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2018 Section 2: Trump and the Court Institute of Bill of Rights Law at the William & Mary Law School

Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 2: Trump and the Court" (2018). Supreme Court Preview. 282. https://scholarship.law.wm.edu/preview/282

Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview II. Trump and the Court

IN THIS SECTION: “BRETT KAVANAUGH, A WASHINGTON VETERAN, IS TRUMP’S SECOND PICK FOR THE SUPREME COURT” David Savage...... 45

“TRUMP PICKS BRETT KAVANAUGH FOR SUPREME COURT” Eric Bradner, Joan Biskupic, and Jeremy Diamond...... 50

“WHITE HOUSE COUNTS ON KAVANAUGH IN BATTLE AGAINST ‘ADMINISTRATIVE STATE’” Robert Barnes and Steven Mufson ...... 54

“SEEKING A SUCCESSOR TO JUSTICE KENNEDY’S COMPLEX LEGACY” Douglas W. Kmiec ...... 59

“IN INFLUENCE IF NOT IN TITLE, THIS HAS BEEN THE KENNEDY COURT” Adam Liptak ...... 62

“A LIBERAL’S CASE FOR BRETT KAVANAUGH” Akhil Reed Amar ...... 65

“TRUMP PICKED KAVANAUGH. HOW WILL HE CHANGE THE SUPREME COURT?” Politico Magazine ...... 67

“BRETT KAVANAUGH IS DEVOTED TO THE PRESIDENCY” Garrett Epps...... 77

“CHIEF JUSTICE ROBERTS MOVES TO MAN IN THE MIDDLE ON THE SUPREME COURT” Brett Kendall ...... 80

“CHIEF JUSTICE JOHN ROBERTS IS NOW THE SUPREME COURT’S SWING VOTE” Christopher Ingraham ...... 83

“CHIEF JUSTICE ROBERTS WILL BE THE ‘SWING’ VOTE” Jonathan Nash ...... 85

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“WITH KENNEDY GONE, ROBERTS WILL BE THE SUPREME COURT’S SWING VOTE” Julie Hirschfeld Davis ...... 87

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“Brett Kavanaugh, a Washington veteran, is Trump’s second pick for the Supreme Court”

LA Times

David Savage

July 9, 2018

In choosing Judge Brett M. Kavanaugh for Justice Anthony M. Kennedy, for whom he the Supreme Court, President Trump went worked as a law clerk from 1993 to 1994. with a well-credentialed Washington insider who compiled a long record as a reliable Critics said beneath that rhetoric is a highly conservative and won the respect of White conservative, partisan lawyer. Kavanaugh's House lawyers and the outside groups that extensive record in Washington will provide advise them. the opposition with ammunition. In the late 1990s, Kavanaugh played a lead role in the They are confident that, if confirmed by the aggressive investigation of President Clinton Senate, he will move the high court to the led by independent counsel Kenneth W. right on abortion, gun rights, affirmative Starr. He was an author of the Starr Report, action, religious liberty and environmental which urged the House to impeach the protection, among other issues. president for lying about a sexual affair with White House intern Monica Lewinsky. During the White House ceremony in which Trump named him, Kavanaugh declared that Senate Democrats are sure to press his “judicial philosophy is straightforward. A Kavanaugh to explain his views on judge must be independent and must interpret investigating and impeaching a president the law, not make the law. A judge must based on allegations of lies and a cover-up, interpret statutes as written. And a judge must something that could prove uncomfortable interpret the Constitution as written, for Trump given the investigation underway informed by history and tradition and by special counsel Robert S. Mueller III. precedent.” A graduate of Yale College and Yale Law But his court record and status as a Beltway School, Kavanaugh — the only one of insider could also pose problems as the 53- Trump’s four finalists with an Ivy League year-old judge on the U.S. Court of Appeals degree — will be in good company on a court for the District of Columbia Circuit seeks to where all the current justices have gone to move a few blocks up Capitol Hill to replace law school at Harvard or Yale. Last year, Trump said he was drawn to his first 45 appointee, Justice Neil M. Gorsuch, because Trump and the Republican-controlled Senate he had degrees from Columbia, Harvard and are wasting no time, just in case Democrats Oxford. take over the chamber in the midterm election. They are also hoping that Some conservative activists in recent days completing Trump’s second high court had begun a campaign against Kavanaugh, appointment will energize GOP voters in complaining about his past ties to the George November. W. Bush administration and previous rulings that were not hard-line enough for their taste. Trump had been teasing about his choice for Many preferred one of the candidates who days, urging supporters to tune in Monday had worked outside of Washington, despite night and building suspense by suggesting he their less sterling resumes. The other would wait until the final hours to decide. finalists, also federal appeals court judges, The big reveal, as they say in the reality- were Amy Coney Barrett of Indiana, Thomas television industry, came during a prime-time Hardiman of Pennsylvania and Raymond announcement in the East Room of the White Kethledge of Michigan. House, surrounded by high-profile Republicans and Kavanaugh’s wife and two But lawyers who have worked with daughters. Kavanaugh are confident he will be boldly conservative. “This incredibly qualified nominee deserves a swift confirmation and robust bipartisan “Brett Kavanaugh is courageous, tough and support,” Trump told the gathering. defiant. He will never, ever go wobbly,” said Justin Walker, a University of Louisville law Kavanaugh used much of his remarks to professor who worked as a law clerk for both emphasize the support he has received Kavanaugh and Justice Kennedy. “I predict throughout his life from women, including that he would be a rock- solid conservative in his mother, wife, daughters, mostly female the Alito-Thomas mold,” he said, referring to law clerks and even Elena Kagan, a President Justices Samuel A. Alito Jr. and Clarence Obama appointee to the Supreme Court, who Thomas. as Harvard Law School dean once hired Kavanaugh. The announcement comes just 12 days after Kennedy, 81 — the court’s influential swing The nod to women will probably provide a vote for decades — said he would step down, talking point in his favor for female opening the door for a Republican president Republican senators who aren't anxious to to appoint a more reliable conservative who break with Trump, even though they have could shift the court to the right for a concerns about how the nominee might rule generation or more and potentially overturn on abortion and health issues. or limit the landmark abortion ruling Roe vs. Wade. Several of the senators thought to hold key votes on the confirmation, including Sens.

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Susan Collins (R-Maine), Lisa Murkowski Sen. Dianne Feinstein (D-Calif.) called him a (R-Alaska) and Heidi Heitkamp (D- N.D.), “partisan political operative,” and Senate declined White House invitations to attend Democratic leader Charles E. Schumer of the announcement. New York promised to “oppose Judge Kavanaugh’s nomination with everything I In a statement Monday night, Collins praised have.” Kavanaugh’s “impressive credentials and extensive experience.” Another possible Senate Judiciary Committee Chairman swing vote, Sen. Joe Manchin III (D- W.Va.), Charles E. Grassley (R-Iowa) called said he remained concern about how Kavanaugh “one of the most qualified Kavanaugh would vote on preserving key Supreme Court nominees to come before the provisions of the Affordable Care Act. Senate.” Former President George W. Bush also offered his endorsement. “I’m very interested in his position on protecting West Virginians with preexisting The Supreme Court selection is yet another conditions,” Manchin said. staid Washington ritual transformed by Trump, who learned the narrative power of With only a 51-seat Senate majority, reality TV while hosting NBC’s “The Republicans cannot afford to lose a single Apprentice.” Trump staged a similar event vote, assuming all Democrats vote no and the early last year when he nominated Gorsuch to ailing Sen. John McCain (R-Ariz.) remains in replace deceased Justice Antonin Scalia, his home state battling cancer. whose seat opened during Obama’s final year in office but was kept vacant by a GOP- Both sides moved quickly to begin the battle controlled Senate that refused to consider over Kavanaugh's confirmation. Within Obama’s nominee. minutes of the announcement, the Democratic National Committee released a Trump has delighted in choosing judges, an video declaring Kavanaugh an extremist who issue that unites conservative groups, would have the power to overturn Roe vs. including some that have been skeptical of Wade and gut the Affordable Care Act. either his personal behavior or his policy positions. On the Republican side, conservative groups had already reserved time for television ads Kavanaugh’s long record in Washington will in states whose Democratic senators might be give Senate Democrats plenty of material to vulnerable. press at his confirmation hearing.

“Judge Kavanaugh has consistently proven to During Starr’s investigation, Kavanaugh took be a conservative ideologue instead of a on the task of reexamining the suicide of mainstream jurist,” said Sen. Kamala Harris Vince Foster, a deputy White House counsel (D-Calif.). and close friend of Bill and Hillary Clinton

47 who had come under fierce attack in the Kavanaugh said that filing the form would conservative media. make them complicit, and therefore would violate their rights to religious freedom. Years later Kavanaugh changed his mind about his role in the Starr investigation and Kavanaugh appears to support broader gun said presidential investigations were harmful rights under the 2nd Amendment. In 2011, he to the country. filed a 52-page dissent when the appeals court, by a 2-1 vote, upheld a District of In December 2000, with the presidential race Columbia ordinance that prohibited between Al Gore and George W. Bush semiautomatic rifles and magazines holding undecided, Kavanaugh joined the Republican more than 10 rounds. The judges in the legal team that won the fight to stop the ballot majority, both Republican appointees, noted recount in Florida. that several large states, including California and New York, enforced similar laws. Kavanaugh took a post in the White House counsel’s office under President Bush and But Kavanaugh said the ban on later served as his staff secretary. Bush semiautomatic rifles was unconstitutional nominated him to the U.S. Court of Appeals because the weapons are in common use in for the District of Columbia Circuit in 2003, this country. “As one who was born here, but because of strong opposition from grew up in this community in the late 1960s, Democrats, he was not confirmed until 2006. 1970s and 1980s, and has lived and worked in this area almost all of his life, I am acutely Since then, he has written about 300 opinions aware of the gun, drug and gang violence that and compiled a solidly conservative record has plagued all of us.... But our task is to on a court that has a steady diet of dense apply the Constitution and the regulatory disputes. Kavanaugh was skeptical of several of the Obama precedents of the Supreme Court, regardless administration’s environmental regulations, of whether the result is one we agree with as including efforts to limit greenhouse gases a matter of first principles or policy,” he and hazardous air pollutants. wrote.

And he dissented in 2015 when the appeals Since the Supreme Court in 2008 established court upheld a revised regulation under the a 2nd Amendment right for individuals to Affordable Care Act involving have a gun at home, the justices have refused contraceptives. Although religious to hear a 2nd Amendment challenge to state employers did not have to provide or pay for laws or local ordinances that restrict the sale the disputed contraceptives, they were of semiautomatic weapons. required to file a form notifying the government that they were opting out. Kavanaugh’s long record as a judge has left Dissenting in Priests for Life vs. U.S. him open to attack from the right as well as Department of Health and Human Services, the left.

