By Samantha Schram
On July 9, 2018, President Donald Trump nominated D.C. Circuit Judge Brett Kavanaugh to fill the vacancy left when Justice Anthony Kennedy retired from serving on the Supreme Court of the United States (SCOTUS) in June. The nomination has fueled discussions on the potential influence Kavanaugh might have on the high court. Kennedy is a conservative justice who was nominated by President Ronald Reagan; however, he had some tendency to voice a more moderate opinion, siding with liberal justices in 5-4 decisions that legalized same-sex marriage and preserved Roe v. Wade. If confirmed, Kavanaugh will likely join Justice Clarence Thomas as one of the most conservative sitting justices, surpassing Justices Neil Gorsuch, Samuel Alito, and John Roberts on the liberal-conservative spectrum.
Kavanaugh’s potential confirmation as a Supreme Court Justice could be devastating for the future of affordable and accessible health care, as well as critical patient protections under the Affordable Care Act (ACA). The fate of the ACA could be decided in the next year at the Supreme Court, and Kavanaugh’s addition to the bench is likely a vote against the health care law. The latest challenge to the ACA, Texas v. United States, focuses on the constitutionality of the individual mandate (the federal requirement to either have insurance or face taxes), as well as the ACA as a whole. Plaintiffs claim that now that the tax penalty portion of the ACA has been zeroed out, the individual mandate cannot stand on its own, and the individual mandate is not severable from the rest of the ACA. Oral arguments for the Texas case were held on September 5, 2018. Regardless of what the court rules, the decision will likely be appealed the Fifth Circuit, if not the Supreme Court. Two of Kavanaugh’s previous opinions provide us with some insight as to how he might vote should this case, or any other ACA case, reach the Supreme Court.
In two ACA cases in the D.C. Circuit, Kavanaugh dissented from majority opinions that rejected challenges to the ACA. In both cases, Kavanaugh dissented only as to jurisdiction and not on the merits. However, these are examples of what some scholars refer to as the “artful dodge,” where a judge avoids getting to the heart of the issue through an evasive analysis.
In Seven-Sky v. Holder, the majority held the ACA’s individual mandate was a constitutional exercise of Congress’s power to regulate interstate commerce and dismissed the complaint under the Anti-Injunction Act. Kavanaugh dissented not because he thought the ACA was unconstitutional, but because he thought the court did not have jurisdiction to hear the case to even determine whether the ACA was constitutional. His sixty-five page dissent argues that 1) it would be better for courts to wait to see if Congress either fixed or overhauled the ACA or 2) a president might conclude that the individual mandate is unconstitutional and decline to enforce it. Essentially, he wrote that this decision was not a matter for the courts, but rather for the legislature and executive. He also suggested that the individual mandate may well be constitutional under Congress’s taxing power, so it is uncertain how he would have ruled on the merits. At first blush, Kavanaugh’s Seven Sky dissent does not ring the alarm. However, Kavanaugh avoided the merits of the issue and instead focused on the Anti-Injunction Act, which would leave the ACA largely unprotected on constitutional grounds. Kavanaugh’s suggestion that a president may conclude that the ACA is unconstitutional and decline to enforce is also concerning, since the president is charged with faithfully executing the law.
In the case of Sissel, an Iowa artist challenged the constitutionality of the ACA on the basis that it was a revenue bill originating in the Senate and not the House, as required by the Origination Clause of the Constitution. The Origination Clause requires that bills for “raising Revenue” originate in the House of Representatives, although the Senate may amend Revenue bills. Relying on the Supreme Court’s established purposive approach, the court concluded that the individual mandate of the ACA was not a revenue-raising bill and therefore did not fall under the scope of the Origination Clause. Kavanaugh dissented from the denial of rehearing en banc, writing, “Although the panel opinion reached the correct bottom-line result, the panel opinion’s interpretation of the Origination Clause is incorrect, in my respectful view. The panel opinion alters the longstanding balance of power between the House and Senate, and ultimately affects individual liberty.” Kavanaugh agreed with panel opinion’s conclusion that the ACA complied with the Origination Clause, and he also viewed the ACA as a revenue-raising bill.However, Kavanaugh disagreed with the panel opinion that the ACA was not subject to the Origination Clause, arguing instead that the ACA complied with the Origination Clause because it originated in the House. Kavanaugh’s dissent in Sisselmakes his position on the ACA more difficult to pinpoint, but what it is not is an endorsement of the ACA.
Kavanaugh’s dissenting opinions in Seven-Sky and Sissel demonstrate that he is an unlikely vote to uphold patient protections under the ACA. In days past, Chief Justice John Roberts has been a friend to the ACA, but where he stands currently, particularly in view of a new justice, is unclear. The addition of Kavanaugh to the bench would drastically alter the current composition. If confirmed, Kavanaugh would likely swing the court to the far right on hot-button health care issues, harming access to affordable health care. In all, the impact of the addition of Kavanaugh to the bench remains to be seen.
 See Matthew Yglesias, Brett Kavanaugh and the New Judicial Activism, Vox (July 12, 2018, 9:00 AM), https://www.vox.com/2018/7/12/17557594/brett-kavanaugh-economics-judicial-activism-supreme-court;see also Abbe Gluck, The Fate of the ACA Could Turn on Judge Kavanaugh’s Appointment, Vox(July 23, 2018, 8:50 AM),https://www.vox.com/the-big-idea/2018/7/23/17596430/kavanaugh-kennedy-supreme-court-health-care-aca-confirmation-hearings.
 Andrew Witherspoon & Harry Stevens, Where Brett Kavanaugh Sits on the Ideological Spectrum, Axios(July 10, 2018), https://www.axios.com/brett-kavanaugh-conservative-ideological-political-views-9d009f84-0e0a-4ebf-ac82-084489a108f2.html.
 See Joan Biskupic, Kavanaugh’s Obamacare Rulings Under Microscope As He Meets Manchin, CNN (July 30, 2018, 1:24 PM), https://www.cnn.com/2018/07/30/politics/brett-kavanaugh-obamacare-joe-manchin/index.html.
 See Aaron Nielson, Another View of Judge Kavanaugh and The Artful Dodge, 36 Yale J. on Reg.: Notice & Comment (July 16, 2018), https://yalejreg.com/nc/another-view-of-judge-kavanaugh-and-the-artful-dodge/.
 Sissel, 760 F.3dat 8; see Valerie C. Brannon, Cong. Research Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends (2018) (explaining that a purposive reading focuses on the statute’s purpose and legislative history, whereas a textualist reading focuses on interpreting language of the statute, emphasizing text over any unstated purpose).