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Kavanaugh’s first vote could be in Trump executive power fight


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Justice Brett Kavanaugh’s first vote as a member of the Supreme Court could come as soon as Tuesday or Wednesday on a Trump administration request testing how much power courts should wield over top executive branch officials.

The administration has already made one unsuccessful run at the high court on the issue: It asked Justice Ruth Bader Ginsburg last week to step in to block depositions of Commerce Secretary Wilbur Ross and Justice Department civil rights chief John Gore in lawsuits challenging Ross’ decision to put a question about citizenship on the 2020 U.S. Census.

Ginsburg rebuffed the stay request, but Justice Department attorneys have indicated they plan to return to the Supreme Court with another emergency stay application within days unless they get full relief from lower courts, which seems unlikely.

Justice Department lawyers argue the depositions of Ross and Gore ordered by a federal judge in New York City constitute an unwarranted intrusion into executive authority and could prove distracting to senior officials with important duties.

It’s the kind of argument that could appeal to Kavanaugh, who has advocated broad interpretations of executive power. However, deferring to the Trump administration within days of joining the court could appear to confirm many of Kavanaugh’s critics’ claims that he’s likely to be a rubber stamp for Trump and his agenda.

“It certainly seems likely that, if the Court is divided 4-4 as to whether to grant a stay, Justice Kavanaugh is going to have to participate in resolving the Ross dispute,” University of Texas law professor Stephen Vladeck said.

Kavanaugh’s early predicament could be so awkward that Chief Justice John Roberts might try to head it off, the professor added.......

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