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In 2011, when Obama’s healthcare law was government 10 more days to find a sponsor under assault, Kavanaugh dissented when a for the young woman. D.C. Circuit Court panel upheld the law, but only on procedural grounds. He cited the Tax But the full appeals court took up the case and Injunction Act, which said judges should not reinstated the ruling of the district judge. In decide suits challenging a tax provision until dissent, Kavanaugh faulted the majority for the plaintiff has first paid the tax. His view, if creating “a new right for unlawful immigrant upheld, would have delayed a constitutional minors in U.S. government detention to challenge to the law, and some on the right obtain immediate abortion on demand.” faulted him for not simply declaring the law unconstitutional. His stand nonetheless has drawn some criticism in conservative circles because he Late last year, Kavanaugh was in the middle did not join a separate dissent by Judge Karen of a fast-moving dispute over whether a LeCraft Henderson. She contended that pregnant 17-year-old who was held by immigrants in the country illegally had no immigration authorities could leave to see a constitutional rights. doctor and obtain an abortion. The Trump administration refused her request and said it Kavanaugh was one of the last additions to a did not have to “facilitate” an abortion. After list of potential GOP nominees, updated last the ACLU sued on her behalf, a federal year to 25 names from the initial 11, that was district judge in Washington ruled she had a assembled and vetted by the Federalist right to leave and obtain the abortion. Society and the Heritage Foundation, outside Kavanaugh disagreed and gave the conservative groups with tremendous influence in the Trump White House.

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“Trump Picks Brett Kavanaugh for Supreme Court”

CNN

Eric Bradner, Joan Biskupic, and Jeremy Diamond

July 9, 2018

President Donald Trump has nominated Brett Trump called Kavanaugh "one of the finest Kavanaugh to join the US Supreme Court, and sharpest legal minds of our time," saying setting the stage for a dramatic confirmation he is "considered a judge's judge and a true battle over a stalwart conservative who could thought leader among his peers." shape the direction of the court for decades to come. "Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a If confirmed, Kavanaugh would replace a proven commitment to equal justice under frequent swing vote on the bench, retiring the law," Trump said. Justice Anthony Kennedy, who often sided with his liberal colleagues on issues such as Kavanaugh will begin meeting with senators abortion, affirmative action and LGBT rights. on Tuesday.

Kavanaugh, 53, is a judge on the US Court of He has never expressed outright opposition to Appeals for the DC Circuit and Yale Law the 1973 Roe v. Wade decision, which made School graduate who previously served in abortion legal nationwide, and similarly has both Bush administrations. He also worked no record on gay rights and same-sex on independent counsel Ken Starr's marriage, but he will face tough questions investigation of President Bill Clinton. from Democrats on both issues. Kavanaugh has also suggested that presidents be shielded "What matters is not a judge's political views, from civil and criminal litigation until they but whether they can set aside those views to leave office, an issue that could be front and do what the law and the Constitution require. center as Trump faces the investigations by I am pleased to say I have found without special counsel Robert Mueller and potential doubt such a person," Trump said as he civil challenges. announced Kavanaugh's nomination at the White House Monday evening.

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If confirmed by the Senate, I will keep an Republicans hold 51 seats in the Senate, open mind in every case," Kavanaugh said though Arizona Sen. John McCain has been Monday at the White House. absent as he battles brain cancer. Trump's nominee can win confirmation with only GOP hoping for quick confirmation Republican votes, but attention will quickly shift to two moderate GOP senators, Maine's The nomination is Trump's second to the Susan Collins and Alaska's Lisa Murkowski, nation's highest court, a rare presidential who are supportive of abortion rights. privilege that could seal a key part of Trump's legacy less than two years into his first term. Trump also hopes to pressure several Democrats into voting to confirm his Trump last week spoke with seven nominee. Three Democrats up for re-election candidates, all drawn from a shortlist in states Trump won by double digits in 2016 compiled by the conservative Federalist -- Indiana Sen. Joe Donnelly, West Virginia Society, about the Supreme Court. The Sen. Joe Manchin and North Dakota Sen. nomination also comes just before the Heidi Heitkamp -- voted "yes" on the President leaves for a critical trip to Britain, a confirmation of his first Supreme Court NATO summit in Belgium and a meeting nominee, Neil Gorsuch. with Russian President Vladimir Putin. Senate Majority Leader Mitch McConnell, The White House is hoping the Senate moves R-Kentucky, who once held a court seat open quickly to confirm Kavanaugh before the for nearly a year before the 2016 election to midterm elections in November threaten to keep President Barack Obama from filling it, unfurl the narrow Republican majority in the lambasted Democrats for announcing their chamber and nix the precious leverage the opposition before Trump had decided on a GOP holds over some red state Democrats up nominee. for reelection in 2018. "Justice Kennedy's resignation letter barely Trump's legislative a airs director Marc Short arrived in the President's hands before several told reporters Monday night that the White Democratic colleagues began declaring their House expects a confirmation vote before blanket opposition to anyone at all -- anyone October 1, when the new Supreme Court -- that the President might name," McConnell term begins. said Monday.

Democrats are warning that Trump's The sharply negative Democratic responses nominee would jeopardize some of to Kavanaugh's nomination indicated a progressives' most important policy priorities pitched battle over his confirmation is in recent decades -- including rulings that coming this fall. legalized abortion and same-sex marriage, as well as former President Barack Obama's Senate Minority Leader Chuck Schumer said health care law. in a statement that by selecting Kavanaugh,

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Trump "has put reproductive rights and Donnelly said he would "carefully review freedoms and health care protections for and consider the record and qualifications." millions of Americans on the judicial Tester said he looks forward to meeting chopping block." Kavanaugh and called on senators in both parties to "put politics aside and do what's "This nomination could alter the balance of best for this nation." the court in favor of powerful special interests and against working families for a Moderate Republicans also held their fire. generation, and would take away labor, civil, Collins said she is waiting for Kavanaugh's and human rights from millions of confirmation hearing before the Senate Americans. We cannot let that happen," the Judiciary Committee, and to meet the New York Democrat said. nominee in her office.

Red-state Democrats keep their distance "I will conduct a careful, thorough vetting of the President's nominee to the Supreme Trump had invited four Democrats from Court, as I have done with the five previous deep-red states -- likely the four best chances Supreme Court Justices whom I have the White House has of attracting Democratic considered," she said in a statement. votes for Kavanaugh -- to Monday night's announcement. Veteran of DC

But Alabama's Sen. Doug Jones, Indiana's Kavanaugh is a classic Washington insider Sen. Joe Donnelly, North Dakota's Sen. Heidi with a deep conservative legal record. Heitkamp and West Virginia's Sen. Joe Manchin all declined the invitations. He worked in the George H.W. Bush and George W. Bush administrations, serving the Donnelly, Heitkamp and Manchin are up for younger president when he was torn among re-election this fall, three of the five finalists for a Supreme Court seat in 2005. Democrats, along with Missouri's Sen. Claire McCaskill and Montana's Sen. Jon Tester, up He also spent 12 years on the US Court of for re-election in states Trump won by double Appeals for the District of Columbia Circuit, digits in 2016. where his record would place him to Kennedy's right and more in ideological sync Most of those Democrats issued tepid with Justice Samuel Alito, who has been a statements saying they will review reliable conservative vote on the court. Kavanaugh's record, without commenting on whether they will vote for or against his Last October, Kavanaugh dissented when the confirmation -- a position that breaks with full DC Circuit prevented the Trump their party's progressive flank, which is administration from blocking a pregnant demanding an all-out battle, but also doesn't teenage migrant at the southern border from promise Trump any Democratic votes. obtaining an abortion. Kavanaugh stressed

52 that the "government has permissible make a superb justice of the Supreme Court interests in favoring fetal life, protecting the of the United States." best interests of a minor, and refraining from facilitating abortion." At the White House, Kavanaugh described his mother as influential in his legal path. George W. Bush praised Trump's selection of After teaching high school history, she went Kavanaugh in a statement, calling his to law school, became a prosecutor and later selection an "outstanding decision." a state court judge during his youth, and he said he thinks of her as the real "Judge "Brett is a brilliant jurist who has faithfully Kavanaugh." applied the Constitution and laws throughout his 12 years on the D.C. Circuit. He is a fine "Her trademark line was, 'Use your common husband, father, and friend -- and a man of sense -- what rings true, what rings false.' the highest integrity," Bush said. "He will That's good advice for a juror and for a son," he said.

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“White House counts on Kavanaugh in battle against ‘administrative state’”

The Washington Post

Robert Barnes and Steven Mufson

August 12, 2018

The White House did not mince words when in Kavanaugh’s words, form “a headless it introduced Judge Brett M. Kavanaugh to fourth branch of the U.S. Government.” business and industry leaders on the occasion of his nomination to the Supreme Court this “The ever-growing, unaccountable summer. administrative state is a direct threat to individual liberty,” White House Counsel “Judge Kavanaugh has overruled federal Donald McGahn said in a speech to the agency action 75 times,” the administration conservative Federalist Society in the fall. He said in a one-page unsigned memo touting has said the Trump administration’s efforts to what it considered the highlights of strike down government regulations will be Kavanaugh’s 12 years as a judge on the U.S. meaningless without judges who will “stand Court of Appeals for the District of Columbia strong.” Circuit. As he told another conservative group, “Judge Kavanaugh protects American “There is a coherent plan here where actually businesses from illegal job-killing the judicial selection and the deregulatory regulation,” the memo said. “Judge effort are really the flip side of the same Kavanaugh helped kill President Obama’s coin.” most destructive new environmental rules.” Kavanaugh, 53, for years has been an Hot-button social issues such as abortion and influential judicial voice questioning the race have so far dominated the debate about administrative state, with a string of opinions Kavanaugh’s nomination, but there is no that would sharply limit the power of federal more important issue to the Trump agencies, including the Nuclear Regulatory administration than bringing to heel the Commission, the Labor Department’s federal agencies and regulatory entities that, Occupational Safety and Health Administration and the Environmental

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Protection Agency. The decisions concern a hands, even to solve a pressing policy issue long list of topics — mortgage abuse, such as climate change.” greenhouse gases, even protecting employees from killer whales. Julia Stein, a UCLA law professor who specializes in environmental law, wrote in an His nomination concerns some who say the analysis that Kavanaugh’s rulings would agencies’ rulemaking powers protect the limit the agency’s efforts in the face of public. congressional gridlock.

