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Kavanaugh in the Court

| Monday, September 16, 2019

Fourteen months ago, President Donald Trump nominated then-Judge Brett Kavanaugh to the Supreme Court, pending Senate confirmation. One year ago today, Dr. Christine Blasey Ford came forward with sexual assault allegations against Kavanaugh. Those accusations sparked an intense national debate surrounding a nomination already widely expected to change the trajectory of the federal judiciary. Around the globe, the nation and our campus, people heavily debated the salience of decades-old allegations, the responsibility of those in power to combat institutionalized power dynamics and the requirements of character expected for lifetime appointments to the federal judiciary.

As everyone who was embroiled in this controversy knows, Judge Kavanaugh became Justice Kavanaugh on Oct. 6, 2018. Since then, he has participated in over sixty argued cases at the Supreme Court, on top of controversial decisions surrounding the Trump administration, the death penalty, abortion and other issues which have arisen outside of the usual argument-decision framework. (These come up more often these days because the administration commonly bypasses the usual procedure.) However, I want to focus on the cases which do follow the usual pattern: a certiorari grant, oral argument, months of deliberation and writing and the release of one or more opinions.

What role does Justice Kavanaugh play amongst his peers? Is he the ultra-conservative that many on the left fear him to be? Is he too close with Chief Justice John Roberts, who many on the right fear to be a ‘secret liberal’ due to his votes on the Affordable Care Act?

Obviously, the answer is more nuanced. I believe the addition of Justice Kavanaugh shifts the balance of the Court ‘to the right’, but I also believe the consequences of that shift are not as drastic as many might imagine. This qualification is due to both the way ideological differences play out at the Court and the way in which certain Justices’ legal methodologies affect their voting patterns.

The assertion that Kavanaugh brings the Court rightward is largely uncontroversial but is important to demonstrate nonetheless. This can be done perhaps no better than through discussing partisan gerrymandering, a topic which has plagued the Court for years. In the 2004 case Vieth v. Jubelirer, Justice Anthony Kennedy decided not to side with his four fellow ‘conservative’ Justices to declare partisan gerrymandering claims nonjusticiable. Kavanaugh, who replaced Kennedy, provided the fifth vote to do so in last term’s Rucho v. Common Cause. That means claims of unconstitutional partisan gerrymandering will no longer be addressed by the federal government, putting a burden on Congress or state governments to tackle the issue.

However, the Court’s rightward shift does not necessarily mean traditionally ‘conservative’ policy outcomes are the only ones we will see in the coming years. Most of the work the Supreme Court does is technical, dealing with topics and issues which anyone who isn’t a legal scholar won’t recognize. I’m willing to say that the majority of the Court’s work is done on influential cases of which the media will report nearly nothing. These cases are affected by Justice Kavanaugh’s presence on the Court, of course, but usually aren’t strongly affected by the perceived partisan shift that he brought. That shift, too, isn’t so simply ‘towards the right’ — it envelops his own personal legal opinions and methodologies. Each Justice on the Court brings something unique to the deliberation, and Kavanaugh’s impact, while not yet wide in scope, is certainly felt.

Let’s take Apple Inc. v. Pepper as an example. That case was brought about by Apple consumers who wished to sue the company for monopolization based on their control of the App Store. Apple argued that the consumers could not sue because they were not “direct purchasers” of Apple’s product — instead, they simply paid the individual app owners and Apple provided the marketplace. The decision in this case came down to a
5-4 vote, with Justice Kavanaugh voting with the perceived ‘liberal’ Justices and the other four ‘conservatives’ dissenting. Kavanaugh actually wrote the majority opinion for the case, with his fellow Trump nominee Justice Neil Gorsuch penning the dissent.

Even in such cases as these, which have a possible political angle (the ‘large corporation’ v. the ‘little guy’), Justices frequently ‘flip sides’ or vote in unexpected patterns due to personal reasoning.

All of this is not to say that partisan interests never appear to infect the Court’s activity. Many readers will have heard of the aforementioned partisan gerrymandering decision and the Court’s ruling regarding a citizenship question on the census. Both of those cases came down to one vote, and both were along traditional partisan lines. What I instead intend is to say is that the Supreme Court is not simply a machine for Republican Party political outcomes because of Justice Kavanaugh’s presence. It is a much more complex and interesting institution than that.

Vince Mallett is a junior at Notre Dame majoring in philosophy with a minor in constitutional studies. He is proud to hail from Carroll Hall and northern New Jersey. Vince can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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