The Kavanaugh court will be the one conservatives have worked for decades to construct, experts say, with velocity the only question about the Supreme Court’s advance to the right.
On the other hand, the proliferation of lawsuits from blue-state officials objecting to President Trump’s efforts to loosen environmental standards and impose tougher sanctions on immigration could fizzle.
Gone will be what one law professor called the “mushy middles” of Supreme Courts past, when justices such as Lewis F. Powell Jr., Sandra Day O’Connor and Anthony M. Kennedy held the key votes and sometimes abandoned their usual conservative colleagues to side with the left.
The median justice now is much more likely to be conservative Chief Justice John G. Roberts Jr., who in his 13 years on the court has been on the losing side of 5-to-4 votes on environmental protection, abortion restrictions, affirmative action and same-sex marriage, to name just a few.
“We’re headed for a whole new world,” said Irv Gornstein, executive director of the Georgetown Law Center’s Supreme Court Institute. “And the only questions, I think, are: How far are we going to go and how fast are we going to get there?”
Paul D. Clement, solicitor general under President George W. Bush and someone who often argues conservative causes before the court, said the change will require a new way of thinking about the Supreme Court.
“For years, the question was who’s the swing justice, and I’m not sure there will be one moving forward,” Clement said at the same Georgetown Law preview of the term.
It is more accurate to think of Roberts as a “governor switch,” Clement said, determining “whether the court moves quickly or slowly.”
The court’s liberals already have expressed alarm.
At a forum Friday at their alma mater Princeton, Justices Sonia Sotomayor and Elena Kagan worried about not only how the partisan battle over Kavanaugh might affect the court’s reputation, but also about how the court might change.
“I think it’s been an extremely important thing for the court that in the last really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who people found the center, who people couldn’t predict in that sort of way,” Kagan said.
“And that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. It’s not so clear, I think, going forward, that that sort of middle position — it’s not so clear whether we’ll have it.”
Of course, it was only two years ago that it seemed another side might own the court. After Justice Antonin Scalia’s death, President Barack Obama’s nomination of Judge Merrick Garland would have given liberals a majority on the court.
But Senate Majority Leader Mitch McConnell (R-Ky.) refused to let the nomination move forward, in hopes that a Republican president would fill the opening.
As a result, Roberts will play a unique role; not only is he likely to be the median justice, as the court’s chief he decides which justice writes the opinion when he is in the majority.
John P. Elwood, a Washington lawyer who practices before the court, predicted that Roberts might try to bring Kagan on board for some decisions — he has been successful in the past, when the decisions have been narrow — to minimize the number of 5-to-4 splits.
It has been clear in the past that Roberts has been reluctant to be viewed as overturning the court’s precedents, the doctrine know as stare decisis.
The key issue, said Washington lawyer Kannon Shanmugam, another Supreme Court regular, is “how is the new court — because the court is always a new court when it has a new member — going to approach the subject of stare decisis and the extent the new justice has diverging views from Justice Kennedy. . . . I think there are good reasons to believe it will be gradual.”
Gornstein agreed. “There is a risk. If we see one 5-4 decision after another, with Democrats on the four and Republicans-appointed on the five, the country at large will no longer view the Supreme Court in the same way it does now,” he said.
He said that Roberts has “mentioned this on more than one occasion. This is an outcome he fears more than almost any other”
But the difference between fast and gradual, said Donald B. Verrilli Jr., solicitor general under Obama, “is between one and five years.”
Roberts’s pattern, Verrilli said, is to raise questions about an issue in one decision, and then to act decisively when the next one comes along. That is how the court’s conservatives removed a key portion of the Voting Rights Act, for instance, and reversed the court’s precedent relating to public employee union dues.
And the direction of the court is not solely up to Roberts. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh are all thought to be to the chief justice’s right, and it takes only four justices to accept a case.
They might be willing to take on an issue even without Roberts’s support, figuring that the chief justice would vote their way. Thomas and Gorsuch, Trump’s other nominee to the court, in particular have shown that they are willing to reverse the court’s precedents.
Orin Kerr, a law professor at the University of Southern California who frequently writes about the court, predicts that the four will be presented with many opportunities.
“This will unleash a lot of test cases,” Kerr wrote in a series of tweets.
“Kavanaugh’s confirmation will mean that, for the first time in most of our lifetimes, there is a clear majority of conservative Justices. No mushy middles of Powell, O’Connor, Kennedy, but rather five solid conservatives.”
The most obvious places to look for change are the areas where Kavanaugh seems to differ from Kennedy, his former boss and mentor.
Gun control might be one area. Since the court recognized a Second Amendment right for people to own handguns for protection in their homes, gun advocates have been stymied in their efforts to get the Supreme Court to accept challenges to state and local bans on military-style rifles or other restrictions, such as on the right to carry weapons.
Speculation is that the court was unsure of Kennedy’s position, and that there was no reason to accept the case with the outcome in doubt.
Abortion, affirmative action, executive power, the death penalty and religious rights are all areas where Kavanaugh is thought to be to the right of Kennedy.
Moreover, Clement said the new court might be a less “tantalizing” prospect for lawsuits from Democratic attorneys general challenging Trump administration initiatives.
Even last term, with Kennedy on the court, that opportunity dimmed. The challenges to Trump’s travel bans, for instance, were upheld throughout lower courts. But the Supreme Court ruled on a 5-to-4 vote that the president did not exceed his authority.
It might be more likely that red states force the court’s hand. On abortion, for instance, a number of states have passed restrictions that would seem to clearly violate the court’s precedents in Planned Parenthood v. Casey and the underlying right to abortion identified in Roe v. Wade.
Court challenges to those laws might get the issue to the Supreme Court faster than Roberts — or Kavanaugh, for that matter — might want. And despite the assurances Sen. Susan Collins (R-Maine) said she received from Kavanaugh about precedent, Verrilli said he thinks the conservatives would overturn Roe.
“My expectation would be yes,” he said. “These are principled people” who thought the issue wrongly decided.
Ezra Austin in Princeton, N.J., contributed to this report.