“This is the end of the regulatory state as we “In a world where comprehensive climate know it,” said Rena Steinzor, a University of change legislation appears to be a long way Maryland law professor who specializes in off, a Justice Kavanaugh would likely present administrative law. “If he goes up there, they a hurdle to future agency attempts to regulate will never find a regulation they find climate change within the existing statutory acceptable. And they’re going to be making framework,” she wrote. the policy.” Kavanaugh has participated in more than 300 Kavanaugh’s confirmation, for instance, opinions, about a third of them dealing with could call into question the Supreme Court’s the scope of regulatory agencies. 5-to-4 ruling in Massachusetts v. EPA; in 2007, the court said greenhouse gases blamed The judge’s supporters say he rules for for global warming could be regulated under agencies when he finds they are exercising the Clean Air Act. The justice he would power specifically granted by Congress, but replace, Anthony M. Kennedy, joined the only after a thorough examination. court’s liberals to form the slim majority. “Kavanaugh takes the underlying questions The ruling opened a new front for EPA about the legitimacy of any agency’s actions regulation, but Kavanaugh has routinely very seriously,” said Jonathan H. Adler, ruled against the agency’s efforts. director of the Center for Business Law and Regulation at the Case Western Reserve “EPA’s well-intentioned policy objectives University School of Law. “His response has with respect to climate change do not on their been to enforce the rules pretty strictly.” own authorize the agency to regulate. The agency must have statutory authority for the His positions often take issue with the role of regulations it wants to issue,” Kavanaugh independent agencies — from the late 1800s wrote in a recent opinion about in regulating railroads through the 2009 manufacturers using hydrofluorocarbons, financial reforms — established with the potent greenhouse gases known as HFCs. purpose of protecting the public from more powerful individuals and corporations. Over He added that “Congress’s failure to enact time, these agencies often adapt to deal with general climate change legislation does not new problems in their areas not specifically license an agency to take matters into its own

55 mentioned by Congress when they were the constitutional system of separation of created. powers and checks and balances.”

In one case, he ruled in favor of SeaWorld, The majority in the case said that “PHH which had been fined $75,000 by OSHA after makes no secret of its wholesale attack on a killer whale dismembered and drowned a independent agencies — whether collectively trainer in front of hundreds of visitors. OSHA or individually led — that, if accepted, would said SeaWorld knew from earlier incidents broadly transform modern government.” that the whale was highly dangerous. It is often in dissent that Kavanaugh has A majority of the three-judge appeals court moved the law. Asked by the Senate panel backed OSHA. But Kavanaugh Judiciary Committee to list his 10 most dissented, calling OSHA’s action “arbitrary significant opinions, four of the top five were and capricious” because regulating the safety cases in which Kavanaugh disagreed with his of killer-whale shows is no different from colleagues on the D.C. Circuit but was later regulating the safety of tackling in football or supported by the Supreme Court. speeding in auto racing or punching in boxing. At the top of the list was a case in which he dissented when a panel of his court upheld the He wrote that the Labor Department “lacks constitutionality of the Public Company authority to regulate the normal activities of Accounting Oversight Board. participants in sports events or entertainment shows.” “In my view,” Kavanaugh told the senators in his questionnaire, “a key feature of the In PHH v. Consumer Financial Protection board’s structure — that its members were Bureau , Kavanaugh’s colleagues on the removable only ‘for cause’ by the Securities circuit court overturned his decision that the and Exchange Commission, whose members agency lacked authority because its sole were removable only ‘for cause’ by the director was not subject to dismissal by the President — unconstitutionally limited the president. President’s Article II authority to supervise the Executive Branch.” “This is a case about executive power and individual liberty,” he wrote, siding with The Supreme Court’s conservatives, in a 5- PHH, a mortgage lender that challenged the to-4 vote, agreed with Kavanaugh. CFPB after it fined the company $109 million. Kavanaugh also argued against the ability of agencies created in an earlier era to regulate “Because of their massive power and the modern business. In a case regarding net absence of Presidential supervision and neutrality, he wrote that the Federal direction, independent agencies pose a Communications Commission lacked the significant threat to individual liberty and to authority to regulate without explicit instructions from Congress.

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“Congress has debated net neutrality for downwind — even if the state spewing many years, but Congress has never enacted emissions was harming the health of those net neutrality legislation or clearly authorized downwind. the FCC to impose common-carrier obligations on Internet service providers,” “It undercuts environmental protection to Kavanaugh wrote. “The lack of clear such an extent that it hearkens back to pre- congressional authorization matters.” EPA powers when we had tragedies like Love Canal and 1969 burning of the Kavanaugh is especially concerned with the Cuyahoga River,” said Pat Gallagher, “major rules doctrine.” Congressional director of the environmental law program at authorization would be needed for any the Sierra Club. “Kavanaugh’s speeches, regulation of vast economic or political opinions and writings all indicate antipathy significance — a major rule. toward strong regulatory powers like EPA needs to do its job.” Ian Fein, a lawyer with the Natural Resources Defense Council, said the doctrine would It is also the one instance in which the “turn parts of administrative law on its head Supreme Court reversed a Kavanaugh and strip agencies of power they currently decision, ruling 6 to 2 for the EPA. have under numerous statutes to deal with problems that arise in different areas.” Another reason Kavanaugh has upset environmentalists: In some cases, he made it Fein said: “Congress passes laws that tougher for independent groups such as the establish agencies that deal with new NRDC to file suits to protect the public problems that arise. Under Kavanaugh, interest and health. In Public Citizen, Inc. v. agencies would not be able to use existing National Highway Traffic Safety power. They would have to go to Congress to Administration, Kavanaugh’s 2007 majority enact new laws.” ruling questioned Public Citizen’s standing based on increased risk of future harm. Kavanaugh’s opinions have drawn opposition from groups not normally “Kavanaugh questioned whether the outspoken on judicial appointments. The courthouse door should ever be opened to NRDC has announced that it opposes plaintiffs suing based on increased risk of Kavanaugh’s nomination; its only prior harm created by the action they’re public opposition to a Supreme Court challenging,” Fein, the NRDC lawyer, said in nominee was to Justice Samuel A. Alito Jr. an interview. “That would have a dramatic impact on citizens but also organizations like Other environmentalist groups are also NRDC that bring lawsuits to try to protect the alarmed. They point to a case called EME public health and welfare. It is deeply Homer City Generation, L.P. v. EPA. troubling.” Kavanaugh wrote a majority opinion saying that the EPA could not regulate pollution Adler said his review of Kavanaugh’s from one state that was afflicting other states decisions shows him to be “evenhanded,”

57 using the same evaluation of agency actions for Scotusblog.com, found the judge to be a whether they could be characterized as liberal “reflexive” friend of business. or conservative. “Those who worry that Kavanaugh’s judicial The judge in some cases has upheld EPA philosophy will stand as a barrier to regulations and in at least one case found that government regulation of big businesses — environmental groups had the legal standing including when it comes to policies like net to intervene in a case, Adler said. neutrality — are right to feel that way,” he wrote. “Conversely, those who celebrate that Others, such as Washington lawyer Eric philosophy as tending to make the market and Citron, who analyzed Kavanaugh’s record the country a freer place will find a like- minded champion on the Supreme Court.”

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“Seeking a successor to Justice Kennedy’s complex legacy”

The Hill

Douglas W. Kmiec

July 10, 2018

This being an election year, Justice Anthony in any just society. It does not follow that Kennedy’s retirement came as a surprise. each of those essential rights is one that we as Was the timing simply observance of the judges can enforce under the written unstated rule that a justice tries to resign Constitution. The Due Process Clause is not when his political party is incumbent, or did a guarantee of every right that should inhere it represent — like the reputation of Justice in an ideal system.” Kennedy himself — that the electoral question could go either way? When the courtly southern gentleman, Lewis Powell, resigned from the court in 1987, The Supreme Court’s 2017-2018 term President Ronald Reagan did not involved everything from whether a baker immediately turn to Kennedy to ill the with religious objection could be required to vacancy. Reagan’s first choice was Robert cater same-sex weddings, to the legitimacy of Bork, with whom Kennedy shared much by presidential limits on migratory and refugee way of conservative ideology but with a travel, to the collectability of so-called crucial difference. Bork, by nature, exuded an agency fees from nonmembers of public- almost categorical — some would say employee unions. As disparate as these may arrogant — rejection of any judicial role in seem, each case asked the court to resolve the the articulation and defense of un- tension between individual liberty and enumerated or implied rights. Kennedy left governmental power. Justice Kennedy was in open the possibility of judicial intervention, the majority in each. suggesting a zone of liberty, a zone of protection, where the individual can tell the As Kennedy wrote at the time of his government “beyond this line you may not confirmation, “one can conclude that certain go.” essential, or fundamental, rights should exist

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This may seem a subtle difference, but it was The Supreme Court with a Kennedy over that boundary that Bork was rejected successor will now need to more clearly and Kennedy confirmed, 97 to 0. identify the due process and equal protection nature of his rulings. Over his tenure, Kennedy favored the conservative outcome well over 90 percent of In matters of race, Justice Kennedy was not the time. On the Rehnquist Court in the 1980s prepared to embrace Chief Justice Roberts’ and ’90s, he often shared the midpoint with notion that, to get beyond the troubling use of Justice Sandra Day O’Connor. The hot topics race, one must stop using it in decision- of those days implicated issues of race, making. Instead, while rejecting the religion and abortion. Kennedy would be generalized reliance upon race to bring more reluctant than O’Connor to extend the diversity to the law school at Michigan, use of race beyond provable past Kennedy for a court majority allowed the discrimination, was more accommodating University of Texas to seemingly satisfy than O’Connor to public interaction with constitutional concerns by promising, faith-based organizations, and with vaguely, not to rely upon race indefinitely O’Connor (and Justice David Souter) and consciously monitoring admission reconstructed, but did not overrule, the practices to ensure that race remained a abortion right found in Roe v. Wade. modest, individualized consideration.

O’Connor tended toward the pragmatic or Reagan and Bush supporters indulged the fact-specific while Kennedy repeatedly idea that an appointment or two on the stressed an overarching limit on Supreme Court would lead to the overruling governmental power: Yes, the defense of of Roe; Justice Kennedy would disappoint on human rights can be left to the political that prospect. Waxing philosophic, he posited process but not where that process is a that moral reality was subject to self- manifestation of hostility. definition and, thus, abortion was different than the taking of other human life. Thus, Kennedy’s recent concurrence Nevertheless, he moderated the impact of upholding President Trump’s travel ban Roe by joining with Justices O’Connor and reasoned that “governmental action may be Souter to put abortion off-limits unless such subject to judicial review to determine limitations created an “undue burden.” He whether or not it is ‘inexplicable by anything persuaded his colleagues to sustain but animus.’” State legislation that denied limitations on a particularly gruesome form civil rights protection on the basis of sexual of abortion and, in his final week, concurred orientation had no rational basis, said in the invalidation of a California statute Kennedy, and it would be a short distance mandating that entities not offering abortion from that to his conclusion that the be coerced to inform patients of the Constitution precludes limiting marriage to a availability of abortion elsewhere. man and a woman.

