A Long Time to Deliberate: Kavanaugh’s Decidedly Conservative Court

On Monday, July 9, 2018, in a grand ceremony fit for the choice’s importance, President Trump announced his next nominee for the Supreme Court: Judge Brett Kavanaugh, a current federal appeals court judge and former law clerk for the very justice he replaces. At just 53 years of age, 32 years younger than the oldest sitting justice, Kavanaugh holds the potential to be a strong conservative voice on the Supreme Court for years to come. A proponent of textualism and originalism, he has authored approximately 300 opinions during his 12 years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh is also considered “one of the most accomplished and impressive appellate judges in the country,” according to Harvard Law School professor Michael Klarman.

Still, Kavanaugh’s nomination is not without contention. Mere minutes after the official announcement of Kavanaugh’s nomination, several Democratic leaders — Sens. Bernie Sanders (D-Va.), Elizabeth Warren (D-Mass.), and Cory Booker (D-N.J.) among them — held a rally on the steps of the Supreme Court encouraging voters to fight to “defend Roe v. Wade.” Likewise, as an Ivy League graduate, former clerk for Justice Anthony Kennedy, and former White House staffer to President George W. Bush, Kavanaugh has been criticized as a member of the “GOP legal elite.”

His political ideology has also prompted controversy. According to Klarman, like “a lot of politically conservative judges who purport to be textualist or originalist,” Kavanaugh may be more inclined to rule based upon his political ideology instead of his theory of constitutional interpretation. This observation, continued Klarman, may prove particularly true in cases with a possible “liberal political outcome.”

The nomination of Kavanaugh and subsequent creation of a definitively conservative Court will likely not result in the immediate overturn of cases like Roe v. Wade and Obergefell v. Hodges. As Klarman noted, however, “there are a lot of ways the Court can undermine or even gut a decision without formally overruling it.” Kavanaugh’s nomination therefore poses a threat not to the existence of these rights and practices themselves — abortion, same-sex marriage, and race-based affirmative action among them — but rather the ease and extent to which citizens will be able to enjoy them.

A Move away from Moderation

Perhaps more important than Kavanaugh himself is who he replaces. Though conservative, Justice Kennedy acted as the swing vote on several landmark Supreme Court cases. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), for instance, Kennedy reaffirmed the controversial Roe v. Wade (1973) decision and noted that state abortion regulation could not place an “undue burden” on women seeking abortions. Later, in Fisher v. University of Texas (2015), Kennedy again sided with the liberal minority; he upheld the University of Texas’s race-conscious admission process and reaffirmed public universities’ ability to promote educational diversity. And in Obergefell v. Hodges (2015), Kennedy affirmed the right to same-sex marriage in all 50 states.

Kavanaugh, by contrast, has demonstrated a relatively stable dedication to conservative ideology. According to The New York Times, Kavanaugh is more conservative than approximately 66 percent of all other current and former federal judges nominated since 1980. In recent years, Kavanaugh upheld an abortion ban for undocumented immigrant minors and dissented that a District of Columbia ordinance banning a majority of semi-automatic rifles was unconstitutional. Kavanaugh’s nomination, if successful, would thus give the Supreme Court a clear conservative tilt for “the first time since the 1930s,” Curt Levey, the president of the Committee for Justice, told The New York Times.

An Informal Disposal

“Where this conservative tilt will manifest itself first,” Harvard Law School professor Richard Fallon said, is “unpredictable.” But with two anti-abortion cases currently circulating in the U.S. appeals court, abortion is a likely first target.

Each of these cases seeks to outlaw most abortions after 14 weeks, a move not uncommon in the United States: 29 out of 50 states are considered “hostile” to abortions according to the Guttmacher Institute. Moreover, if these cases were to successfully overturn Roe v. Wade, so-called “trigger laws” — laws with a clause specifying their near-immediate implementation should Roe be overturned — would take effect in Louisiana, South Dakota, North Dakota, and Mississippi, banning abortion completely. In other states, including Arkansas, Kansas, Kentucky, Missouri, and Ohio, state legislatures have expressed their intent to limit abortion to the maximum extent permitted. Only nine states have laws protecting a woman’s right to abortion, according to the Guttmacher Institute.

This sharp division across state legislatures represents a larger division of public opinion on abortion across the nation. According to a June 2018 Gallup poll, 48 percent of Americans identify as pro-choice, while another 48 percent identify as pro-life.

Still, only 18 percent of Americans favor a total ban on abortion. A complete upheaval of Roe v. Wade, according to Yale Law School professor William Eskridge Jr., is thus unlikely. Rather, as Eskridge informed the HPR, one can expect the Court to decide on a number of cases involving “restrictions on the supply of abortion — that’s where most of the action is going to be, regardless of whom the Senate confirms to the Supreme Court.”

These types of restrictions, as Theodore Joyce writes in the New England Journal of Medicine, include requirements that all abortions taking place after 16 weeks occur at hospitals (Texas), that abortions are performed only by physicians and not nurse practitioners (Arizona), or that abortion clinics meet the requirements of an ambulatory surgical center (Missouri). When “free-standing” abortion clinics cannot meet these requirements, they are shut down, and women seeking abortions must often travel out-of-state for the same services. As Joyce explains, however, “the farther women must travel to obtain an abortion, the lower the abortion rate will be.” These laws, which one can expect an increasingly conservative Supreme Court to uphold, will thus achieve the same effect as overturning Roe v. Wade without formally disposing of it.

