Justice Brett Kavanaugh heard oral arguments for the first time Tuesday in cases about one of the Supreme Court’s least favorite criminal laws, jumping into his role with some straightforward questions and little hint of the bitter confirmation process he just went through.
There were no outbursts from protesters in the gallery, as there had been during his Senate confirmation hearings or Saturday’s historic vote. Kavanaugh showed no expression as he took his seat on the right end of the bench, even as Chief Justice John G. Roberts Jr. welcomed him.
“We wish you a long and happy career in our common calling,” Roberts said.
It wasn’t until Justice Elena Kagan leaned over, as lawyers were being admitted to the Supreme Court Bar, that Kavanaugh became animated, smiling widely and nodding as he exchanged comments with his new colleague.
Kavanaugh waited about 15 minutes before asking his first cautious question. It wasn’t as entertaining as a question from Roberts, who described grasping some cash and asking his clerks to pull it from his hand as a kind of impromptu test of a criminal law definition.
And it wouldn’t elicit laughs as Justice Sonia Sotomayor did when she gave Justice Neil Gorsuch a little pinch on the arm to illustrate whether something like that would fit under the law’s definition.
Instead, Kavanaugh waded in with a question referencing Johnson v. United States, the court’s 2010 decision about the law at hand, the Armed Career Criminal Act.
Challenges to the law, which enhances penalties in illegal firearms cases based on previous convictions, have returned over and over to the Supreme Court as the justices are asked which types of previous convictions should count. In this case, the issue turned on whether a Florida robbery statute would call for an enhanced sentence.
“So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here, and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?” Kavanaugh asked for his first question.
Kavanaugh asked a few questions in each of the two cases argued Tuesday with the same sort of directness. He sometimes drank out of a metallic glass, donned his glasses to read something or ran his left hand through his hair.
But he always seemed to intently watch the other justices as they posed questions, even leaning far forward to see Justice Ruth Bader Ginsburg when she spoke.
On Monday night, Kavanaugh participated in a ceremonial swearing-in ceremony at the White House attended by his fellow justices and said he would always be a team player on the nine-member court. He officially took his oath Saturday evening, hours after the Senate confirmed him on a 50-48 vote.
“I’m honored to serve alongside all of my new colleagues, each of whom I know, and each of whom I greatly admire and deeply respect,” Kavanaugh said at the White House, noting that the “contentious and emotional” confirmation process was over.
“My focus now is to be the best justice I can be. I take this office with gratitude and no bitterness,” he said. “On the Supreme Court, I will seek to be a force for stability and unity. My goal is to be a great justice for all Americans and for all of America.”
Former Justice Anthony M. Kennedy, whose decision to step down this summer created the vacancy filled by Kavanaugh, attended the arguments and sat in the audience. He left after the first of the two cases.
The cases before the court
As they have before, the justices were not shy about asking whether Congress would change the Armed Career Criminal Act, in part to rescue them from their previous decisions.
“I mean you’re not exactly on a winning streak here in ACCA cases,” Justice Samuel A. Alito Jr. told the lawyer arguing for the federal government. “You might have gotten a hint that a majority of the court really hates ACCA and is picking it apart bit by bit by bit.”
Kagan alluded to legislation that aims to clarify the law and asked the attorney arguing for the federal government whether the Justice Department backed the effort. The lawyer was unaware if the department had taken an official position on the bills.
As the arguments ended and the justices stood to retire to their chambers, Kagan shook Kavanaugh’s hand. The court, which started the term last week with eight justices, was back to full strength.