Brett Kavanaugh Keeps Getting Overruled on Supreme Court

Justice Brett Kavanaugh poses for an official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. Kavanaugh publicly dissented from more certiorari denials than the rest of the bench.

Justice Brett Kavanaugh keeps getting overruled by his Supreme Court colleagues this term.

A Newsweek analysis of the order lists released by the court during the 2023-2024 term shows that there were nine Supreme Court petitions that Kavanaugh voted to take up but were ultimately denied certiorari, meaning the Court refused to take the case. That puts him far ahead of his colleagues, who also pushed back on certain petition denials but not nearly as often as Kavanaugh.

As of Wednesday, there have been 15 public dissents on petition denials this term, six of which involved more than one justice.

"The Court denies thousands of certiorari petitions each term," Alex Badas, an assistant professor specializing in judicial politics at the University of Houston, told Newsweek. "This shows that public dissents from certiorari denials are very rare."

Of those public dissents, there were four petitions where Justice Ketanji Brown Jackson wanted to grant certiorari. Justices Neil Gorsuch and Sonia Sotomayor each wanted to hear three of the petitions that were denied. Justice Clarence Thomas dissented on the denial of two such petitions, while Justices Elena Kagan and Samuel Alito each disagreed with one of these denials. Chief Justice John Roberts and Justice Amy Coney Barrett did not publicly disagree on any of the petitions that were denied certiorari.

Supreme Court protocol requires at least four justices to grant certiorari in order to take up a case. This term, there have been two petitions that were just one vote shy of coming before the Court.

On the liberal side of the bench, Jackson, Sotomayor and Kagan dissented from the Court's decision to deny certiorari in Johnson v. Prentice, a case involving a prisoner who was confined for years without the chance to exercise outside his cell.

"For three years, Johnson had no opportunity at all to stretch his limbs or breathe fresh air," Jackson wrote in her dissent.

She argued that the lower court did not consider the impact such restrictions would have on inmate Michael Johnson's health and that "there was more than enough evidence" to show that Jackson's exercise deprivation "was the result of unconstitutional deliberate indifference."

On the conservative side, Kavanaugh, Thomas and Alito objected to the Court's decision to not review Tingley v. Ferguson, a case about whether a state's ban on "conversion therapy" for minors violates the First Amendment rights of counselors who provide such services to try to make a gay or lesbian person straight. Thomas argued that the case "strikes at the heart of the First Amendment," while Alito wrote that it is "beyond dispute" that laws banning such therapies "restrict speech."

Badas said justices typically dissent from certiorari denials for two reasons—either they have strong views on the case and want to remedy a lower court ruling or they are strategically signaling to other litigants that there is at least one justice on the bench who would hear cases involving the issue in the denied case.

For Kavanaugh, Badas suspects his dissents largely fall in the second category.

He said he's not surprised that Kavanaugh has publicly dissented more often than the other justices because Kavanaugh is viewed as the Court's median justice.

In addition, Badas said, "a signal from the median justice may be particularly meaningful to ligations since the median justice is typically most influential in determining the Court's decisions."

Badas said that Kavanaugh is also more likely to dissent as a strategy. That's because conservative justices are more likely to do so than liberal justices since the liberals are in the minority and would not want some of the cases to be granted because they could lose on the merits and "set an unfavorable precedent on an issue [the liberals] care about."

"The liberal Justices are likely dissenting because they have strong preferences about the lower court's ruling and believe the Court should step in to correct it. They are likely highlighting what they perceive as an injustice for which they would like to provide a remedy," Badas said. "This action may be more symbolic."

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