Trump Picked Kavanaugh. How Will He Change the Supreme Court?

This article first appeared in Politico Magazine on July 10, 2018.

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.

Professor Michael W. McConnell

Abortion is not in danger. Roe v. Wade is an intellectual mess and the practice of abortion is anything but “safe, legal and rare,” as President Bill Clinton wanted it to be. But the Supreme Court as an institution is slow to change and extremely slow to admit its mistakes. I may be a poor vote-counter, but it is hard for me to count five votes for overruling Roe. At most, the Court will continue the path of the past two decades of permitting reasonable regulation but protecting the core of the right to an abortion. And even if I am wrong about that, remember that a reversal of Roe means nothing more than a return to the democratic process. If abortion is as valued as right at Democratic activists claim that it is, there is no need to protect it from the voters. Moreover, technology is quickly making abortion almost impossible to prohibit.

Same-sex marriage is in even less danger. Again, Obergefell was not the best-reasoned of decisions, but there is zero appetite on the right to reverse it. At most, individuals and religious groups opposed to the practice will be protected from being coerced to lend their support or approval. That should have been the law all along.

Citizens United is probably here to stay. But this is not because of replacing Kennedy with Kavanaugh. Kennedy wrote Citizens United.

Moreover, it is nonsense to claim the Kavanaugh appointment will “shift the ideology of the Supreme Court for decades to come.” It shifts one seat. If Justice Clarence Thomas were to leave the bench – heaven forfend – under Trump’s replacement as president, we could easily see the most liberal Court since the days of Lyndon Johnson.

The balance of the Court is never set in stone. Over the past two terms, Justices Stephen Breyer and Elena Kagan have more frequently broken from their more leftward colleagues to forge a more moderate path, often in conjunction with Chief Justice John Roberts. Temperamentally and jurisprudentially, Kavanaugh is more like to be part of this invigorated middle than to swing toward the extremes. It would be a good thing for the country if the Court moved in a less polarized direction.

Like generals fighting the last war, Supreme Court nomination activists make the mistake of looking backward. Kavanaugh will likely serve on the Court for 20 or 30 years. The big issues of the Kavanaugh Court will not be abortion or same-sex marriage, but the difficult issues of liberty and democracy raised by the administrative state. These questions will not break down on right-left lines. Nor is criminal justice the partisan issue it was back in Nixon’s day. Kavanaugh has almost no record on criminal justice issues, because his court has very little criminal jurisdiction, but as the late Justice Antonin Scalia showed, textualist conservative justices are often the friends of due process protections for criminal defendants.

Liberal activist groups are not likely to love any Republican nominee, but they should be happy to have a nominee who sticks to the law and values judicial restraint rather than one who might pursue a substantive agenda not disciplined by text, history and precedent. They could do a lot worse than Brett Kavanaugh.

Liberals should do the un-anti-Trumpiam thing: oppose the nominee if they must, but keep calm, stay civil and talk about the law.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution.