9 law experts on what Brett Kavanaugh means for the future of America
Brett Kavanaugh is more of a centrist than his critics say, said Sen. Susan Collins of the newest Supreme Court justice.
Collins, oft-described as a moderate Republican herself, said she believed Kavanaugh would prevail as a voice of reason, and that he would not overturn Roe v. Wade.
We asked legal experts to respond to this with short essays. Nine responded.
“The federal judiciary will increasingly be the place where the rich and powerful go to protect their wealth and power.”
By Rachel Lazarus
Director of the Gwinnett Pro Bono Project in Atlanta
For nearly 75 years, minority groups could find an ally in the federal courts, from district courts to the Supreme Court.
Black homebuyers stood up to restrictive covenants (Shelley v Kramer, 1948); black students asserted their rights against segregated schools (Brown v Board of Education of Topeka, 1954); and mixed-race couples fought for their relationships (Loving v Virginia, 1967).
In addition to guaranteeing the right to birth control, women in the 1970s successfully challenged unequal housing allowances for women service members, forced maternity leave after the first trimester, and unequal Social Security survivor benefits for women.
In 1996, the LGBTQ community successfully challenged a law designed to prevent protections and enshrine discrimination, leading the way to Lawrence v Texas (2003, overturning state sodomy laws); US v Windsor (2013, overturning the federal Defense of Marriage Act) and finally Obergefell v Hodges (2015, striking down laws prohibiting same-sex couples from getting married).
It wasn’t always perfect, but the decisions of the court mostly marched in the direction of more rights, more minority protections, and less majoritarian rule.
That will not be the role of federal courts over the next few decades. No longer will they be viewed as the place where minorities can come for redress. No longer will they be viewed as the body forcing the majority to respect the rights and wishes of minority groups. Instead, the federal judiciary will increasingly be the place where the rich and powerful go to protect their wealth and power.
During the last session, the conservative justices overwhelmingly ruled in favor of corporations, moneyed interests, and Christian supremacy. They struck down mandatory union fees (Janus v. AFSCME), a move likely to weaken the powers of unions and collective bargaining. They sided with American Express against an Ohio law meant to make the cash purchasing power of the poor more equal with the credit card purchasing power of the wealthy (Ohio v. American Express).
They showed grave concern over the perception of bias against a Christian baker, but not over the administration’s animosity against Muslims.
Those justices are getting a staunch ally in the newest justice. Before his contentious confirmation, Justice Kavanaugh authored decisions and dissents arguing against the power of the Consumer Financial Protection Bureau, and against the right of the EPA to regulate toxic mercury or curb air pollution. He believes courts should decide on the Constitutionality of regulations, rather than deferring to the agencies making them, which would allow conservative judges to overturn administrative regulations regarding minimum wages, worker protections and healthcare.
Kavanaugh sought to restrict the rights of minors being held by the federal government, and wrote that employers can require employees to give up their right to picket. He previously commented that school vouchers would be upheld as constitutional, and he has praised former Chief Justice William Rehnquist's efforts to reverse precedent and break down the “strict wall of separation between church and state."
I believe that as demographics in the U.S. change, the new generation will start to lean left.
It’s demographically inevitable. For those who seek that kind of change, they must keep a close watch on the judges and justices appointed for life to the federal bench. They were appointed to maintain power in the rich and connected, in people who look and think like they do, and they will work hard to do so.
“I worry about his role in the growing mismatch between popular will and governmental control.”
By Andrew Siegel
Associate professor of law at Seattle University School of Law. Siegal was a clerk to former U.S. Supreme Court Justice John Paul Stevens.
The Supreme Court’s legitimacy, and ultimately its power, depends on the belief that it is impartially evaluating crucial questions about the meaning of liberty, equality, and fairness. Over the next decade, that belief will be under more challenge than it has been for at least 80 years.
