In a matter of hours, a 53-year-old federal judge with a fully developed conservative view of law and the Constitution will become the 114th Justice to serve on the Supreme Court, with the very real prospect that he will cast a pivotal vote in many major cases, maybe for decades to come.
Brett Michael Kavanaugh is all but certain to win final approval as a Justice by the Senate on Saturday, probably by the closest vote in modern history, after a bitter culture war and partisan skirmish in that chamber. By Friday afternoon, Senate Republican leaders were assured of enough votes to confirm him when the final tally occurs.
He is likely to quickly take the two oaths required for a new Justice, and thus could be on the bench when the Justices next hold a public session on Tuesday. His formal commission, an imposing-looking document signed by President Trump, will be unrolled like a scroll and then read in the courtroom on his first day. With that, he can begin work immediately, even without any time for preparation.
Because he could not do any of his future work until he had cleared the constitutional process in the Senate, he has not had the chance to start studying the cases that he will begin to confront on Tuesday; the first case is a complex dispute over sentences of individuals who have been convicted as “armed career criminals.”
Ready for that case or not, he actually has a duty to join his eight colleagues in deciding it and the other early cases he will hear. Unless a Justice is somehow required to step aside from a case because of some conflict of interest, the job actually does not permit sitting out as a matter of discretion.
Kavanaugh has been a judge on a lower federal appeals court for 12 years, so the basic duties of being an Associate Justice on the nation’s highest appeals court will not be entirely strange to him.
But there will be noticeable differences. Normally, he has been sitting on three-judge appeals court panels, needing to ally with only one other judge to make a majority. He now will be one of nine, needing to gather at least four other allies when the issue is in some dispute. The Supreme Court sits in what is called plenary format – all nine Justices taking part.
Another difference, stark in its meaning, comes from the fact that the federal court system is arranged in a hierarchy, and the court on which Kavanaugh has sat could never be sure that its work would survive review by a higher tribunal, the Supreme Court.
It will be a heady feeling to begin to realize that the Supreme Court is, in fact, supreme because it is final. Its decisions can only be overruled by Congress, if a ruling is an interpretation of a federal law, or by constitutional amendment, if a ruling interprets the nation’s basic document.
What that will mean to a new Justice Kavanaugh is that, for the first time in his judicial career, he will be in a position to actually vote to overturn any of the Court’s prior decisions, if he joins a majority of at least five to do so.
Much of the controversy in the Senate’s review of his nomination (at least when his ideology, rather than accusations of sexual assault, was the focus) was whether he would provide a deciding vote to overrule Roe v. Wade. That, of course, was the 1973 decision first recognizing a woman’s right to end a pregnancy by abortion. Kavanaugh has raised some doubt about his views by praising the dissenting opinion in that case, and recently wrote a controversial ruling limiting abortion access for an undocumented, pregnant teenager being held by immigration authorities.
Another precedent that some of his critics said might be vulnerable is United States v. Nixon, the 1974 decision that led to President Richard Nixon’s resignation by forcing him to turn over audiotapes of White House conversations. The tapes were demanded by a special prosecutor investigating the “Watergate” scandal. Kavanaugh has written that he has doubts about the constitutionality of investigating a president in office.
Still another series of precedents that may be open to reconsideration, because four existing Justices have already criticized them and Judge Kavanaugh has done the same in appeals court cases. Those precedents created the fundamental doctrine that the specialized federal agencies that regulate much of Americans’ personal and business life have wide discretion to act, without strong second-guessing by the courts. A whole host of agencies that have existed since New Deal days could have their powers curtailed if those precedents fall.
And, an issue that the Court has been wrestling with for 32 years – whether to put some constitutional limits on partisan gerrymandering – has returned with four of the present Justices deeply skeptical about imposing such limits, and they might well attract Kavanaugh as a fifth vote.
It is widely assumed, and there is much evidence to support it, that Kavanaugh as a judge has been significantly more conservative on cultural and social issues than the Justice he will be replacing, the newly-retired Anthony M. Kennedy. It is not at all clear that Kavanaugh would be content following a number of historic rulings written by Kennedy for 5-to-4 majorities on the rights of gays and lesbians – including the right to marry – and on the rights of teenagers who commit crimes, including murders.
With the eight other Justices now quite clearly aligned in two blocs, one mostly conservative and the other mostly liberal or progressive, giving a new ninth Justice the crucial deciding vote.
It will take more than the first term of the new Justice to show with real clarity what kind of Justice Kavanaugh is going to be. But there definitely will be hints, probably including some big hints, between now and when the Court finishes the current term late next June.
What most observers who pay attention to the Court will be watching for most closely is whether any other Justice moves to the Court’s ideological center, holding the “swing vote” that Justice Kennedy so often held and cast. Chief Justice John G. Roberts, Jr., himself a notably conservative jurist but one who makes it clear that maintaining the Court’s institutional respect is one of his primary tasks, is considered by many analysts potentially as the next “swing Justice” – if there is to be one.
The angry controversy that surrounded Kavanaugh’s review by the Senate will follow him to the Court, but it probably will not be a factor in his relationships with his eight colleagues. If he does become a controversial figure there, it will be, in the main, over issues of law and the Constitution.
Protesters no doubt will assemble outside the Court on his first day, and maybe on many other days. And some may even get into the courtroom and stage something of a scene. But the Court will at least try to pretend that it is taking no notice of them and will not be influenced by them.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
