How far will Supreme Court shift? Justices will face early tests on divisive issues
WASHINGTON — The moment conservatives have dreamed about for decades has arrived with Brett Kavanaugh joining the Supreme Court. But with it comes the shadow of a bitter confirmation fight that is likely to hang over the court as it takes on divisive issues, especially those dealing with politics and women’s rights.
With Kavanaugh taking the place of the more moderate Anthony Kennedy, conservatives should have a working majority of five justices to restrict abortion rights, limit the use of race in college admissions and rein in federal regulators.
The newly constituted court also might broaden gun rights, further relax campaign finance laws and halt the expansion of the rights of LGBT people, who three years ago won the right to marry nationwide with Kennedy in the majority.
Yet Kavanaugh may have a hard time putting behind him the tumultuous confirmation process, which ended with the Senate voting 50-48 to confirm him Saturday, the narrowest margin of victory for a Supreme Court nominee in 137 years.
“In the public mind, there will always be this dark cloud hanging over the court, even if Kavanaugh is eventually embraced by all his colleagues on the court,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
That cloud stems from allegations of sexual assault and other inappropriate behavior by Kavanaugh while he was in high school and college, along with his politically charged testimony that labeled the look into his past a political hit job by Democrats.
Kavanaugh has forcefully denied any inappropriate behavior with women.
The bitter partisan fight over the confirmation could continue in another form if Democrats take control of the House after the November elections. Key House Democrats have said they would investigate Kavanaugh.
In the meantime, the focus will be on the court’s new majority’s willingness to take on controversial issues.
A potential early test is two cases involving state efforts to strip public money from Planned Parenthood. The justices are considering appeals from Kansas and Louisiana. Lower courts have blocked the states from going forward. The court could announce Tuesday that it has rejected the appeals, if the justices voted that way in their private conference Friday. But they also could defer action to allow Kavanaugh to weigh in.
It is far from certain that the court will move precipitously on this or any high-profile issue.
“It’s not going to be lost on anyone on the court that everybody is going to be watching the new court to see which issues they engage in,” said Paul Clement, solicitor general under President George W. Bush.
The justices could look for cases that are more likely to produce consensus, including those about privacy protections in the digital age, Clement said.
Some contentious issues, though, will be harder to avoid because federal law compels the court’s involvement. In coming months, the issue of drawing political districts for partisan advantage will return to the court in a case from North Carolina. Last term, the justices failed to set limits on the practice known as partisan gerrymandering in cases from Maryland and Wisconsin. Kennedy was seen as the conservative justice most likely to side with liberals on the issue. His retirement dimmed the hopes of proponents of such limits.
New state restrictions on abortion could make their way to the Supreme Court soon, along with challenges to the Affordable Care Act and protection from deportation for young immigrants.
The leader of an anti-abortion group that supported Kavanaugh foreshadowed the fight to come in a statement issued just after the confirmation vote.
“Judge Kavanaugh’s distinguished judicial career has been built upon his constitutionalist approach to law, and we trust that this will serve all Americans well when Roe v. Wade inevitably comes before the Supreme Court for review,” said Catherine Glenn Foster, president of Americans United for Life, referring to the court’s landmark 1973 abortion rights ruling.
Kavanaugh’s arrival on the court after the most tumultuous confirmation battle since Clarence Thomas faced allegations of sexual harassment by Anita Hill in 1991 hardens the alignment of party and ideology: five conservatives appointed by Republican presidents and four liberals by Democrats. That was true with Kennedy on the bench, but he voted with the liberals in cases that preserved abortion rights and affirmative action, expanded LGBT rights and limited capital punishment.
Two of those liberal justices, speaking Friday at Princeton University, talked about the court’s legitimacy, without mentioning their new colleague.
“Every single one of us needs to realize how precious the court’s legitimacy is. You know we don’t have an army. We don’t have any money. The only way we can get people to do what we think they should do is because people respect us,” Justice Elena Kagan said.
Justice Sonia Sotomayor said the nine justices recognize the small world they inhabit, suggesting that the tense atmosphere surrounding Kavanaugh’s nomination is unlikely to be replicated on the court.