Justice Kavanaugh's Concurrence in Rahimi Contains a Whopper of an Error (or Worse)

In a few hours, SCOTUS will release a fresh tranche of opinions. I'll then read furiously (in both senses of "furiously," in all probability) and, assuming I find something worthwhile to say, return with some thoughts on one or more of those opinions later in the day. Expect the same from me and/or my co-bloggers for the rest of the week and possibly into next week if the Term is extended.

In the meantime, before you log into SCOTUSblog or start refreshing the webpage open to the SCOTUS homepage every ten seconds, I thought I'd offer some morning snark about the dishonesty or incompetence on display in Justice Kavanaugh's concurrence in United States v. Rahimi. If you follow me on Twitter/X, this will be familiar, because I've simply consolidated the thread I posted there yesterday for the benefit of readers who have the good sense not to spend any time on Elmo's dumpster fire of a social media site.

Readers will recall that I wrote a blog post about Rahimi the day it was decided. On Monday, Prof Segall wrote a follow-up blog post, focusing specifically on Justice Kavanaugh's ridiculous invocation of CJ Roberts's much-maligned (and rightly maligned) idea that SCOTUS justices are like umpires. I confess that before writing my post Friday or proofreading Prof Segall's post for Monday, I hadn't read Justice Kavanaugh's concurrence in full. I skimmed it and concluded it was a little law review article defending originalism against straw man arguments.

Reading the whole concurrence, as I had to in order to edit Rahimi down for the annual supplement to my casebook, confirmed my initial impression. For example, Justice Kavanaugh writes: "Some say that courts should determine exceptions to broadly worded individual rights . . . by looking to policy. Uphold a law if it is a good idea; strike it down if it is not." That's ridiculous. Nobody says uphold a law if it is a good idea or strike it down if it's a bad idea. Thus, my impression was correct. Justice Kavanaugh takes aim at a straw man.

Or perhaps that's just rhetorical excess on Justice Kavanaugh's part. What he means (and says expressly in the concurrence) is that the tiers of scrutiny amount to policy evaluations--balancing tests. However, that's wrong, or at best highly misleading, at least with respect to intermediate and strict scrutiny. Policy is relevant to the analysis under heightened scrutiny, but it does not enter on an all-things-considered basis. Meanwhile, under rational basis scrutiny, courts also don't impose their policy views, upholding laws so long as they are minimally rational.

So far, I've shown that Justice Kavanaugh's Rahimi concurrence is tedious and tendentious, not dishonest or incompetent. The dishonesty or incompetence arrives with a statement that appears in the middle of the attack on tiers of scrutiny. Justice Kavanaugh writes: 
The Court "appears to have adopted" heightened-scrutiny tests "by accident" in the 1950s and 1960s in a series of Communist speech cases, "rather than as the result of a considered judgment."
That's not true.

But wait. What about those internal quotation marks? Justice Kavanaugh is quoting Justice Kennedy's concurrence in the judgment in Simon & Schuster v. Members of NYS Crime Victims Board (1991). However, Justice Kennedy did not write that the Court had adopted heightened scrutiny tests by accident. He wrote that it adopted the test IN FIRST AMENDMENT CASES by accident, having quoted a case involving both equal protection and free speech in later cases involving only speech.

Justice Kennedy's point was that the Court should consider whether certain content-based restrictions on speech ought to be subject to per se invalidation rather than the possibility of being upheld under strict scrutiny. It had nothing to do with Justice Kavanaugh's claim that heightened scrutiny tests lead to subjective balancing or his false attribution to Justice Kennedy of the false proposition that the Court adopted heightened scrutiny tests by accident.

That's not a difficult point to discern to anybody other than a chatbot who read Justice Kennedy's separate opinion in Simon & Schuster and cared to quote it accurately. Here's the key languagec: "the Court appears to have adopted this formulation in First Amendment cases by accident rather than as the result of a considered judgment."

Omitting the reference to the First Amendment in that quote--as Justice Kavanaugh's concurrence does--demonstrates either bad faith or incredible sloppiness.

Does it matter? Not in any truly important sense. The entirety of Justice Kavanaugh's concurrence is a self-indulgent exercise the point of which appears to be to get himself quoted in books and articles about constitutional interpretation. Who cares if in the course of this unnecessary concurrence there are some false statements?

Still, if you're going to claim that consulting centuries of history has substantially more determinate normative implications than other interpretive methodologies, you probably should try to avoid misstatements that reveal you can't even accurately report a perfectly clear statement that was written in the U.S. Reports just a few decades ago.