The sudden announced retirement from the Supreme Court by Associate Justice Anthony Kennedy late last month created quite a stir among watchers of the Court. It also became the lead story on cable news networks and throughout the blogosphere and twitter world as President Trump went prime time to announce his nominee to replace Kennedy. Brett Kavanaugh was his pick, and, unless something close to a major scandal is uncovered regarding this very vanilla nominee, he will be confirmed by the Senate sometime around the end of September.
The talk on both sides of the political divide predicts that this change in the composition of the Court will be the most significant in maybe a century, or at least in the lifetimes of most Americans. And depending on your perspective, you may have reason to agree with that view. Or not. Let’s dig a little deeper and see what is really happening.
First to be considered is the Court itself. The Supreme Court is the highest court in the Judiciary, the third branch of our federal government. The other two branches, just to provide a little civics refresher, are the Executive (the Presidency) and the Legislative (Congress). Of the three, the courts and the Court in particular, are the most stable and least politically sensitive. Similarly, the nine men and women who sit on the Supreme Court are the least susceptible to political pressure and the day-to-day temperature of the country.
And since no one Justice controls the Court’s decisions on any case, a change in the identity of one Justice will never completely flip the direction of the Court. Moreover, while some cases that are decided by the Court have potentially monumental impact on the country, most are far less dramatic in their effect. Thus, the number of decisions from the Court on a yearly basis that truly change the country can be counted on one hand, or maybe even one finger, in some years.
Now the foregoing is not to suggest that the Court doesn’t have impact. It does. But that impact is more often subtle (as when a case directs a federal agency to reinterpret a statute or when a particular courtroom procedure is found to need tweaking) than dramatic (as was the case when Miranda v. Arizona or Roe v. Wade were decided). Most Supreme Court decisions are fascinating for a small number of practicing attorneys and constitutional law professors, but they only have impact on society at the margins. An analogy would be adjusting the course of an ocean liner. A single Supreme Court decision can only move the ship’s path by a nautical degree at most. More often, to change the ship’s ultimate destination would require an act of Congress.
So if the Court’s decisions usually have limited impact and no one Justice can control it, just how important is the Kennedy resignation? Cable news commentators (on both the right and left) have made it seem exceedingly important because Kennedy has been viewed for most of the 30 years he has been on the Court as the “swing vote.” And, it’s true that in a fair number of the Court’s 5-4 decisions, Kennedy was the vote that was most likely the decisive one (because the other four on either side were more clearly set). But not always. Most notably on the Obamacare decision, it was Chief Justice Roberts who cast the deciding vote (and wrote the opinion) upholding the law’s constitutionality.
In fact, Kennedy’s scorecard over his 30 years was consistently conservative on the political spectrum. Occasionally, and particularly on gay rights, he cast votes that turned the tide to the point of changing the country’s laws on marriage in recognizing and providing constitutional protection for homosexuals. But he also cast what might be considered the deciding votes on any number of conservative decisions (Citizens United being one that liberals immediately hated; his vote on Bush v. Gore being another). Kennedy was a conservative in the traditional mold of conservative Supreme Court justices. In that regard, his voting record aligns very closely with John Roberts’. And it is very probably the Chief Justice who will now take Kennedy’s place as the “swing vote” (albeit, as with Kennedy, the swing will far more often be to the right than to the left).
Judge Kavanaugh is, from all appearances, also a traditional conservative jurist, probably even a tad farther to the right than Kennedy. Will the Court therefore tilt ever so slightly farther to the right with his votes replacing Kennedy’s? Perhaps, on a few issues, it will. The big fear among liberals is that Kavanaugh will join with Roberts, Thomas, Alito, and Gorsuch to overrule Roe v. Wade. I’m not so sure. The force of stare decisis (let the decision stand) is powerful on the Court, especially among traditional conservatives like Roberts and Kennedy (and perhaps Kavanaugh). The more likely result is that abortion rights will be further curtailed by Supreme Court opinions that find state laws that restrict abortion constitutional. Thus, in some states, abortion will be unavailable, if not illegal, as women who would otherwise seek to have an abortion will find it practically impossible to secure one. But that’s the situation now in many locales where state laws have eliminated access to abortions in a variety of circumstances (principally by aggressively limiting facilities where they can be provided).
Voting rights, criminal defendants’ rights, and the rights of workers to organize are also more likely to take a hit with Kavanaugh, and corporations and federal agencies supporting enhanced corporate power will likely get a boost with Kavanaugh. But those same issues, in the vast majority of instances, were trending the same way with Kennedy. Questions arising from the Mueller investigation into Trump’s campaign and Russian interference in the election may also tilt in favor of Trump with Kavanaugh on the Court, but so would they most likely have tilted had Kennedy remained. Let’s remember that when push came to shove in Bush v. Gore, Kennedy signed onto a decision in favor of Bush that adopted a view of equal protection that he and his conservative colleagues on the Court had never adopted before (and have never adopted since).
I don’t mean to sound sanguine about Kennedy’s resignation. I’m disappointed that he resigned when he did, giving Trump a second Court pick in less than two years, when by all rights he shouldn’t have even had the first. (Recall that Obama lost that pick when the Republican-controlled Senate refused to vote on Obama’s nomination of Merrick Garland to replace the deceased Antonin Scalia.) I’m still dumbfounded that the country has moved so far to the right, with Republicans now controlling the Presidency, Congress, and the Court. I’m despondent to see that at the same time that religious affiliation is dwindling nationally, the religious right is ascendant on the Court. I loathe that the President of my country denies science, picks fights with our staunchest allies while cozying up to our most despicable enemies, and that everything I have always been proud of in America is being subverted by a President who doesn’t care about anything I care about.
So, on the list of things that depress me about the state of the nation I love, the resignation of Justice Kennedy is far from the top. He was helpful in a few areas, unhelpful in many, and cast the deciding vote that gave us George W. Bush and the invasion of Iraq. Brett Kavanaugh might well be worse, but not a whole lot worse.