Justice Kavanaugh: What to expect

Now that Brett Kavanaugh has taken a seat on the Supreme Court, what might we expect? To help answer this qu...

Posted: Oct 9, 2018 11:03 AM
Updated: Oct 9, 2018 11:03 AM

Now that Brett Kavanaugh has taken a seat on the Supreme Court, what might we expect? To help answer this question, it is useful to employ a modified version of then-Secretary of Defense Donald Rumsfeld's quote about "knowns" and "unknowns."

"There are known knowns; there are things we know we know": Justice Kavanaugh is a conservative. While there is some disagreement about how conservative, every analysis I've read puts him at least to the right of Chief Justice John Roberts. This means that he is expected to join the chief and the other three Republican appointed justices to move the court to the right in clear and distinct terms over the next decade or so. After all, as a group, these five conservatives are quite young by historical comparisons. The oldest, Clarence Thomas, is 70, a full fifteen years younger than the oldest liberal justice, Ruth Bader Ginsburg.

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The new swing justice -- representing the ideological middle of the court and replacing the retiring Anthony Kennedy -- will likely be Chief Justice Roberts. And while Roberts has angered conservatives on occasion, particularly with his decision upholding the constitutionality of the Affordable Care Act (Obamacare), he is generally quite conservative.

With this group of five in place, the list of cases likely in line for elimination or significant reconstruction is fairly well known: Roe v. Wade (abortion), Grutter v. Bollinger (affirmative action), and Morrison v. Olson (presidential power), among others.

"We also know there are known unknowns; that is to say we know there are some things we do not know": Will Justice Kavanaugh succumb to the so-called Greenhouse Effect? The list of victims rolls off the tongues of conservative critics: Harry Blackmun, John Paul Stevens, and David Souter are among the most prominent.

They were all justices appointed by Republican presidents who, once on the high bench, proved to be more liberal than expected when appointed. Conservatives were so perturbed by this phenomenon, they gave it a label: the "Greenhouse Effect." But this has nothing to do with climate change.

Rather, the idea is that newbies on the bench sought to please the liberal Eastern elite, and more specifically, Linda Greenhouse, the longtime -- and now, former -- Supreme Court reporter for the New York Times. When they did, they moved to the left.

To combat this "known unknown," Republicans in the White House have targeted for selection to the Supreme Court candidates who have spent substantial time working in a Republican administration in Washington, believing these nominees would be less likely to be, as Richard Nixon put it earlier, "twisted by the Georgetown set."

After all, Blackmun, Stevens, and Souter spent little of their pre-Supreme Court careers in the nation's capital. In fact, Blackmun and Souter did not work there at all. Stevens served for a year as a clerk at the Supreme Court, and another on the staff of the Judiciary Committee in the House of Representatives. Notably, he did not work in the executive branch.

In contrast, all of the current Republican-appointed justices have spent significant time working in DC -- all during the early and formative parts of their legal careers, and all in the executive branch. In fact, soon after graduating from law school, Chief Justice Roberts and Justice Kavanaugh centered their lives there.

"Unknown Unknowns." Things we do not and cannot know at this time, including: From the brokenness of defeat, what will progressives do? And more importantly, how will voters respond to what they do?

Consider the following: On November 3, 1964, President Lyndon B. Johnson won one of the largest electoral landslides in the nation's history by capturing 61.05% of the popular vote; no one before or since has won a greater share of that vote. In addition, he secured the electoral votes of 44 states and the District of Columbia, losing only his opponent's home state and five states of the Deep South. Recall, the Congress had passed and LBJ signed the 1964 Civil Rights Act in July of that year, and white southern voters took out their anger on Johnson, a Texan.

The following year, LBJ named his good friend and leading liberal lawyer Abe Fortas to the court, replacing the slightly more conservative Arthur Goldberg. In 1967, he chose legendary civil rights attorney and his current solicitor general, Thurgood Marshall, for a seat on the high bench, replacing the third most conservative justice at the time, Tom Clark. With the addition of Marshall, the new swing justice was William Brennan, who, as his biographers highlight in their book title, was a champion to liberals.

But change was underfoot. Some of the Earl Warren-led court's decisions, particularly those expanding the rights of the accused, were deeply unpopular. At the same time, typical street crime was soaring, riots were raging in the nation's urban core, and anti-Vietnam War unrest was disrupting college campuses across the land. Into this space, Republican Richard Nixon unleashed an anti-Supreme Court "law-and-order" campaign. Third-party candidate George Wallace, the former and future governor of Alabama, joined in the court-bashing, including references to the nation's highest tribunal as a "sorry, lousy, no-account outfit."

As I explain in my book, "Nixon's Court," Nixon's judicial strategy succeeded in not only pushing the court to the right on the issues he cared most about, it helped him build a Republican electoral majority. More specifically, Nixon's strategy appealed to disaffected Democrats living in the South and the urban and suburban North, and those voters -- the latter mislabeled as "Reagan Democrats" -- would become essential components of a Republican coalition that would dominate presidential elections for the next two decades, only narrowly losing the Watergate-influenced race of 1976.

As a result, Republican presidents were able to select the next 10 justices for the court.

So what does this story of conservative success mean for progressives today? Well, as liberals have known since the 1960s, success in the judicial arena does not necessarily translate into victories at the polls. And when forced to defend controversial court decisions, liberals didn't always convince voters of the rightness of their cause.

Too often, at least according to some critics, they went back to the courts in an effort to score victories there, instead of building a grassroots movement to win on Election Day.

If the Supreme Court Donald Trump helped construct with the appointments of Justices Neil Gorsuch and Kavanaugh produces decisions that are unpopular -- as some polls suggest -- Democrats might look to the Nixon strategy in hopes of turning the tide both in court and at the ballot box.

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