The departure of Justice Kennedy and the seating of Justice Kavanaugh has eliminated the last swing vote on the US Supreme Court. The need for a swing vote is not unlike the need for at least one branch of government to be in the hands of the opposition party; it creates a check on the partisan instincts of the majority.
Many conservatives are delighted that Justice Kavanaugh is now seated, and, in fact, that Justice Kennedy has departed, because for the first time in many years they have a solid Conservative voting bloc. Please note that I did not describe it as a Republican voting bloc, but as a Conservative voting bloc. The political spectrum in the United States traditionally had the far left; the Democratic Party, Moderates (swing votes); Republicans; and the far right which we now call Conservatives.
The voting history of Justice Kennedy reflected over his many years of service, a true swing voter. A few examples of his “liberal” votes: He voted with the majority to allow Guantanamo prisoners to petition the US courts; Agreed that greenhouses could be regulated, writing the majority opinion legalizing gay marriage.
And on the Conservative spectrum he voted with the majority in Citizens United, was tough on crime limiting constitutional restrictions on the police, was a strong 2nd Amendment advocate, voting against gun control; and opposed affirmative action.
Justice Kennedy’s decision to support Judge Kavanaugh was truly a surprise given his status as a swing vote and something of a moderating influence on the Court. It is clear that Judge Kavanaugh based upon his work for Ken Starr, as he described it, and his opinions as a Circuit Court Judge defines him clearly as a partisan, a far-right Conservative. This is not the description for the replacement for Justice Kennedy that I would have written.
To whom do we look at on the Court to be that swing vote? It is fairly clear that there are four members of the liberal voting bloc, and four members of the conservative voting bloc. The only potential for a Justice to become a swing vote, rests with Chief Justice Roberts.
Chief Justice Roberts’ voting history is clearly one with a conservative bent, with some notable exceptions. He voted against legalizing gay marriage, to weaken federal laws against racial bias in housing, to support Republicans in their challenge of the Arizona’s independent panel for the drawing of election districts, to block President Obama’s clean air rules, and that litany could go on and on. He did provide one surprise when he voted to uphold the Affordable Care Act based upon his analysis that Congress had the authority to enact this legislation based upon its right to impose and collect taxes. He does not attend the Federalist’s Society’s meetings as have the ultra-conservative Justices Scalia, Thomas and Alito. Why would one think that Chief Justice Roberts might develop into the swing vote? The answer is actually quite simple. He is very concerned with his legacy on the Court, and is equally concerned about the growing public perception that the Court has become political and hyper-partisan, and even the choice of words to refer to members of the Court as a voting bloc has a politically partisan inference to it. Justice Roberts supported this hypothesis in his speech at the University of Minnesota during the week of October 15, 2018.
The Court historically has moved, as has the country, back and forth between more liberal and more conservative periods. The one thing that has been a constant, and that is the vast majority of the decisions of the Court, if not an overwhelming majority, have held to the principal of “settled law”. If this conservative court begins to reverse divisions like Roe v. Wade, gay marriage, and the ACA, then they will simply be setting the terms of a new polemic which will then allow a liberal majority in the future to reverse those decisions. The stability of the law and the public’s ability to rely on that process is one of extreme importance at many, many levels. From a personal perspective, I did not like the Citizen’s United decision, but did approve of the gay marriage decision. I accepted Justice Kennedy’s capacity and integrity to be the swing vote.
One cannot deny that all judges come to the bench with certain prejudices, background, education and experience. It is a good Justice who is able to restrain his or her inclination to impose his or her philosophy and/or beliefs on others. Justice Kavanaugh lacks these qualifications.
Let us hope we find a swing vote.
Mr. Owens is a former member of Congress representing the New York 21st, a partner in Stafford Owens in Plattsburgh, NY and a Senior Advisor to Dentons to Washington, DC.
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