Justice Kavanaugh’s elevation cements a majority for a vision on these issues that has been rejected by the voters in six of the last seven presidential elections. He joins a Court that has actively worked to dismantle the mechanisms that ensure electoral accountability. And he does so after a confirmation that lays bare his self-conception as a partisan and his selective commitment to precedent on questions of fundamental rights and equality.
I worry a great deal about the substantive impact of his vote on constitutional questions related to minority rights, individual autonomy, civic equality, and on statutory questions related to voting rights and access to the courts. But I worry even more about his impact on the Court as an institution and his role in the growing mismatch between popular will and governmental control.
“It could very well get worse before it gets better.”
By Meagan Hatcher-Mays
Counsel, Demand Justice
I believe the Supreme Court will return to a dark time in our legal historical past.
It wasn’t always the case that the Court recognized Congress’s authority to, for example, prohibit child labor or set a minimum wage. Progressives are right to fear that a new arch-conservative majority would overturn Roe, making abortion illegal or nearly impossible, attack LGBT equality, but what keeps me up at night is the conservative justices’ hostility to the legislative branch’s ability to pass social safety net laws and economic regulations.
My fear is that even if there’s a big blue wave in 2018 and 2020, the Court would act as a check on the popular will, striking down Medicare For All, or a $15 an hour minimum wage, or gun safety laws, or climate policy. There is no remedy to right-wing judicial activism that’s easily attainable, at least not in my lifetime.
There’s no immediate or easy remedy to this kind of right-wing judicial activism, so we need to be prepared to fight this for years to come. It could very well get worse before it gets better.
“With Kavanaugh’s recent display, the people have the right to question whether cases will be decided by the partisan views of individual members of the Court.”
By Jason A. Gillmer
Hemmingson Chair in Civil Liberties and Professor of Law at Gonzaga University School of Law. The opinions expressed are those of the author and are not necessarily the views of Gonzaga University.
With the confirmation of Brett Kavanaugh, the Supreme Court finds itself in a perilous position. The Court has seen its legitimacy questioned before, most recently in 2000 following the infamous Bush v. Gore decision, in which five Republican-appointed justices decided that the Republican nominee, George W. Bush, should become the next president.
But somehow the confirmation of Kavanaugh feels different. In 2000, none of the justices engaged in openly partisan attacks on the other party; none of them wrote op-eds or went on cable news to justify their position. Even in the contentious era of Brown v. Board, when the Court inserted itself into the affairs of the states, the Court did not engage in the type of partisan and intemperate conduct exhibited by Kavanaugh. To the contrary, the Court spoke with a unanimous voice, rising above the fray to strike down the pitiful era of Jim Crow.
To find anything close to the legitimacy crisis facing the Court today, we might look back to 1857, when the Court declared in Dred Scott that persons of African descent were not U.S. citizens and that Congress lacked authority to regulate slavery in the territories. The decision caused a constitutional crisis, with many people seeing it for what it was—an effort by the slaveocracy to assert its will over the rest of the country. With Kavanaugh’s recent display, the people once again have the right to question whether cases will be decided not by the law, but by the partisan views of the individual members of the Court.
“The Court is likely to make it easier for states to impose restrictive voting rules and to engage in gerrymandering.”
By Lisa Manheim
Associate Professor, University of Washington School of Law
On voting rights and other election-related issues, Justice Kavanaugh is likely to join the four more conservative members of the Supreme Court to create a solid majority. In the coming years, the newly constituted Supreme Court is likely to allow states more leeway in some respects, while taking it away in others.
For example, the Court is likely to make it easier for states to impose restrictive voting rules and to engage in gerrymandering. At the same time, the Court is likely to make it harder for states to regulate money in politics.
This shift comes at an important time. In recent years, many states have passed laws making it more difficult to vote. In response, plaintiffs have argued that these restrictions undermine voting-related protections contained in the Constitution as well as laws like the Voting Rights Act. The Supreme Court often splits 5-4 on these sorts of cases. Justice Kavanaugh almost certainly will tip that scale consistently in favor of the states.