Multi-Faceted Discrimination

As with Roe v. Wade, overturning the landmark Obergefell v. Hodges would prompt a strong outcry from various politicians and citizens alike. According to a May 2018 Gallup poll, 67 percent of U.S. adults believe gay marriages should be “legally valid,” a 7 percent increase since the ruling on Obergefell in 2015.

The Roberts court, Eskridge explained, “won’t overrule Obergefell.” But it can choose to interpret this precedently narrowly. As Jocelyn Samuels, executive director of the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy, warned the HPR, “if the Supreme Court in the future interprets Obergefell as applying solely to the license to get married but not to the other enjoyments of marriage — like parenthood or tax treatment — that is something that could … be very damaging for the LGBT community.”

Still, Obergefell is not the only LGBT-related case at issue. According to Eskridge, “the Roberts court will continue to expand the First Amendment to recognize the liberty of people who don’t like gay marriage.” Cases like Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, wherein a baker refused to create a wedding cake for a same-sex wedding on account of his religious beliefs, will thus continue to surface.

Samuels agreed these types of cases, while not directly forbidding the expression of one’s sexual orientation, are “tremendously consequential for the LGBT community.” The idea that individuals and businesses can “opt out of providing services to LGBT people has … serious repercussions for the health and wellness of LGBT people,” Samuels explained.

The question of whether federal law protects against workplace discrimination on the basis of sexual orientation is also likely to appear before the Supreme Court, according to Samuels. Today, only 20 states have laws expressly prohibiting discrimination based on sexual orientation and gender identity, while 11 others prohibit this discrimination as a result of a federal court ruling. This inconsistency, coupled with the Supreme Court’s refusal to hear a workplace discrimination case in 2017, suggests that similar cases will appear before the Court in the coming years.

As Samuels warned, however, a court without Kennedy, who frequently supported LGBT rights, may more often rule unfavorably for the LGBT community in these types of cases. These rulings would result in “large numbers of people who will lack protection from discrimination according to their sexual orientation or gender identity,” said Samuels. While the right to same-sex marriage may be relatively safe for now, a definitively conservative court could thus enable discrimination against the LGBT community in numerous other forms.

Obstructing Educational Diversity

A conservative ruling on race-based affirmative action could likewise have disastrous effects for racial minorities in the United States. Moreover, because race-based affirmative action refers to a considerably more specific area than abortion restrictions or LGBT rights as whole, it may be subject to a complete reversal.

Decided in 2016, the affirmative action landmark case Fisher v. University of Texas affirmed public universities’ ability to take race into account in order to promote educational diversity. Most Americans, however, opposed the decision; according to a July 2016 Gallup poll, 65 percent of Americans were against the Supreme Court’s ruling. This widespread public opposition, combined with the likelihood that, according to Klarman, Judge Kavanaugh would be a more conservative vote than Kennedy on the issue, may ultimately lead to the reversal of this precedent.

If this occurred, Klarman reassured the HPR that race-based affirmative action could occur in other ways: “There are ways of indirectly accomplishing diverse student bodies without explicitly taking race into account.” The University of Texas’s Ten Percent Plan, for example, automatically accepts the top 10 percent of every Texas public high school’s graduating class. But, because “the Texas education system is so de facto segregated,” Klarman explained, and there are “lots of schools that are overwhelmingly African-American or overwhelmingly Latino,” this policy accomplishes racial diversity while appearing neutral to race. Still, Klarman warned that it is currently unclear whether or not a conservative court would explicitly strike down this type of practice, and it may not be clear for the next few years.

Nonetheless, according to Eskridge, the Supreme Court can diminish past victories by “interpreting precedents they don’t like narrowly.” In this instance, it could apply the principles of Fisher v. Texas only to the specific public university system it describes, striking down race-based affirmative action in most other schools. And with private university cases like Students for Fair Admissions v. Harvard currently making their way through the lower courts, the Supreme Court will have ample opportunity to make such rulings. Race-based affirmative action, explicit or otherwise, is therefore at risk.

A Long Time to Deliberate

A definitively conservative majority could overturn or otherwise undermine precedent in other areas as well. The Court could revisit capital punishment cases like Atkins v. Virginia and Roper v. Simmons, where Kennedy refused to uphold capital punishment for mentally disabled individuals and juveniles. Likewise, gun control cases, which the Supreme Court has not ruled on since McDonald v. Chicago, may also resurface, defining the national government’s policies on semiautomatic rifle bans and concealed carry permits for years to come. A definitive conservative majority’s effects on statutory interpretation, the process by which courts interpret and apply legislation, could likewise have far-reaching consequences on everyday legislation, according to Eskridge.

In any case, assuming Kavanaugh’s successful confirmation process, a definitive conservative majority could scale back the rights of women, LGBT individuals, and racial minorities alike. And at just 53 years of age, Judge Kavanaugh has a long time to do just that.

Image Credit: Wikimedia Commons/Office of the Vice President

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