growing status (along with that of Chief Justice John Roberts) as a swing justice on today’s Court.

Kavanaugh’s White House experience no doubt led him to remark during oral arguments in Murthy that he “had assumed . . . experienced government press people throughout the federal government . . . regularly call up the media and . . . berate them.” He added that “it’s probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say . . . ‘if you run that, it’s going to harm the war effort and put Americans at . . . risk.’” (internal quotation marks added).

The capacity to thoughtfully understand and respect different perspectives on critical constitutional questions like those raised in Murthy is vital. Ideally, it should lead to a decision that embodies a real-world assessment and embraces a fact-specific rule––one recognizing that the executive branch must have some legal leeway to convince private companies (in Murthy, the owners and operators of social media platforms) that they should accept the president’s positions while simultaneously acknowledging that jawboning is ripe for abuse and can unconstitutionally quash dissenting voices, thereby skewing the marketplace of ideas in the government’s desired direction. What Kavanaugh ultimately concludes soon will be revealed when the Court rules in Murthy, likely late next month.

The post Justice Kavanaugh Unfiltered: What His Recent Remarks May Portend for Murthy v. Missouri appeared first on American Enterprise Institute – AEI.