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Who might succeed him? By constitutional a Souter-like opportunity to appoint someone design, impartial judges are chosen from with a short paper trail; Margaret Ryan of the among political partisans. Given today’s armed services’ Court of Appeals provides stark political divisions, he almost certainly the historic opportunity to nominate the first understood that his retirement would subject female Marine. the Supreme Court to what passes for discourse in a midterm election. The discussion will be intense, as it should be. As Justice Kennedy wrote in one of his At a minimum, Democratic partisans are last concurrences, “history ... shows how likely to closely scrutinize the Federalist relentless authoritarian regimes are in their Society list on which President Trump found attempts to stifle free speech ... Freedom of Neil Gorsuch; are the remaining listed speech secures freedom of thought and candidates in the moderate, Kennedy mold? belief.” Moreover, it will not be lost on Democrats that whoever is appointed by President And lest the point be obscure, Justice Trump may well rule on the president Kennedy expressly conditioned his himself, given the special counsel acceptance of the facial validity of the travel investigation. ban with these words: “It is an urgent necessity that officials adhere to these Names already are circulating. Judge Jeffrey constitutional guarantees and mandates in all Sutton of the U.S. Court of Appeals for the their actions, even in the sphere of foreign Sixth Circuit, Judge Diane Sykes of the affairs. An anxious world must know that our Seventh Circuit, and former judge and government remains committed always to the constitutional religion-clause expert Michael liberties the Constitution seeks to preserve McConnell received shortlist attention in the and protect, so that freedom extends outward, past and are likely to again. Amy Coney and lasts.” Barrett, new to the Seventh Circuit, presents

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“In Influence if Not in Title, This Has Been the Kennedy Court”

New York Times

Adam Liptak

June 27, 2018

Justice Anthony M. Kennedy has served for professor and political scientist at more than 30 years under two chief justices: Washington University in St. Louis. William H. Rehnquist and John G. Roberts Jr. Courts are by tradition named for the chief To be sure, Justice Kennedy often voted with justice. Since 2005, it has been the Roberts the court’s conservatives. He wrote the court. majority opinion in Citizens United, which allowed unlimited campaign spending by But if influence were the deciding factor, it corporations and unions, and he joined the would be more accurate to speak of the period majority in Bush v. Gore, which handed the since 1988 as the Kennedy court. 2000 presidential election to George W. Bush. Justice Kennedy also voted with the Justice Kennedy has occupied a place at the court’s conservatives in cases on the Second court’s ideological center for his entire Amendment and voting rights. tenure, though he shared the middle ground with Justice Sandra Day O’Connor for most Not infrequently, though, he joined the of his first two decades. On her retirement in court’s liberal wing in important cases on 2006, his vote became the undisputed crucial contested social issues, including liberal one in most of the court’s closely divided decisions on gay rights, abortion, affirmative cases. action and the death penalty. A court containing two Trump appointees could chip There have been about 51 decisions in which away at those rulings. Justice Kennedy joined a liberal majority in a closely divided case, while Chief Justice Mr. Trump has vowed, for instance, to Roberts dissented. All of those precedents appoint justices committed to overruling Roe could be in jeopardy, said Lee Epstein, a law v. Wade, the 1973 decision that established a constitutional right to abortion. That would

62 not happen overnight if another Trump That language — earnest, flowery, a little appointee joined the court, but aggressive mystical — was characteristic of his judicial restrictions on access to abortion would very writing, which was not to everyone’s taste. likely be sustained. Justice Kennedy’s opinions were studded The vote count in the court’s most recent with vague and soaring language. abortion case is telling. In 2016, when the court was short-handed after the death of “At the heart of liberty,” he said in a 1992 Justice Antonin Scalia, Justice Kennedy decision upholding the constitutional right to joined the court’s four- member liberal wing abortion, “is the right to define one’s own to strike down a restrictive Texas abortion concept of existence, of meaning, of the law. That ruling would almost certainly have universe and of the mystery of human life.” come out differently from a court without Justice Kennedy and with two Trump Phrases like that infuriated his critics, notably appointees. Justice Scalia. In a 2003 dissent, Justice Scalia mocked “its famed sweet-mystery-of- The right to same-sex marriage seems more life passage,” calling it “the passage that ate secure, and Mr. Trump has said he considers the rule of law.” the issue settled. But a court including a second Trump appointee would be quite Justice Kennedy’s final opinions on the court unlikely to expand gay rights and would had a valedictory quality. He wrote an instead be receptive to arguments from inconclusive decision in a clash between a religious groups that object to same-sex baker and a gay couple, and he joined a pair marriage. of decisions ducking the question of whether the Constitution prohibits partisan According to a court spokeswoman, Justice gerrymandering. Kennedy told his colleagues on Wednesday of his decision to step down, effective July Justice Kennedy valued civility and dignity, 31. and the Trump years seemed to take a toll. In Tuesday’s decision upholding Mr. Trump’s “It has been the greatest honor and privilege travel ban, he seemed to chide the president to serve our nation in the federal judiciary for for incivility even as he said the courts could 43 years, 30 of those years on the Supreme do nothing to force him to behave with the Court,” Justice Kennedy said in a statement. decorum Justice Kennedy prized.

In a letter to Mr. Trump, Justice Kennedy, 81, “There are numerous instances in which the expressed “profound gratitude for having had statements and actions of government the privilege to seek in each case how best to officials are not subject to judicial scrutiny or know, interpret and defend the Constitution intervention,” he wrote. “That does not mean and the laws that must always conform to its those officials are free to disregard the mandates and promises.”

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Constitution and the rights it proclaims and more often than any other justice. The term protects.” yielded an extraordinary run of conservative rulings, including blockbusters upholding “The oath that all officials take to adhere to Mr. Trump’s travel ban and dealing a sharp the Constitution is not confined to those blow to public unions. spheres in which the judiciary can correct or even comment upon what those officials say “This term gave us a preview of what the or do,” he wrote. “Indeed, the very fact that Supreme Court would be like if Chief Justice an official may have broad discretion, Roberts were to become the swing vote,” said discretion free from judicial scrutiny, makes Leah Litman, a law professor at the it all the more imperative for him or her to University of California, Irvine. adhere to the Constitution and to its meaning “Progressives will lose, and they will lose a and its promise.” lot, except in a few criminal cases.”

A new Trump appointee would almost Legal experts struggled to recall a recent certainly vote with the court’s most example of a chief justice who was also the conservative members, thrusting Chief swing justice. Justice Roberts into the court’s ideological center. The chief justice has drifted slightly Justice Kennedy himself did not like to be to the left in recent years, but aside from two called the swing justice. “The cases swing,” votes sustaining President Barack Obama’s he said in 2015 at Harvard Law School. “I health care law, it is hard to point to a major don’t.” decision in which he disappointed political conservatives. That was correct. His jurisprudence contained an idiosyncratic mix of “Should Roberts become the median, the commitments, but they were fixed and court could move well to the right, taking its strong, and they yielded vigorous opinions, place as the most conservative court in very often speaking for the majority. modern history,” Professor Epstein said. “Every day you’re not in the majority you In the Supreme Court term that just think is a dark day,” he told C-Span in 2009. concluded, Chief Justice Roberts already By that standard, Justice Kennedy had very seemed to be moving to the court’s center, few dark days. voting with the majority in divided cases

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“A Liberal’s Case for Brett Kavanaugh”

New York Times

Akhil Reed Amar

July 9, 2018

The nomination of Judge Brett Kavanaugh to skepticism about newfangled attacks on the be the next Supreme Court justice is property rights of criminal defendants — President Trump’s finest hour, his classiest have found their way into Supreme Court move. Last week the president promised to opinions. select “someone with impeccable credentials, great intellect, unbiased judgment, and deep Except for Judge Garland, no one has sent reverence for the laws and Constitution of the more of his law clerks to clerk for the justices United States.” In picking Judge Kavanaugh, of the Supreme Court than Judge Kavanaugh he has done just that. has. And his clerks have clerked for justices across the ideological spectrum. In 2016, I strongly supported Hillary Clinton for president as well as President Barack Most judges are not scholars or even serious Obama’s nominee for the Supreme Court, readers of scholarship. Judge Kavanaugh, by Judge Merrick Garland. But today, with the contrast, has taught courses at leading law exception of the current justices and Judge schools and published notable law review Garland, it is hard to name anyone with articles. More important, he is an avid judicial credentials as strong as those of consumer of legal scholarship. He reads and Judge Kavanaugh. He sits on the United learns. And he reads scholars from across the States Court of Appeals for the District of political spectrum. (Disclosure: I was one of Columbia Circuit (the most influential circuit Judge Kavanaugh’s professors when he was court) and commands wide and deep respect a student at Yale Law School.) among scholars, lawyers and jurists. This studiousness is especially important for Judge Kavanaugh, who is 53, has already a jurist like Judge Kavanaugh, who helped decide hundreds of cases concerning prioritizes the Constitution’s original a broad range of difficult issues. Good meaning. A judge who seeks merely to appellate judges faithfully follow the follow precedent can simply read previous Supreme Court; great ones influence and help judicial opinions. But an “originalist” judge steer it. Several of Judge Kavanaugh’s most — who also cares about what the important ideas and arguments — such as his Constitution meant when its words were powerful defense of presidential authority to ratified in 1788 or when amendments were oversee federal bureaucrats and his

65 enacted — cannot do all the historical and that Judge Kavanaugh answer all fair conceptual legwork on his or her own. questions at his confirmation hearing.

Judge Kavanaugh seems to appreciate this Fair questions would include inquiries not fact, whereas Justice Antonin Scalia, a fellow just about Judge Kavanaugh’s past writings originalist, did not read enough history and and activities but also about how he believes was especially weak on the history of the various past notable judicial cases (such as Reconstruction amendments and the 20th- Roe v. Wade) should have been decided — century amendments. and even about what his current legal views are on any issue, general or specific. A great judge also admits and learns from past mistakes. Here, too, Judge Kavanaugh Everyone would have to understand that in has already shown flashes of greatness, honestly answering, Judge Kavanaugh would admirably confessing that some of the views not be making a pledge — a pledge would be he held 20 years ago as a young lawyer — a violation of judicial independence. In the including his crabbed understandings of the future, he would of course be free to change presidency when he was working for the his mind if confronted with new arguments or Whitewater independent counsel, Kenneth new facts, or even if he merely comes to see Starr — were erroneous. a matter differently with the weight of judgment on his shoulders. But honest Although Democrats are still fuming about discussions of one’s current legal views are Judge Garland’s failed nomination, the hard entirely proper, and without them truth is that they control neither the confirmation hearings are largely pointless. presidency nor the Senate; they have limited options. Still, they could try to sour the The compromise I’m proposing would depart hearings by attacking Judge Kavanaugh and from recent confirmation practice. But the looking to complicate the proceedings current confirmation process is badly broken, whenever possible. alternating between rubber stamps and witch hunts. My proposal would enable each This would be a mistake. Judge Kavanaugh constitutional actor to once again play its is, again, a superb nominee. So I propose that proper constitutional role: The Senate could the Democrats offer the following become a venue for serious constitutional compromise: Each Senate Democrat will conversation, and the nominee could pledge either to vote yes for Judge demonstrate his or her consummate legal Kavanaugh’s confirmation — or, if voting skill. And equally important: Judge no, to first publicly name at least two clearly Kavanaugh could be confirmed with the better candidates whom a Republican ninetysomething Senate votes he deserves, president might realistically have nominated rather than the fiftysomething votes he is instead (not an easy task). In exchange for likely to get. this act of good will, Democrats will insist

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“Trump Picked Kavanaugh. How Will He Change the Supreme Court?”