Another important set of legal challenges involve gerrymandering. This is the practice of drawing district lines to influence future election outcomes. Lawsuits challenging gerrymandering have befuddled the Supreme Court for decades. Justice Kavanaugh almost certainly will help resolve at least some of this confusion by reaching a straightforward conclusion: Many of these lawsuits simply should be thrown out.
Finally, some plaintiffs have been challenging efforts—both state and federal—to police the flow of money in politics. Some of the challenged laws force donors to disclose their identities, for example, while others limit how much donors can give to candidates. Citing the First Amendment, Justice Kavanaugh likely will conclude that many of these spending restrictions are unconstitutional and therefore cannot be enforced.
“Kavanaugh demonstrated animosity toward women’s rights in areas including reproductive autonomy and employee rights.”
By Mary Pat Treuthart
Professor of Law at Gonzaga University School of Law where she teaches courses in Constitutional Law and Comparative Women’s Rights.
Nearly five decades ago, women’s rights litigators filed multiple cases involving gender discriminatory laws and policies, which ultimately made their way to the U.S. Supreme Court. Appearing before the Court to argue one prominent case, then-lawyer – now-Associate Justice Ruth Bader Ginsburg – took on the role both of advocate and educator. She explained to the nine male justices then serving why sexism in its varied incarnations, including benevolent paternalism, is problematic – and unconstitutional. Because of the persuasive arguments put forth by Ginsburg, many women believed the Court might finally begin to understand the lived reality of women’s experiences.
With the recent confirmation of Brett Kavanaugh to the Supreme Court, that hope now seems to be all but dashed. During his tenure as a judge on the U.S. Court of Appeals for the District of Columbia, Kavanaugh adopted positions that demonstrated animosity toward women’s rights in areas including reproductive autonomy and employee rights. Because of his previous stances, Kavanaugh’s appointment makes it unlikely that the Court will maintain the status quo on women’s rights, much less expand those guarantees.
Of course, a shift in Congress could make those legislative bodies more dependable partners regarding women’s rights guarantees. When the Court failed to acknowledge that a state disability insurance scheme without pregnancy coverage was gender-discriminatory, Congress responded by amending Title VII to include the Pregnancy Discrimination Act. More recently, when the Court was unwilling to grant adequate time for a woman employee to file a pay discrimination claim, Congress stepped in and passed the Lily Ledbetter Paycheck Fairness Act.
In “blue” states such as Washington, women can continue to rely on state legislatures and state courts to safeguard their interests and promote their dignity and equality. Furthermore, passage of the federal Equal Rights Amendment could bolster constitutional protection for women’s rights across the board. But a more women-friendly Court would certainly be the best ultimate recourse, and the confirmation of Judge Kavanaugh certainly makes this a more remote possibility.
“Kavanaugh wrote that employers should be free to market experiences that are highly dangerous for workers.”
By Charlotte Garden
Associate professor of law at the Seattle University School of Law and co-associate dean for research and faculty development.
Unions and other worker groups have opposed Judge Kavanaugh’s elevation to the Supreme Court since his nomination was announced, and with good reason: His D.C. Circuit opinions are heavy on deference to employers, and they also tend to read laws intended to protect workers narrowly. Here are just two areas where Kavanaugh is likely to bring that approach to bear in his new role on the Supreme Court:
Decreasing union power: American labor unions have fared poorly before the Supreme Court in recent years. Replacing Justice Kennedy with Kavanagh means this trend will continue. One likely controversy to reach the Court soon: whether it violates the First Amendment for public employers to bargain with a labor union and then apply the resulting agreement to all of the employees in the bargaining unit, including those who oppose the union. Every state that authorizes public sector collective bargaining (including Washington) uses this model, so the stakes are enormous.
