Now that we are about a week into the current makeup of the Supreme Court of the United States (SCOTUS) with the confirmation of Brett Kavanaugh. I want to present some initial thoughts on how the jurisprudence of the new SCOTUS could direct towards.
I do not have additional thoughts on how Kavanaugh's confirmation went outside that it was a stark reminder of what happens when (1) decisions involve how much alcohol one consumes and (2) how debates go when we simply appeal to each other's lowest base natures. I do think that it's best to try to move one and raise the standards of our dialogue.
The new John Roberts-led SCOTUS provokes these thoughts from me:
- Chief Justice Roberts is now considered the "swing-vote" on SCOTUS. He's certainly to the right of retired Justice Anthony Kennedy. However, while he may not vote for with the "liberal" bloc as often as Justice Kennedy, I feel he's quite chary to make sweeping decisions on very controversial issues like Roe vs. Wade and instead work towards more incrementalism that shifts the responsibility to the legislative branch like when he validated the individual mandate for Obamacare.
- Areas where this SCOTUS would probably show a strong rightward shift I see are in these areas:
1) administrative law where regulatory agencies will most likely be reigned in from making regulatory decrees not specified through legislative mandate;
2) gun ownership where there will probably be a large narrowing of what can be regulated, such as the scope of gun registration;
3) affirmative action where institutions (mainly in higher education) quotas based on race appear to be in great peril to be struck down at least for public institutions;
4) religious liberty in where folks can express their religious conscience in the public sphere, specifically in regards to forcing county clerks or business owners perform services outside of their conscience such as issuing services to LGBTQ individuals/couples. However, I do not think Obergefell v Hodges will be overturned.
The issue of abortion is a tough one to predict. While it appear the majority of SCOTUS would like to overturn Roe v Wade, I am skeptical they would actually do so. First, I'm chary that Chief Justice Roberts would push the issue himself as he has some more leeway in what cases that SCOTUS will hear. Second, I don't think that the other four Justices in the "conservative" bloc (Kavanaugh, Alito, Thomas, Gorsuch) will push the issue either, especially since Kavanaugh has in the past has skirted around the issue when he had the opportunity to do so...
Now we also know that the deciding vote in Kavanaugh's confirmation, Sen. Susan Collins, gave a strong argument in her reasoning that he supports Kavanaugh because she believes he wouldn't overturn Roe v. Wade
There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me. To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself. He believes that precedent “is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.” In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.
The judge further explained that precedent provides stability, predictability, reliance, and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court in Brown v. Board of Education overruled Plessy v. Ferguson, correcting a “grievously wrong” decision--to use the judge’s term--allowing racial inequality. But, someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is “grievously wrong” or “deeply inconsistent with the law.” Those are Judge Kavanaugh’s phrases.
As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight such that precedent can’t be trimmed or narrowed simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.
Noting that Roe v. Wade was decided 45 years ago, and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.
Now there are arguments both sides on whether this is a correct or utterly robust argument that Kavanaugh wouldn't overturn Roe v. Wade. But to me it shows that he at least really doesn't want to support tackling the issue. However, he may be more prone to support greater local restrictions, such as the ones recently passed in Iowa, the "Heartbeat" bill, which bans abortion six weeks after conception outside of rape, incest and medical emergency. This would be in fact what overturning Roe v. Wade would actually do, as I noted in a previous blog during this confirmation debate.
But as a Nobel Laureate once said, "The answer my friend, is blowin in the wind.."
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