Politico

Politico Magazine

July 9, 2018

In the end, President Donald Trump made the ‘The Court will be transformed into a expected choice: Brett Kavanaugh, a blatantly partisan institution’ conservative jurist who has served on the U.S. Court of Appeals for the D.C. Circuit Geoffrey R. Stone is Edward H. Levi since 2006. Kavanaugh, a former clerk to the distinguished professor of law at the retiring Anthony Kennedy, has a sterling University of Chicago. reputation in conservative legal circles, and a Political conservatives have been working for record to match. this moment for the past 50 years – since the In his remarks announcing his pick, Trump election of Richard Nixon. For half a century, suggested he had chosen Kavanaugh for his they have sought to take control of the originalist conception of the law -- a Supreme Court. The problem for them, philosophy more in keeping with the late however, is that as they made ever more Antonin Scalia than with the more activist progress in achieving their objective, the Kennedy. “What matters is not a judge’s concept of “conservative” jurisprudence political views but whether they can set aside grew ever more radical. Nixon’s appointment those views to do what the law and the of conservative justices like Warren Burger, Constitution require,” the president said. Harry Blackmun and Lewis Powell brought Kavanaugh reinforced that idea in his own about a significant move in the Court to the comments, remarking, “A judge must be right. But then political conservatives independent and must interpret the law, not concluded that this wasn’t conservative make the law.” enough. Instead of embracing justices who were committed to judicial restraint, they But how will Kavanaugh rule once he’s increasingly sought justices who were actually on the bench? We asked top legal committed to conservative judicial activism – thinkers to evaluate his record -- and tell us to justices who would hold unconstitutional how he might change America’s highest laws regulating campaign finance, laws court. restricting guns, laws guaranteeing voting rights for minorities, laws authorizing *** affirmative action and laws restricting

67 commercial and corporate speech. Although boldly tossing around terms like originalism, Elizabeth Price Foley is professor of Law at judicial restraint and “calling balls and Florida International University College of strikes,” in fact these justices – at least in the Law. most controversial and important constitutional decisions – almost without Judge Brett Kavanaugh’s nomination to the exception reached results that were consistent Supreme Court is likely a turning point for with – and dictated by – raw conservative constitutional interpretation. His political ideology. commitment to textualism and originalism will help the Court restore power to the Sometimes, though, the conservatives failed political branches and consequently, the in their appointments, and some Republican- American people. Unlike activist judges who appointed justices – such as John Paul believe “law is politics” and feel empowered Stevens, Sandra Day O’Connor, David to impose their subjective preferences on the Souter and Anthony Kennedy – insisted on country, judges such as Kavanaugh believe judicial independence and refused to toe the strongly that law is the end product of party line. This has no doubt been frustrating. politics, not a continuation thereof, and the But if Brett Kavanaugh’s nomination is judiciary's duty is to enforce the laws confirmed, these arch-conservatives, led by (including the Constitution) as written. With the Federalist Society, will finally achieve Kavanaugh’s addition, the Supreme Court victory. The Supreme Court – largely will enter a new era, defined by its because of the unconscionable refusal of commitment to textualism and originalism, Senate Republicans to confirm President which should help de-politicize law by Obama’s nomination of D.C. Circuit Court of cabining judicial power and moving policy Appeals Chief Judge Merrick Garland – will debates back to the political branches where have won the day. Across the entire spectrum they belong. Expect Justice Kavanaugh to be of critical constitutional issues – ranging an outspoken leader of this new generation of from abortion to gay rights to affirmative Supreme Court originalists and textualists, action to gerrymandering to campaign whose hallmark will be a strong defense of finance to the regulation of guns and beyond enumerated rights, meaningful enforcement – they will now hold a majority. This is a of the Constitution’s separation of powers, stunning victory for partisan judicial decision and a healthy skepticism of judicial deference making, and a stunning defeat for the to the administrative state. integrity and credibility of our Supreme Court, which will now be transformed into a *** blatantly partisan institution. Whatever happens with Kavanaugh, the *** process is terribly broken’

‘A turning point for constitutional John Culhane is H. Albert Young fellow in interpretation’ constitutional law and co-director of the

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Family Health Law and Policy Institute at An Obama justice would have pushed the Delaware Law School (Widener University). court to the left; this Trump appointee will drive it to the right, quite dramatically. And It began before he was even nominated to fill to get there, we have to live through yet Justice Anthony Kennedy’s Supreme Court another Kabuki spectacle of the confirmation seat, and now the microscopic focus on Brett hearing, during which Kavanaugh will follow Kavanaugh will reach even higher resolution. the proud tradition of revealing nothing of There are several solid pieces that explain his substance about his views despite desperate positions on a host of issues, and we can efforts from Democrats on the Senate expect these views – as well as his role in Judiciary Committee to make him crack. (In several high-profile matters (most famously his case, agnosticism will be hard to pull off, including the Ken Starr investigation of since he has such a long tenure as a federal President Bill Clinton, and the Bush v. Gore appellate judge, but he’ll manage.) debacle) – to lead to much questioning and hand-wringing from the Senate in the weeks It’s time to move to long, fixed terms for to come. When the din subsides, his Supreme Court Justices. If they were confirmation looks likely. The only thing that appointed to something like a 12-term (and might sink it would be some dramatic, 11th- then would cycle down to the lower federal hour revelation. That’s highly unlikely, given courts, if they so chose), the replacement that the conservative Federalist Society has process would attain some regularity, and thoroughly screened all possible nominees each president would have a predictable before passing them along to the White number of replacements to name. What we House, in a process that White House have now is nuts. Counsel Don McGahn infelicitously described as “in-sourced.” ***

Whatever happens with Kavanaugh, the ‘Please, my liberal friends, calm down’ process is terribly broken. The number of Michael W. McConnell is Richard and appointments a president gets to make Frances Mallery professor at Stanford Law depends on when sitting justices decide to School, director, Stanford Constitutional retire, or when they die – as did Justice Law Center and senior fellow, Hoover Scalia, in 2016. Life tenure means Institution. appointments are few, as many justices serve for decades on end. The stakes are therefore President Trump did the least Trump-like so high that it’s no surprise Senate Majority thing. He chose a solid, broadly respected, Leader Mitch McConnell cheated by refusing experienced jurist to replace Justice Anthony to even consider Merrick Garland, President Kennedy on the Supreme Court: Brent Barack Obama’s nominee, as a replacement Kavanaugh, a 12-year veteran of the second for Scalia. most important court in the land. Trump avoided the temptation to spit in the eye of the establishment or throw red meat to his

69 base. (The right-wing base, indeed, has been technology is quickly making abortion grumbling that Kavanaugh is not exciting and almost impossible to prohibit. radical enough.) Same-sex marriage is in even less danger. That does not mean the Democratic Again, Obergefell was not the best-reasoned opposition will refrain from hyperventilating. of decisions, but there is zero appetite on the For some reason, when Democratic right to reverse it. At most, individuals and presidents place liberal Democratic justices religious groups opposed to the practice will on the Court, Republicans remain calm. They be protected from being coerced to lend their may oppose. They may even oppose when support or approval. That should have been they should not. But the four horses of the the law all along. apocalypse are kept in the barn, out of sight. The nominees even get a substantial number Citizens United is probably here to stay. But of Republican votes. Merrick Garland aside, this is not because of replacing Kennedy with Obama’s two nominees both got 67 votes. Kavanaugh. Kennedy wrote Citizens United. But when Republican presidents nominate Moreover, it is nonsense to claim the conservative justices no less qualified, sane, Kavanaugh appointment will “shift the and moderate, the left throws a fit. It matters ideology of the Supreme Court for decades to not who the nominee is. come.” It shifts one seat. If Justice Clarence Please, my liberal friends, calm down. Thomas were to leave the bench – heaven forfend – under Trump’s replacement as Abortion is not in danger. Roe v. Wade is an president, we could easily see the most liberal intellectual mess and the practice of abortion Court since the days of Lyndon Johnson. is anything but “safe, legal and rare,” as President Bill Clinton wanted it to be. But the The balance of the Court is never set in stone. Supreme Court as an institution is slow to Over the past two terms, Justices Stephen change and extremely slow to admit its Breyer and Elena Kagan have more mistakes. I may be a poor vote-counter, but it frequently broken from their more leftward is hard for me to count five votes for colleagues to forge a more moderate path, overruling Roe. At most, the Court will often in conjunction with Chief Justice John continue the path of the past two decades of Roberts. Temperamentally and permitting reasonable regulation but jurisprudentially, Kavanaugh is more like to protecting the core of the right to an abortion. be part of this invigorated middle than to And even if I am wrong about that, remember swing toward the extremes. It would be a that a reversal of Roe means nothing more good thing for the country if the Court moved than a return to the democratic process. If in a less polarized direction. abortion is as valued as right at Democratic Like generals fighting the last war, Supreme activists claim that it is, there is no need to Court nomination activists make the mistake protect it from the voters. Moreover, of looking backward. Kavanaugh will likely serve on the Court for 20 or 30 years. The big