Decreasing workplace protections: Most people would agree that risking your life shouldn’t be a prerequisite for finding gainful employment. But Judge Kavanaugh dissented in SeaWorld of Florida v. Perez, a case about whether the Occupational Safety and Health Administration could require SeaWorld to make changes to its operation and pay a fine after an orca killed a trainer during a public performance. Kavanaugh wrote that employers should be free to market experiences that are highly dangerous for workers, and that workers should be free to participate without interference from “paternalistic” regulators.
In other words, Kavanaugh believes regulators’ roles should be circumscribed in American workplaces – an idea that could have consequences for the ability of federal agencies to robustly enforce laws concerning the minimum wage and overtime, workplace discrimination, and more.
“Justice Kavanaugh’s highly partisan testimony during confirmation could fuel a partisan and disrespectful tone in some lower courts and at the Supreme Court.”
By Elizabeth Porter
Charlies I. Stone Professor of Law at the University of Washington School of Law
As any sports fan will tell you, the rules—and the referee—can have a huge impact on a game’s outcome. So too in lawsuits. In the near future, the Supreme Court is likely to continue its trend toward interpreting procedural rules in a way that favors corporate defendants and disadvantages plaintiffs. Here are two procedural predictions:
Limiting class actions: Recent prominent class actions include suits against Wells Fargo for opening fraudulent bank accounts and then charging customers for those accounts, and against opioid manufacturers for negligently making and marketing highly addictive drugs. The Roberts Court has already made it more difficult for plaintiffs to bring these types of suits by tightening technical requirements. That trend is likely to continue.
The Court will also continue to uphold fine print in contracts that require consumers with complaints against a company to submit to individual arbitration rather than joining a class action in federal court. In theory, arbitration is faster and cheaper than court. But most people don’t have the time or money to pursue arbitration. Without the possibility of a class action, they are simply out of luck.
The Court’s hostility to class claims not only makes it less likely that defrauded consumers will obtain relief; it also removes a significant deterrent to consumer fraud.
Taking a partisan tone: In the U.S. Open final between Serena Williams and Naomi Osaka, the referee made aggressive calls against Williams. Those calls were antagonizing, even if technically correct. Similarly, when overseeing a lawsuit, judges can make calls—within the flexible boundaries of procedural rules—in ways that break more often for one side over the other. Now-Justice Kavanaugh’s highly partisan testimony during confirmation could potentially fuel a partisan and disrespectful tone in some lower courts and at the Supreme Court.
Justice is about judges with open minds presiding over a fair and public process. The Court’s legitimacy depends on it upholding, rather than undermining, these fundamental values.
“Although President Trump has never received a 50 percent or higher approval rating, his legacy will be felt for many, many years.”
By Ann M. Murphy
Professor at Gonzaga University School of Law
Elections have consequences. If Hillary Clinton had won the electoral vote, the Supreme Court would now likely have six justices leaning liberal and three justices leaning conservative. Although she won the popular vote by nearly 2.9 million votes, President Trump won the presidency via the Electoral College, 304 votes to 227. With the swearing in of Justice Kavanaugh, there are five justices who lean conservative and four justices who lean liberal.
Presidents come and go. A president’s term is four years. At the most, a president sits in office for eight years. A member of the Senate is elected for six years, and a member of the House is elected for two years. But U.S. Supreme Court justices well outlast presidents. Justice Thomas has served over 26 years. Justice Ginsburg has served over 25 years, and Justice Breyer has served over 24 years. The most recent appointees, Justices Gorsuch and Kavanaugh, are in their early 50s. The current life expectancy for males is 78 years. The Justices recently appointed may be on the Court for the next 25 years.
Perhaps more time should be spent campaigning for a presidential candidate by the possible effect on the Supreme Court. The focus has been on short-term gain, when the focus should be on long-term gain. Although President Trump has never received a 50 percent or higher approval rating, his legacy will be felt for many, many years. Many voters may have had the short-term in mind when they should have been looking at their long-term interests.