A court transformed

Published September 13 2018
Updated September 14 2018

So itís all over but the voting. Iím writing this column on the assumption that Judge Brett Kavanaugh will soon be Justice Kavanaugh, despite the Democratsí continuing efforts to convert a futile battle over ideology into an ugly one over transparency and ethics. By the first Monday in October or soon thereafter, the Roberts court version 5.0 (accounting for the earlier arrival of Justices Samuel Alito, Sonia Sotomayor, Elena Kagan and Neil Gorsuch since Chief Justice John Roberts took his seat in September 2005) will be under way.

What then?

Most answers to the "What then?" question have offered side-by-side comparisons of Kavanaugh and the justice he will be succeeding, Justice Anthony Kennedy. What part of Kennedyís 30-year legacy will he embrace? What part will he repudiate?

Iíd like to shift the field of vision and consider the impact of Kavanaughís arrival on the eight other justices ó on the dynamic of the Supreme Court as a whole. Justice Byron White, who saw 13 new justices take their seats during his own 31-year tenure, once remarked that every time a new justice joins the court, "itís a different court."

On one level, thatís a truism: In a group of people as small as nine, itís hardly a surprise that the departure of one and arrival of another would alter some established patterns, even beyond a measurable shift in the groupís ideological midpoint. But it seems to me that Kennedyís departure and his replacement by a justice reliably to his right could well be transformative, and not just because the right to abortion may lose its tenuous hold or because the sun may finally set on affirmative action.

"Transformative" is a strong word. But consider the sustained impact that Kennedyís position in the center of the court had on colleagues both to his left and to his right. An odd-numbered court always has a center, of course, a "median justice," in the language of political science. But Kennedy was not just any median justice, and the court during the 12 years that he occupied that position after Justice Sandra Day OíConnorís retirement was not a typical Supreme Court.

People may assume that the court has usually displayed some version of 4+4+Kennedy, but thatís not the case. The current extreme polarization, with most important issues resolved by votes of 5-4 and one justice in a position to determine the course of constitutional law, is a historic anomaly. When I started covering the court in the late 1970s, there were three or four justices clustered at the center to whom lawyers presenting their cases had to make their pitch. (Pop quiz: What was the vote in Roe vs. Wade? Answer: 7-2.) Number-crunching no doubt could identify one or another of this group as the median justice during a given term, but in the absence of todayís polarization, the designation had far less significance than it has attained.

Further enhancing Kennedyís power was his unpredictability, his ideological swings from left to right and back again. Colleagues took his vote for granted at their peril. Kennedy also acted as a brake on the more hard-edge positions of those to his right with whom he basically agreed. For example, deep in Scaliaís lengthy opinion for a 5-4 majority in the landmark Second Amendment case District of Columbia vs. Heller were a few sentences suggesting that the constitutional right to individual gun ownership that the court was establishing did contain some limits. "Like most rights, the right secured by the Second Amendment is not unlimited," Scalia wrote, adding that "nothing in our opinion should be taken to cast doubt on long-standing prohibitions of the possession of firearms." He then listed several examples of "long-standing" prohibitions, including gun possession by people convicted of felonies and prohibitions on carrying guns "in sensitive places such as schools and government buildings." (One of those "long-standing" prohibitions ó for schools ó has proved short-lived.)

Was this language, different in tone from the rest of the opinion and structured almost as a "by the way," the price for Kennedyís vote? I canít prove it, but I thought so at the time, and still do.

The courtís conservatives were not the only ones who had to modify their behavior to take account of Kennedy. It often seemed to me that the courtís liberals treated him with kid gloves, signing on to opinions that they knew were weakly reasoned in order to keep him on their team, however briefly, and out of the conservativesí clutches.

What will the Supreme Court look like when neither side has to walk on eggs to win the favor of the one in the middle? It will be a more conservative court, for sure, and maybe a more honest one. Justices may feel more free to say what they really think, and the public will ultimately judge the result by expressing itself in electoral politics. History does not stop in 2018.

Iíll leave the last word to Kennedy. Many have remarked on the conservative turn he took during his final term on the court. There was no case in which he joined the liberal justices to make a 5-4 majority. One of his final opinions was an opinion concurring in the 5-4 decision that upheld the Trump administrationís Muslim travel ban. Only four paragraphs long, it was the opinion of a weary man. It was also, I think, the product of someone who, while fully aware of the troubling optics of a divided court engaging in such sweeping deference to executive authority, lacked the energy to fight his way through to the other side. His final words might, I hope, be given a strategic place somewhere at the court, perhaps in a desk drawer where a future Kavanaugh might come upon them as he starts his new job.

This is what Kennedy wrote: "An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts."

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