70 issues of the Kavanaugh Court will not be distinguishes Kavanaugh is his long and abortion or same-sex marriage, but the distinguished service on the prestigious U.S. difficult issues of liberty and democracy Court of Appeals for the D.C. Circuit, which raised by the administrative state. These has given him ample opportunity to reflect on questions will not break down on right-left questions of separation of powers and the lines. Nor is criminal justice the partisan vast power of federal agencies. He will likely issue it was back in Nixon’s day. Kavanaugh work to reign in the vast power of federal has almost no record on criminal justice agencies, which has hypertrophied to an issues, because his court has very little extent that greatly undermines the criminal jurisdiction, but as the late Justice Constitution’s system of checks and Antonin Scalia showed, textualist balances. He will also likely be sympathetic conservative justices are often the friends of to ensuring that states have their proper role due process protections for criminal as autonomous sovereign actors in significant defendants. policy areas. All of this transcends partisan politics. It should make Democrats happy if Liberal activist groups are not likely to love it happens while Donald Trump is president any Republican nominee, but they should be – liberals are rediscovering the charms of happy to have a nominee who sticks to the federalism in response to the administration’s law and values judicial restraint rather than immigration and climate policies – and one who might pursue a substantive agenda frustrate them if he is not. not disciplined by text, history and precedent. They could do a lot worse than Brett Beyond that, the cottage industry of Kavanaugh. prognosticating how any particular nominee will decide particular issues says more about Liberals should do the un-anti-Trumpiam our society than about the nominees. It is thing: oppose the nominee if they must, but fundamentally a symptom of the vast power keep calm, stay civil and talk about the law. the Court has claimed for itself. For example, how a court of appeals judge rules in a *** particular case is only vaguely connected to ‘He will likely work to reign in the vast how he would rule as a Supreme Court power of federal agencies’ justice. They are different jobs. The former have vastly more discretion; at the same time, Eugene Kontorovich is professor at they are under vastly more pressure from the Northwestern University School of Law. media, politicians and so forth. Court of Appeals judges decide far more cases, and Brett Kavanaugh is, like all the short list of have no say over their docket – it is easy to potential nominees, a highly intelligent jurist particular find decisions to justify any particular view a out a judge. Nor does with clear conservative leanings. That should personal background have much to do with it not be news – he is the choice of a Republican – the Catholic Justice Anthony Kennedy president and a careful vetting process. What

71 wrote the decision recognizing gay marriage, redistricting. The Court may now rule on anathema to the Church. voting rights, partisan gerrymandering, campaign finance laws and the one-person- Attempting to predict nominees’ particular one-vote doctrine (conservative activists decisions in cases 10 years down the road is want only citizens counted for redistricting). really a form of Kremlinology. The Supreme Kavanaugh should be grilled on his stance Court has massive power; each justice is, in toward America’s wobbly democracy. the long run, perhaps as consequential as anyone but a president. Thus like pagans Second, expect a hard clash around faced with fickle weather, or U.S. strategists presidential power. Kavanaugh helped write faced with an inscrutable Soviet Union, we the Starr Report urging the impeachment of must construct stories to explain things that President Bill Clinton. He has denied drafting affect us greatly but over which we have very the salacious stuff. But its G-Rated sections limited control. My read of the chicken insisted a president could be impeached for entrails is that Judge Kavanaugh is too lying to the public and his staff. Later, the entrenched in the establishment to overrule nominee suggested that Congress pass a law Roe v. Wade, for example. But certainly that immunizing presidents from any criminal decision helps explain why the position he investigation while in office. Either position has been selected to fill is so godlike in its is problematic. The Court may be asked to power. rule on everything from whether the Mueller probe can enforce subpoenas to issues arising *** from the Stormy Daniels lawsuit to the Trump Foundation’s fishy charitable ‘An alarming day for democracy’ expenditures. Think of a major ruling like Michael Waldman is president of the U.S. v. Nixon four decades ago, ordering the Brennan Center for Justice at NYU School of president to produce his tapes. Senators Law and the author of The Second should ask, in detail: Is a president above the Amendment: A Biography and The Fight to law? Vote. Finally, we’ll get a depressing glimpse of the Three quick thoughts come to mind. asymmetrical politics of judicial nominations. Conservatives long have First, it’s an alarming day for the law of organized around the Court and the democracy. On this topic, the Roberts Court Constitution, campaigned around it and voted has been activist, relentless, and destructive. about it. When the GOP blockaded Merrick Take Citizens United. Or Shelby County Garland’s nomination, Democrats barely said (gutting the Voting Rights Act). Or this a word. For years, well-funded groups like year’s rulings on voter purges and racial the Judicial Crisis Network have mobilized to gerrymandering. The Roberts Court even support Federalist Society-vetted nominees. came within one vote – Kennedy’s – of Now, finally, progressives have begun to blocking citizen ballot measures to reform spend money and build organizational

72 muscle. But with the filibuster gone, and the hardscrabble life story that might better elusive goal of a hard right Supreme Court in resonate in the heartland (or put as much reach, it may all be too late. pressure on Red State Democratic senators).

*** The one issue of potential pause for originalists and textualists has nothing to do ‘Will he be too much like John Roberts?’ with Kavanaugh’s dedication to those interpretive theories, but rather to those extra- Ilya Shapiro is senior fellow in constitutional legal concerns that made him a quick studies at the Cato Institute. frontrunner for this slot. Will he be too much Donald Trump’s pick of Brett Kavanaugh to like John Roberts, restrained and minimalist be the next Supreme Court justice shows that rather than letting the political chips fall an unconventional president can play a where they may? I hope not; I hope instead conventional political game. Judge that President Trump gave us the Gorsuch 2.0 Kavanaugh would have been considered by a that this country needs. Ted Cruz or Marco Rubio administration — *** and that’s a good thing. It shows how serious constitutionalism has permeated the ‘Trump went with a known and reliable Republican Party regardless of who’s in the insider’ White House. Orin S. Kerr is Frances R. and John J. As Kavanaugh himself said: “A judge must Duggan distinguished professor at the be independent and must interpret the law, University of Southern California Gould not make the law. A judge must interpret School of Law. statutes as written. And a judge must interpret the Constitution as written, informed by Conservatives should be very happy with history and tradition and precedent.” That all President Trump’s selection of Brett seems straightforward, but Kavanaugh has a Kavanaugh. Judge Kavanaugh would be on long track record of holding government any Republican president’s short list. He has officials’ feet to the constitutional fire, been a prominent conservative judge on the pushing back on administrative agencies and D.C. Circuit, and he is well known and well enforcing the separation of powers. liked among the conservative legal elite. He has also been a thought leader whose views He’s also a scholar and a teacher, and a wily get attention and respect among the current political operator. It’s that last bit that makes Supreme Court justices. Judge Kavanaugh is his selection a bit of a surprise — particularly very conservative, and the Senate vote on his given Trump’s “drain the swamp” ethos and candidacy may have few if any votes to spare. a Supreme Court list that originally didn’t But the story here is that President Trump have any “coastal elites.” That too is not went with a known and reliable insider whose necessarily a knock on Judge Kavanaugh, but nomination will thrill the conservative legal a double-Yale D.C. lifer doesn’t have the community.

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*** Wall Street works is abject and total. He is surely correct that people who work on Wall 'Their criticisms... are both generic and Street command high salaries, but he has not banal' the foggiest idea of what they do to make financial markets from credit cards to home Richard A. Epstein is the Laurence A. Tisch mortgages work. Professor of Law, the New York University Kirsten Gillibrand is similarly indignant School of Law, the Peter and Kirsten Bedford when she writes: “He can’t be trusted to Senior Fellow, The Hoover Institution, and safeguard rights for women, workers or to the James Parker Hall Distinguished Service end the flow of corporate money to Professor of Law Emeritus, and Senior campaigns.” But there is not a glimmer of an Lecturer, the University of Chicago Law argument as to which of these various claims School. should be accepted and which rejected. The In quieter and more sensible times, Donald jurisprudence of Senator Gillibrand is wholly Trump’s nomination of Brett Kavanaugh result-oriented. Any claim by a group that she would be greeted with widespread acclaim. supports should be respected. Any Kavanaugh is a respected jurist and a serious disagreement is conclusive evidence that a intellectual whose years of service on the party is unfit for a position on the Supreme Court of Appeals for the District of Columbia Court. At no point has she ever seriously has been marked by distinction. The only confronted arguments on the other side of any way to oppose a nominee of Kavanaugh's of these issues. Is there any preference for excellence is to insist that any nominee of women in employment that she would reject? Donald Trump, or indeed of any Republican Is there any reason to assume that unions president, is unfit for service on the United represent the interests of American workers States Supreme Court. or that they should be given monopoly power of critical labor markets? Or that corporate Sadly, that is exactly the line that the Senate contributions to political campaigns should Democrats have decided to take in their be regarded as a bad thing if union instantaneous frontal assault on the contributions are regarded as a moral Kavanaugh nomination. Their criticisms, imperative? some of which are gathered here, are both generic and banal. Not to be outdone, Elizabeth Warren writes: Kavanaugh is “hostile to health care for Bernie Sanders denounces Kavanaugh millions, opposed to the CFPB & corporate because he “will be a rubber-stamp for an accountability, thinks Presidents like Trump extreme, right-wing agenda pushed by are above the law – and conservatives are corporations and billionaires.” He made that confident that he would overturn Roe v. same charge about every reform proposed by Wade.” In her view, the only fit nominees for any Republican on any issue. But his the Supreme Court are those who embrace ignorance about how financial markets and free health care for all, or who support the

74 undue concentration of power in the hands of widely respected jurist, he’s the kind of the Consumer Fraud Protection Bureau nominee that could easily have been chosen whose excesses Judge Kavanaugh attacked in by John Kasich or Marco Rubio. I applaud his thoughtful opinion in PHH Corp. v. many aspects of Kavanaugh’s jurisprudence CFPT. Yet why a champion of limited and have reservations about others. But all government like Kavanaugh should think that are carefully reasoned, and well within any President is above the law remains a mainstream legal thought. complete mystery. Roe is of course a serious issue, both ways. I have no doubt that Roe On the plus side, Kavanaugh is a strong critic was wrongly decided in 1973, and said so at of the Chevron doctrine, which requires the time. But with the passage of 45 years, judicial deference to executive branch and its wide acceptance by much of the agencies’ interpretations of federal law. This American public make it far from clear that has obvious appeal to conservative and the decision should be overruled. One of the libertarian critics of the administrative state. hardest questions of constitutional law is the But it should also commend itself to liberals extent to which the passage of time insulates who complain (with some justice) that earlier decisions from reversal. But Warren’s Republican agency heads play fast and loose dogmatic mind can never see two sides on with the law. More fundamentally, a any issue, so she comes off as uneducated, reduction in deference can help ensure that shrill and self-righteous. the dominant interpretation of the law does not change radically any time a new party The intellectual poverty of the case against takes control of the White House. Kavanaugh Judge Kavanaugh made by these influential also has a strong record on freedom of senators is powerful testimony as to why the speech, religious freedom and Second Senate confirm him. Amendment rights, all areas where modern government imperils liberty. *** I am far less enthusiastic about Kavanaugh’s Ilya Somin is a law professor at George support for broad executive power in the Mason University, and an adjunct scholar at national security realm. History shows that the Cato Institute. He is the author of excessive judicial deference in this field has Democracy and Political Ignorance: Why led to serious abuses. I am also skeptical of Smaller Government is Smarter. Kavanaugh’s advocacy of “unitary executive” theory —the idea that nearly all The Trump administration has violated executive power must be concentrated in the numerous norms and enacted a variety of hands of the president. This theory was sound dubious and cruel policies. But the in a period where the scope of executive president’s nomination of judge Brett power was confined to its comparatively Kavanaugh to the Supreme Court is as narrow original bounds. But it is both normal as such decisions get. Not only is dangerous and contrary to the original Kavanaugh a well-known, thoughtful and meaning to concentrate so much authority in

75 one person’s hands in an era when the Republicans denied him a vote. Before that, executive wields vastly greater power than most Democrats voted against the was granted at the time of the Founding. confirmation of Justice Samuel Alito, and most Republicans voted against Justices If the Senate should confirm any well- Elena Kagan and Sonia Sotomayor, even qualified nominee who is within the judicial though all three had impressive credentials. “mainstream,” then Kavanaugh’s Senators, therefore, have every right to confirmation should be a no-brainer. But we oppose a highly qualified nominee if they do not live in a world where any such norm object to his judicial philosophy. I look is followed. Merrick Garland was also highly forward to a vigorous debate on that subject qualified and mainstream, yet Senate during the confirmation hearings.

