Brett Kavanaugh Is About to Get a Lot More Powerful
(Bloomberg Opinion) - Justice Amy Coney Barrett's confirmation means Chief Justice John Roberts is no longer the Supreme Court swing voter.
Roberts had a good run in the seat of power, ruling against the census issue, DACA resignation, and abortion rights. Now, however, he will not be able to determine the outcome of a case by joining the liberals of the court. With only three Liberals on the field, Roberts would have to convince another Conservative to join him for a Liberal outcome. The judiciary that casts this fifth vote becomes the swing voter.
Who is going to play this powerful role now? Justice Brett Kavanaugh.
Kavanaugh is much less ideological than the other conservatives in the court. He is a conservative pragmatist. He cares about the power and how it's used. The only way for a conservative like Kavanaugh to wield power as a swing voter is to cast some votes that will make the liberals happy. Otherwise, you are just another reliable member of the Conservative majority - one without much power or influence.
He will not be centrist in partisan election cases, as his opinion in the Wisconsin case shows on Monday. So did Judges Anthony Kennedy and Sandra Day O'Connor, who both joined the Conservatives in Bush against Gore. But on big ticket ideological issues, Kavanaugh might be able to turn to the pragmatic. He's already dropped some tantalizing clues that he might be ready to move towards the center.
Consider Louisiana's major abortion decision last summer, June Medical Services v Russo. The all-powerful swing voter in this case was Roberts. He used his decisive voice to reverse the position he had taken years earlier in a nearly identical case from Texas. And Roberts made a strong signal that he wasn't interested in overthrowing Planned Parenthood against Casey, the landmark abortion rights case that established Roe versus Wade as valid precedent. Roberts' opinion in the June Medical case brought him to the camp of former swing judges Sandra Day O'Connor and Anthony Kennedy, who, along with Judge David Souter, wrote the control opinion in the Casey decision.
Kavanaugh did not join Roberts. However, he wrote a separate dissent in which he said that the case should not have been decided without further factual determination by the lower courts. He added that he wrote the same thing a year earlier when the same case came to the Supreme Court in an earlier iteration.
The point of Kavanaugh's dissent was to say that, in his view, the court should have tripped over the June Medical case and sent him back to the lower courts rather than making a decision. This view was to the right of Roberts' opinion; but it was subtly to the left of the views of other Conservatives. (Kavanaugh joined some but not all of the dissent of Justice Samuel Alito.)
This may sound like a small thing. At this point, however, Kavanaugh's vote wasn't that important. In retrospect, there is reason to believe that Kavanaugh would like the Conservatives to be cautious about Roe v. Overturning Wade and creating a major progressive backlash against the court.
Similarly, in a case called Ramos v. Louisiana, Kavanaugh wrote a lengthy statement of his own last spring describing how he thought the court should deal with the rigid decision doctrine, the idea that courts should follow precedent. The opinion should be reasonable and careful. It could be read to suggest that Roe should be knocked over - and that's how I read it then. But it also left a little room for the possibility that Kavanaugh would take a more moderate position, closer to the one Roberts was demonstrating to abolish abortion rights, while still refusing to overthrow Casey, and with it Roe.
A dish where Kavanaugh is the swing voter is an extraordinarily conservative dish. It's important to remember that both Kennedy and Roberts likely weren't swing voters either. There is something about the very possibility of such centrist power that seems to affect the judges who are able to exercise it.
It is of course also possible that Kavanaugh refuses to become more centrist. If he votes with the Liberals and Roberts, he could lose some of his conservative friends. And after his confirmation hearings, the idea of reconciliation with liberals could be far-fetched.
However, the bitterness of his confirmation hearings also gives Kavanaugh an opportunity to seek reputational rehabilitation among liberals. Becoming a centrist and saving abortion rights - and perhaps positive action in higher education - might be just the thing. After all, Kavanaugh was an employee of Justice Kennedy, whose swing voting methods gave us gay rights, gay marriage and a constitution that extended to Guantánamo Bay.
This column does not necessarily reflect the views of the editors or Bloomberg LP and its owners.
Noah Feldman is a columnist for Bloomberg Opinion and host of the podcast “Deep Background”. He is Professor of Law at Harvard University and was an employee of the US Supreme Court, David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President".
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