Last September, Supreme Court nominee Brett Kavanaugh gave a speech about late Chief Justice William Rehnquist at the conservative American Enterprise Institute, and he had a lot of nice things to say about Rehnquist's opposition to Roe v. Wade, rejection of "a wall of separation between church and state," and push to weaken the rights of suspects against police, the Los Angeles Times reports. The speech is illuminating because Kavanaugh is "not writing as a judge," said Drexel University law professor David S. Cohen. "This is him telling us his own views. And while he doesn't come out and say 'the dissent is right,' it is pretty clear he agrees with Rehnquist" that Roe was a mistake.
Kavanaugh called Rehnquist his "first judicial hero," and explained why he believed the justice's dissent in the 7-2 Roe decision was correct. "It is fair to say that Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion, either in Roe itself or in later cases such as Casey," Kavanaugh said. "But he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition." Kavanaugh said Rehnquist also moved the ball on dismantling the "wall" between church and state — a bad metaphor "based on bad history" — and weakened but did not end the "exclusionary rule" that prohibits police from using illegally obtained evidence.
"All three of areas of law — abortion, religion, and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall," the Times notes. And although Kavanaugh did not mention it, Justice Anthony Kennedy — whom Kavanaugh would replace — cast the deciding vote against Rehnquist's efforts to overturn Roe in Planned Parenthood v. Casey, allow prayer at public school events, and gut the "exclusionary rule." Read more at the Los Angeles Times. Peter Weber