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“Brett Kavanaugh is Devoted to the Presidency”

The Atlantic

Garrett Epps

July 9, 2018

Not since Warren Harding in 1921 nominated Kennedy; Kavanaugh worked for President former President William Howard Taft to be George H.W. Bush’s Solicitor General, chief justice has the country been presented Kenneth Starr, then, after Bush left office, with a high court nominee so completely worked with then-Independent Counsel Starr shaped by the needs and mores of the investigating the Clinton White House. In executive branch as Brett Kavanaugh, 2001, Kavanaugh went to the White House unveiled Monday night as President Donald himself to serve George W. Bush, first in his Trump’s nominee to replace Justice Anthony legal counsel’s office and then, for five years, Kennedy. as his staff secretary, ensuring a smooth flow of paper among the president and his aides. Though Kavanaugh served as Kennedy’s law While in the White House, he married clerk during the October 1993 term, the another Bush retainer, Ashley Estes, who had contrast between the two men could hardly be served for nearly a decade as Bush’s personal more complete. Kennedy’s roots lay in his secretary. Bush originally named Kavanaugh days of small-town private practice; he made to the Court of Appeals for the District of his way to the bench from private practice, Columbia Circuit in 2003, though and, as a judge, he was conservative but Democratic opposition delayed his independent. Kavanaugh has been the confirmation until 2006. creature and servant of political power all his days. It would be the height of folly to expect Much will be made of the nominee’s deep that, having attained his lifetime’s ambition religious faith and his many charitable works. of a seat on the Supreme Court, he will He certainly appears to be a man of large become anything else. intellect and sterling character. But this assiduous courtier’s brilliant career has A product of the District and its affluent seldom been even momentarily exposed to Maryland suburbs, Kavanaugh attended the world beyond the Washington Beltway, Georgetown Prep with another D.C. in which most Americans live with the princeling, Neil Gorsuch. He went on to Yale decisions made inside it. Indeed, College and Yale Law School. He and Kavanaugh’s strong Washington identity Gorsuch served together as law clerks for may have been the reason his name did not

77 appear on candidate Trump’s initial short list that federal judges should displace of court picks before the 2016 election; specialized agencies in setting regulatory Kavanaugh surfaced as a possible court pick policy. Under a current doctrine called only long after the voters had picked Trump Chevron, agencies interpret the statutes under to “drain the swamp.” which they operate. When those interpretations are challenged in court, After Kennedy announced his departure, federal judges ask whether the statute is some in conservative circles expressed “ambiguous”—capable of two or more unease with the idea of a Justice Kavanaugh. readings. If so, the judges must ask whether They noted that Kavanaugh temporized the agency’s interpretation is “reasonable”; if during the Affordable Care Act litigation, so, the courts “defer” to the agency’s reading. arguing that the challenge was premature; he refused to adopt the harshest possible anti- Kavanaugh rejects this approach; he argues abortion position during Hargan v. Garza, a that “judges often cannot make that initial case testing whether a teenaged woman held clarity versus ambiguity decision in a settled, in immigration detention could leave lockup principled, or evenhanded way.” Instead, he to have an abortion. (Kavanaugh wrote that wrote in Harvard Law Review, “courts the woman was wrongly asserting “an should seek the best reading of the statute by immediate right to abortion on demand”— interpreting the words of the statute, taking not that she had no right to choose abortion at account of the context of the whole statute, all.) These quibbles are a textbook illustration and applying the agreed-upon semantic of what Sigmund Freud once called “the canons.” Yet from what I can tell, that “best narcissism of minor differences.” There is no reading” is no more determinate than is reason to believe that, on issues ranging from “ambiguity”; indeed, it sounds to me a lot like health care to consumer and labor rights to “the judge’s view of best policy.” the Second Amendment, Kavanaugh’s votes and opinions will be anything but reliably One could imagine, of course, that conservative—clothed at times, perhaps, in Kavanaugh’s experience pursuing soothing rhetoric, but more consistent, and wrongdoing in the Clinton White House more conservative, than Kennedy’s. might incline him to a jaundiced view of presidents generally, thus offering a hope Kavanaugh seems most likely to make his that, on the bench, he will be independent of mark are in two areas important to the president who appointed him. But in a Washingtonians—executive authority and 2009 article in Minnesota Law Review, administrative law. As befits an executive Kavanaugh, by then a life-tenured judge, creature, Kavanaugh’s decisions incline announced that the independent-counsel toward the “unitary executive” view of investigation in which he served had been a presidential power, which holds that mistake after all: “[T]he nation certainly Congress cannot set up federal agencies that would have been better off if President are not under the direction and control of the Clinton could have focused on Osama Bin president. In administrative law, he argues Laden without being distracted by the Paula

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Jones sexual harassment case and its No doubt that position was agreeable to criminal-investigation offshoots.” He Trump and those around him. suggested instead that Congress should, by statute, simply provide that a sitting president could neither be sued, indicted, tried, investigated or even questioned by prosecutors while in office. Problem solved.

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“Chief Justice Roberts Moves to Man in the Middle on the Supreme Court”

Wall Street Journal

Brett Kendall

July 2, 2018

Though John Roberts has been chief justice University of Chicago law professor Aziz of the United States for 13 years, this fall’s Huq said it has been 80 or 90 years since the term may see the true birth of the Roberts chief justice was also the court’s median Court. justice. “It creates some interesting questions, because With the retirement of Justice Anthony Kennedy, Chief Justice Roberts will be the the chief justice is supposed to be new man in the middle on the Supreme Court. institutionally minded,” he said. “We He will have four steadfastly liberal justices evaluate chief justices in terms of the on his left and likely four deeply conservative performance of the court.” ones to his right, including a second justice appointed by President Donald Trump. Most notably, it raises the question of how often Chief Justice Roberts will choose to be That new ideological math is expected to give the leader of the court’s newly dominant the chief justice greater leverage to steer the conservative wing versus seeking to craft a direction of the court than at any time since broader coalition of justices. the George W. Bush appointee joined it in 2005. “For all sorts of reasons, Roberts is going to be central to whatever happens,” said The chief is the sole justice whose role, by William & Mary law professor Neal Devins. tradition, goes beyond casting votes and “Being the median justice and having the writing opinions and extends to serving as the power as chief justice to assign opinions, custodian of the court’s role and reputation. you’re really running things.” Chief justices have often shown concern that the institution not depart too markedly from Chief Justice Roberts often has sought to be public sentiment or issue opinions that are the voice of the court, especially on cases of strongly at odds with presidential or particular gravity, such as last week’s ruling congressional actions. upholding Mr. Trump’s travel ban.

That puts Chief Justice Roberts in a highly For the 2017-18 session, Chief Justice unusual position: a chief who also will be a Roberts was in the majority in 93% of the swing vote. court’s

80 rulings, according to data compiled by be seen as a partisan body that decides all of SCOTUSblog, surpassing Justice Kennedy the nation’s big legal issues on 5-4 votes. for the top spot for the first time in years. “Roberts is a pretty cabined and cautious But the chief justice also has been spectator opinion writer, and that might be due to him to a handful of the court’s most notable being chief,” said Mr. Huq. decisions, cases in which Justice Kennedy spoke for the court after forging a majority Chief Justice Roberts made his first public with his liberal colleagues to recognize a remarks since the Kennedy retirement on constitutional right to same-sex marriage and Friday, appearing at a regional legal to preserve affirmative action. conference for a question-and-answer session with a longtime federal appeals court judge, That is far less likely to happen now. Because J. Harvie Wilkinson. he is more conservative than Justice Kennedy, Chief Justice Roberts is unlikely to “I don’t know of anybody who is more be in play to the same degree, narrowing the committed to the character and integrity of liberals’ options for coalition building. the courts and the institution,” Judge Wilkinson said of Chief Justice Roberts. He Chief Justice Roberts has rarely joined with noted that there have been only 17 chief the liberals in 5-4 cases, though he did so justices in the nation’s history, far fewer than famously in 2012 when that lineup upheld the presidents. Affordable Care Act, President Barack Obama’s signature health-care law. That He asked Chief Justice Roberts whether he coalition also joined together in a cellphone felt the weight of his office in ways that don’t privacy decision last month. apply to his colleagues. “I think there is something to that, yes,” the chief justice More often, the chief justice has joined with responded. “As the chief justice, I feel some other conservatives to move the law obligation to be something of an honest distinctly to the right. He has been part of broker among my colleagues. I don’t major decisions weakening campaign finance necessarily go out of my way to pick fights.” laws, public-sector unions and Jim Crow-era voting rights protections. His court has There are some clear differences between strengthened gun rights and issued a long Justice Kennedy and Chief Justice Roberts. string of rulings that have been favorable to The chief, for example, has been steadfast in corporations and employers. opposition to racial preferences, and in oral arguments this past term he also sounded The chief justice, however, also has shown an more dubious than Justice Kennedy about affinity in many circumstances for narrow, whether courts should referee cases alleging incremental rulings that pick up more votes, that politicians have gerrymandered districts and legal observers say his strong sense of in extreme ways for partisan gain. stewardship means he won’t want the court to

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More broadly, Chief Justice Roberts’s tenure chief justice would be eager to overturn has shown him to be skeptical of litigants precedents that Justice Kennedy helped set, attempting to use the courts for policy gains including on politically charged issues like that they have been unable to win in abortion and gay rights. Congress. He dissented from a Kennedy ruling last month that overturned decades of Mr. Devins of William & Mary said the new- legal precedent in giving states more power look court with Chief Justice Roberts in to require merchants to collect sales taxes on control may limit the application of some of internet purchasers. The chief justice argued those precedents, but “I am not sure there are that if changes were needed, they should many cases where Kennedy cast the fifth vote come from the legislative branch. for a liberal outcome that are vulnerable to formal overruling.” Legal analysts, however, said the differences between the two men didn’t mean that the

