Earlier in June, Supreme Court Justice Kennedy announced that he would be stepping down from the bench. Here, SLS faculty weigh in on his retirement and President Trump’s nominee to replace him, Judge Kavanaugh.

Trump Picked Kavanaugh. How Will He Change the Supreme Court? by Professor Michael McConnell

President Trump did the least Trump-like thing. He chose a solid, broadly respected, experienced jurist to replace Justice Anthony Kennedy on the Supreme Court: Brent Kavanaugh, a 12-year veteran of the second most important court in the land. Trump avoided the temptation to spit in the eye of the establishment or throw red meat to his base. (The right-wing base, indeed, has been grumbling that Kavanaugh is not exciting and radical enough.)

That does not mean the Democratic opposition will refrain from hyperventilating. For some reason, when Democratic presidents place liberal Democratic justices on the Court, Republicans remain calm. They may oppose. They may even oppose when they should not. But the four horses of the apocalypse are kept in the barn, out of sight. The nominees even get a substantial number of Republican votes. Merrick Garland aside, Obama’s two nominees both got 67 votes. But when Republican presidents nominate conservative justices no less qualified, sane, and moderate, the left throws a fit. It matters not who the nominee is.

Please, my liberal friends, calm down. Read more »

Judge Kavanaugh, Dissenter in Chief by Professor Bernadette Meyler

Judge Kavanaugh begs to differ. Or at least so it seems from the many cases in which he has dissented on the D.C. Circuit. These include a number of decisions issued by the entirety of the D.C. Circuit sitting en banc or denials of rehearing en banc. Hearings en banc are designed to reevaluate the determination of a panel of the court and are used on some circuits only in cases of outlier decisions. Kavanaugh, however, has dissented from the denial of rehearing of many, many cases in the D.C. Circuit.

Why should this dissenting character matter? First, it indicates just how conservative Kavanaugh is. The D.C. Circuit is not known as a particularly liberal court, but the vast majority of Kavanaugh’s dissents point in a more conservative direction than the principal opinions in those cases. Second, it suggests that, despite the fact Kavanaugh clerked for Justice Kennedy, his character as a judge may bear more resemblance to Justices Thomas or Scalia than Gorsuch or Chief Justice Roberts, who tend to push in the direction of consensus rather than insisting as much on the particular principles underlying the outcome. Read more »

Contempt of Court by Professor Richard Thompson Ford

Anthony Kennedy’s retirement from the Supreme Court will allow President Trump to fill the vacancy with someone selected from a list of hardline conservatives hand-picked by the Federalist Society and ensure a reliable five votes for conservative causes for decades to come. Reproductive freedom guaranteed under Roe v. Wade could be scaled back or eliminated, a right to carry firearms imposed nationwide under an expansive interpretation of the Second Amendment, the right of labor to organize further eroded, and affirmative action declared invalid (as if to underscore this lattermost concern, the Justice Department announced new guidelines urging universities to avoid consideration of race in admissions). Mitch McConnell’s extraordinary gambit in refusing to allow a vot­­e on President Obama’s nomination of Merrick Garland to the Court seems to have paid off. But the very hardball tactics used to move the Court to the right may undercut its most important asset: its popularity and moral authority.

Much of the influence of the Supreme Court—especially with respect to constitutional law—involves the soft power of persuasion. Of course, courts can invalidate legislation and order special remedies, but durable change requires the cooperation of other branches of government and, ultimately, the respect of the people. The Supreme Court is at its most potent when it can tap into and help shape a cultural zeitgeist, clarifying previously inchoate social norms and overcoming inertia in the popular branches of government. But to do this, the Court needs to be in sync with popular opinion while also appearing to be above ordinary politics. When it oversteps or misjudges the popular mood, its opinions meet with effective and sustained resistance. Read more »

SLS Con Law Faculty Discuss Justice Kennedy’s Legacy and Retirement

U.S. Supreme Court Justice Anthony M. Kennedy announced June 27, 2018 that he will retire at the end of July—handing President Trump an opportunity to reshape the Court for generations to come. Here, several Stanford Law School Constitutional Law scholars discuss Justice Kennedy’s legacy and the timing of his retirement. Read more »