Brett Kavanaugh’s ascension to the U.S. Supreme Court after a bitter confirmation battle will create what is likely to be the strongest conservative majority since the New Deal.
The Senate confirmed Kavanaugh 50-48 Saturday, letting him take the bench when the court hears its next arguments on Tuesday. Kavanaugh, who overcame allegations of sexual assault and misconduct dating to his school days, becomes President Donald Trump’s second appointee on the high court, joining Justice Neil Gorsuch.
The reconstituted court could roll back abortion protections, outlaw affirmative action, bolster religious rights and curb federal regulatory power. Kavanaugh’s work on a federal appeals court suggests he will align with his four fellow Republican appointees in ideologically divisive cases. Kavanaugh succeeds the retired Justice Anthony Kennedy, the court’s swing vote for the last decade.
'It is quite possible we will have not just a conservative court, but an aggressively conservative court -- a court that would not merely refrain from protecting civil rights, but one that may be poised affirmatively to strike down progressive state and federal laws and regulations for decades to come,' said Walter Dellinger, who served as President Bill Clinton’s top Supreme Court lawyer.
The revolution may take a little time to start. The court’s October and November argument calendars are littered with technical cases unlikely to offer more than a glimpse of Kavanaugh’s potential impact. On Tuesday, the justices will hear what had been a low-profile pair of cases over the Armed Career Criminal Act.
But the pace almost certainly will pick up next year, when the court will probably revisit the issue of partisan gerrymandering -- and could decide to bar any legal challenges.
The justices also are being asked in pending appeals to decide whether federal law bars job discrimination on the basis of sexual orientation and gender identity. In addition, they could soon be drawn into the fight over Trump’s effort to rescind deportation protections for young undocumented immigrants.
And before long, the court could be confronted with Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election and possible obstruction of justice by Trump. The Supreme Court has never said whether a president must obey a subpoena to testify in a criminal investigation.
The most politically charged case this year also could affect criminal investigations of people tied to Trump. The court is considering overturning the 'separate sovereigns' doctrine, which lets a state and the federal government each press its own prosecution stemming from the same conduct. A ruling overturning the doctrine could amplify the impact of any pardons Trump issues, potentially undercutting state investigations of those people.
The separate-sovereigns doctrine dates back to the mid-19th century as an exception to the constitutional protection against double jeopardy. Arguments haven’t yet been scheduled but could be in December.
The Pace of Change
Down the road, Kavanaugh’s arrival could mean sweeping changes, possibly including reconsideration of the landmark 1973 Roe v. Wade ruling, which legalized abortion nationwide.
He also could make the court even more business-friendly by ushering in an era of tougher scrutiny of federal regulations. In a dozen years on the federal appeals court that handles most regulatory cases, Kavanaugh sided with businesses on climate change, net neutrality and financial oversight.
Chief Justice John Roberts in all likelihood will determine the pace of change. He is solidly conservative, having voted against gay rights, abortion access and affirmative action.
But Roberts has also protected what he sees as the court’s institutional standing as a nonpartisan institution. He joined the court’s liberal wing to uphold former President Barack Obama’s Affordable Care Act, and has said the justices 'don’t work as Democrats or Republicans.'
Unlike Kennedy, Roberts isn’t a 'swing justice,' said Paul Clement, who was President George W. Bush’s top Supreme Court lawyer. The chief justice will be 'more a regulator of how quickly they’re going to go,' he said.
An important question is whether Kavanaugh will join Roberts as an occasional bridge-builder or will instead align himself with the less compromising threesome of Justices Clarence Thomas, Samuel Alito and Gorsuch.
The transition will be an abrupt one for Kavanaugh, who just over a week ago was angrily accusing Democrats of arranging a 'calculated and orchestrated political hit' against him.
Rancorous Confirmation Battle
His arrival will be almost as much of an adjustment for his eight new colleagues, who will quickly have to learn to work with a justice confirmed after one of the most rancorous confirmation battles in history. The sitting justices, at least publicly, have muffled any views they formed about the controversy.
Before the sexual assault allegations arose, Kavanaugh promised senators at a Judiciary Committee hearing that he would act as 'part of a team of nine.'
His tone changed dramatically when he returned to respond to the assault allegations and blamed 'apparent pent-up anger about Trump and the 2016 election' and 'revenge on behalf of the Clintons.' Those remarks served as a reminder of Kavanaugh’s politically tinged past, including his work on the independent counsel investigation that led to Clinton’s impeachment.
In an op-ed published Thursday in the Wall Street Journal, Kavanaugh wrote that he 'might have been too emotional at times' in his testimony.
'Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good,' he wrote.
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