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“Chief Justice John Roberts is now the Supreme Court’s swing vote”

The Washington Post

Christopher Ingraham

June 27, 2018

The retirement of Supreme Court Justice The thick black line in the middle of the chart Anthony M. Kennedy is all but certain to shift is the important one: the ideological position the ideology of the court to the right. of the median justice. You can see that it doesn't stray too far from the zero line, As the court's swing vote, Kennedy is what particularly relative to the thin orange and political scientists call the “median justice." blue lines denoting the court's most Plot out the ideology of the court's nine conservative and liberal members, members, and you'll find Kennedy smack in respectively. the middle with four conservatives on one side and four liberals on the other. The Let's focus on the right end of the chart, median justice wields considerable power on which brings us close to the present day. the court: On decisions that split neatly by There's a thin yellow line there indicating the ideology, you can't have a majority without ideological position of Kennedy. You'll the median justice. notice it perfectly tracks with the black median justice line. Political scientists have used different methods to calculate judicial ideology over Here comes the important part: In terms of the years. One of the most widely used is the ideology, the conservative justice closest to Martin-Quinn score, which, at the risk of Kennedy is Chief Justice John G. Roberts Jr., greatly oversimplifying, tracks how often according to the Quinn-Martin scores. justices vote with each other in affirming or President Trump is almost certainly going to reversing lower-court cases. nominate somebody to the right of Roberts. Trump's previous confirmed nominee, The nice thing about this score is that it Justice Neil M. Gorsuch, for instance, is allows us to place each justice on an much closer to Justice Samuel A. Alito Jr. ideological scale, which in turn allows us to than he is to Roberts on the Quinn-Martin track the overall ideology of the Supreme scale. Court over time, including the position of the crucial median justice. Here's what that looks With Kennedy gone, and (presumably) a like, going back to 1937. conservative to the right of him filling the vacancy, that means that Roberts becomes

83 the court's next median justice. As of the debate among political scientists over the 2016 term, that would shift the ideological best way to track Supreme Court ideology score of the median justice rightward, from over time. One big knock against Martin- Kennedy's -.362 to Roberts' +. 257, more than Quinn scores, for instance, is that they don't a half a total ideological point. at all consider the substance of the cases considered. To put it in simpler terms, the chief justice is now the court's swing vote. But regardless, it's clear that as long as Trump nominates a conservative to the right of One important caveat is that scores haven't Roberts, the balance of ideological power on been calculated for the 2017-2018 term, the court is about to undergo a considerable which just wrapped up. There's also some shift.

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“Chief Justice Roberts will be the ‘swing’ vote”

The Hill

Jonathan Nash

June 30, 2018

Chief Justice John Roberts may be the record confirms his reputation as ideological biggest beneficiary of Justice Anthony replacement for Justice Antonin Scalia, Kennedy’s retirement. Justice Kennedy has whose seat he took. served as the “swing vote” on the Court for much of his tenure, and certainly since the If President Trump now nominates someone retirement of Justice Sandra Day O’Connor ideologically similar to Justice Gorsuch, the last decade. new median Justice will hail from the Court’s existing ranks. Clearly, none of the four However, President Donald Trump will not Justices appointed by Democrats will be the be looking to appoint a “swing vote.” Indeed, new median. Of the conservative bloc, Chief if Justice Neil Gorsuch is any evidence, Justice Roberts is the obvious median. President Trump will try to appoint another reliable conservative. Chief Justice Roberts has already sometimes shown himself to be the “swing vote” in some Nonetheless, on a court of nine, there will cases. He has occasionally voted with the always be some Justice whose beliefs place liberal bloc to form a five-Justice majority him or her in the middle among his or her where Justice Kennedy has voted with the colleagues. Therefore, assuming President three other Republican-appointed Justices. Trump’s nominee will not be a swing vote, a Indeed, some conservatives still have yet to sitting Justice will assume that role. It is forgive the Chief Justice (or President likely that the new swing vote will be Chief George W. Bush for having appointed him) Justice Roberts. for his vote to uphold the constitutionality of President Barack Obama’s health care As political scientists and legal scholars have statute. expounded, if we arrange the Justices’ beliefs on some one-dimensional scale — most Adding to the notion that Chief Justice would understand this as ranging from “more Roberts will be the new “swing vote” is the conservative” to “more liberal” — some fact that, in his role as Chief Justice, Chief Justice will lie in the middle. Justice Roberts may feel some additional institutional pressure to vote sometimes with This “median Justice” will predictably be the the putative minority bloc. “swing Justice.” Justice Gorsuch’s voting

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The Chief Justice may vote apart from their Thus, Chief Justice Roberts would in many personal preferences in an effort to cases both cast the decisive vote and then effectively shepherd the entire Court. Indeed, assign the opinion-writing responsibility to scholars have observed that Justices who the Justice he’d prefer to write the opinion have served on the Court before becoming (including himself). Chief Justice change their voting patterns to some degree after becoming Chief Justice. To some degree, the role of “swing vote” might be a burden to Chief Justice Roberts. What would it mean for Chief Justice Roberts To the extent that the Chief Justice actively to become the Supreme Court swing vote? votes with the liberal bloc more often — or Chief Justice Roberts would represent the perhaps even to the extent that the media vote that in close, important cases controls portrays the Chief Justice as the swing vote— the balance of power. For that reason, just as his standing among conservatives may fall advocates often have framed their arguments further. with the goal of attracting the vote of Justice Kennedy, going forward advocates would At the end of the day, the increased stature instead try to appeal to Chief Justice Roberts. will probably outweigh any burden. Indeed, being Chief Justice means that John Roberts This would increase (even beyond the high cannot aspire to any higher judicial post point at which it already finds itself) the (other Justices can at least dream of being influence of Chief Justice Roberts over the elevated to Chief Justice one day). The only Court’s jurisprudence. Beyond the power to persona interest he might seek to further is to cast the decisive vote in many cases, the fact further burnish his reputation as Chief is that the Chief Justice always enjoys the Justice, and it seems that serving as “swing power to assign the responsibility of drafting vote” would in the long run serve to highlight the majority opinion when he is in the his reputation as a strong Chief. majority.

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“With Kennedy Gone, Roberts Will Be the Supreme Court’s Swing Vote”

New York Times

Julie Hirschfeld Davis

June 28, 2018

The retirement of Justice Anthony M. passionate about preserving the institutional Kennedy is likely to thrust Chief Justice John integrity of the court — will inch further G. Roberts Jr. into the court’s ideological toward the center. center, making him the deciding vote on abortion, gay rights and affirmative action “If Roberts stays right where he is now and cases alongside a newly solidified he becomes the median, it could pull the court conservative majority. quite a bit to the right,” said Lee Epstein, a law professor and political scientist at For the past dozen years, Justice Kennedy has Washington University in St. Louis. “He will sat in the ideological middle of the polarized prefer to try to form a coalition with the other court, with four liberal justices to his left and conservatives, although he will occasionally four conservative ones to his right, according side with the liberals.” to scores based on their voting patterns. His retirement will almost certainly mean that Justice Sandra Day O’Connor became more position goes to Justice Roberts, potentially moderate when Justice William J. Brennan encouraging him to be more moderate. Jr. and Justice Thurgood Marshall left the court, said Michael C. Dorf, a Cornell Law The chief justice, a conservative nominated School professor who clerked for Justice by Republican president George W. Bush, Kennedy, and Justice Kennedy likewise has drifted slightly to the left in recent years, moved to the center when Justice O’Connor drawing howls of protest from activists on departed. the right who have complained that he has proved to be a disappointment. But other than “It could manifest in compromise positions in two votes upholding the Affordable Care Act, his taking substantively more moderate Chief Justice Roberts, 63, has reliably sided stances on issues,” Mr. Dorf said. “He might with the court’s other conservatives. want to go slowly before taking an abortion case or an affirmative action case, or a same- With Justice Kennedy’s departure and the sex marriage case to potentially overturn likelihood that President Trump will succeed Justice Kennedy’s handiwork.” in winning confirmation of a conservative successor, the question is whether Chief A 2015 study in The Journal of Legal Justice Roberts — an incrementalist who is Studies, and related data ranking the justices in ideological order, found that Chief Justice 87

Roberts voted in a conservative direction 58 position, shying away from big, bold percent of the time over the last decade, but precedent-shaking decisions. leaned right when it mattered most. “He is a reliable conservative in the most closely “On a lot of major decisions, he already has contested cases but moderate when his vote been the swing vote, so it’s not an entirely cannot change the outcome,” the study said. new scenario,” said Carrie Severino, the chief counsel and policy director at the Judicial Mr. Dorf said that Chief Justice Roberts Crisis Network, a conservative legal group. might act differently now that Justice “He is someone who would rather answer Kennedy — often the deciding vote in those smaller questions.” cases — was gone, much like congressional leaders spare their most vulnerable members Ms. Severino said that makes Justice Roberts of Congress from casting deciding votes on something of a “wild card” on the question of politically difficult issues. whether to overturn Roe v. Wade, the 1973 decision that established the constitutional But William Baude, a law professor at the right to an abortion. “I don’t think anyone University of Chicago who clerked for knows what Chief Justice Roberts would do Justice Roberts, said there is no reason to in those circumstances,” she said. believe that he will evolve with a newly constituted court. Yet he is also seen as someone who cares deeply for the court’s institutional reputation, “I don’t think he’s really changed — he’s and someone who would like to avoid rulings been the same chief justice all along — and that make the Supreme Court appear to be people who want someone who’s just another partisan actor, with Republican- ideologically reliable are sometimes going to appointed justices voting in one direction and be disappointed by that,” Mr. Baude said. liberal justices unanimously on the other side “People made fun of him for describing the on a politically charged issue. role as an umpire calling balls and strikes, but I think that’s really the way he sees it.” David S. Cohen, a law professor at Drexel University, said some progressives hope that During the Supreme Court term that just instinct might steer Chief Justice Roberts ended, Justice Roberts voted with the away from overturning Roe, or from majority in divided cases more often than any invalidating same-sex marriage just a few other justice. years after it was decided because a Republican president was able to appoint two The result was a set of deeply conservative new justices. rulings, including one upholding Mr. Trump’s travel ban and another dealing a “The best hope is to appeal to the chief’s sharp blow to public unions. But he is also sense of the court as a special, above-politics regarded as an incrementalist who prefers a institution,” Mr. Cohen said in an email. slow, step-by-step process for staking out a “Overruling either of these cases in these

88 circumstances would make the court and its “After all, these justices don’t get to the point justices appear like petty politicians.” they are at in life without being political actors,” Mr. Cohen said, “and this may be his On the other hand, he added, Chief Justice political goal. Roberts may see the allure of presiding over the court that succeeds in undoing precedents reviled by conservatives.

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