Thursday, September 20, 2018
Opinion

A court transformed

So it’s all over but the voting. I’m writing this column on the assumption that Judge Brett Kavanaugh will soon be Justice Kavanaugh, despite the Democrats’ 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 Kennedy’s 30-year legacy will he embrace? What part will he repudiate?

I’d like to shift the field of vision and consider the impact of Kavanaugh’s arrival on the eight other justices — 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, "it’s a different court."

On one level, that’s a truism: In a group of people as small as nine, it’s hardly a surprise that the departure of one and arrival of another would alter some established patterns, even beyond a measurable shift in the group’s ideological midpoint. But it seems to me that Kennedy’s 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 Kennedy’s 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 O’Connor’s retirement was not a typical Supreme Court.

People may assume that the court has usually displayed some version of 4+4+Kennedy, but that’s 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 today’s polarization, the designation had far less significance than it has attained.

Further enhancing Kennedy’s 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 Scalia’s 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 — for schools — 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 Kennedy’s vote? I can’t prove it, but I thought so at the time, and still do.

The court’s conservatives were not the only ones who had to modify their behavior to take account of Kennedy. It often seemed to me that the court’s 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 conservatives’ 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.

I’ll 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 administration’s 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."

© 2018 New York Times

Comments
Editorial: Investigate first, then hold Kavanaugh confirmation vote

Editorial: Investigate first, then hold Kavanaugh confirmation vote

There should be a timely investigation of the allegation of sexual assault against Judge Brett Kavanaugh before senators hear from him and his accuser, let alone vote on whether they should confirm his nomination to the U.S. Supreme Court. The proces...
Updated: 2 hours ago
Editorial: Immigrants help to make America great

Editorial: Immigrants help to make America great

The heated debate on immigration could benefit from some more facts, which the U.S. Census has helpfully provided. And the facts show that rather than building walls, the United States would do far better to keep opening doors to legal immigrants. Th...
Updated: 11 hours ago
Editorial: FDA acts to keep e-cigarettes from kids

Editorial: FDA acts to keep e-cigarettes from kids

The federal Food and Drug Administration is bringing important scrutiny to the increasing use of e-cigarettes, requiring companies that make and sell them to show they are keeping their products away from minors. Vaping is the new front in the nation...
Published: 09/18/18

Tuesday’s letters: Honor Flight restored my faith in America

Dogs are the best | Letter, Sept. 15Honor Flight restored my faith in AmericaJust as I was about to give up on our country due to divisiveness and and the divisions among its people and politicians, my pride was restored. As a member of the recen...
Published: 09/17/18
Updated: 09/19/18
Editorial: Senate should delay vote on Kavanaugh

Editorial: Senate should delay vote on Kavanaugh

The Senate and the nation needs to hear more about the sexual assault allegation against U.S. Supreme Court nominee Brett Kavanaugh. Setting aside Kavanaugh's judicial record, his political past and the hyper-partisan divide over his nomination, a no...
Published: 09/17/18
Editorial: Tampa council has another chance to show it takes Stovall House changes seriously

Editorial: Tampa council has another chance to show it takes Stovall House changes seriously

The Tampa City Council has yet to hear a compelling reason to allow a private social club in a residential neighborhood off Bayshore Boulevard, and a final meeting on the matter scheduled for Thursday offers the council a chance to show the diligence...
Published: 09/14/18
Editorial: Focus on Hurricane Florence, not defending poor response in Puerto Rico

Editorial: Focus on Hurricane Florence, not defending poor response in Puerto Rico

Hurricane Florence began lashing down on the Carolinas Thursday and was expected to make landfall early Friday, washing over dunes, downing trees and power lines and putting some 10 million people in the path of a potentially catastrophic storm. Flor...
Published: 09/13/18
Editorial: Scott sends positive signal on Supreme Court appointments

Editorial: Scott sends positive signal on Supreme Court appointments

Gov. Rick Scott has headed down a dangerous path by announcing he has started the process to fill three upcoming vacancies on the Florida Supreme Court as he heads out the door. But to his credit, the governor indicated his "expectation’’ is that he ...
Published: 09/12/18
Updated: 09/14/18
Editorial: Stalled U.S.-Cuba relations hurting Florida business

Editorial: Stalled U.S.-Cuba relations hurting Florida business

After an encouraging start, the breakdown in America’s reset with Cuba is a loss for both sides and for the state of democracy across the region. Havana and Washington are both to blame, but the Trump administration’s hard line with Cuba is out of sy...
Published: 09/12/18
Lessons from Moonves’ ouster

Lessons from Moonves’ ouster

If the swift departure of CBS Chairman Les Moonves has a bright side, it’s that a major television network took accusations of sexual harassment against its chief executive seriously enough to hold him accountable and obtain his resignation even at t...
Published: 09/11/18
Updated: 09/14/18