Current Affairs

Actually, Brett Kavanaugh won’t have the impact we think he will

A new Supreme Court justice won’t make a supreme difference, argues our man in America

Once every few years, a Supreme Court justice decides to step down or stop breathing, and the American political theatre is enlivened with the confirmation process of a fresh justice. One party attacks, the other defends. The event provokes a lot of hype, but in reality merely affirms the status quo.

These days, however, Democrats are frothing because President Trump named Brett Kavanaugh to succeed the retiring Anthony Kennedy. For three decades, the donnish Kennedy took a prima donna-esque delight in being the swing vote on the court, defending individual liberties and corporate prerogatives with equal pleasure that he was pissing somebody off.

Which no one would have seen coming when he was appointed by President Reagan in 1988. Republicans thought Kennedy would be the magical Fifth Justice who would roll back Roe v. Wade, the decision that said women had a constitutional right to have an abortion. Instead, when given that opportunity, he affirmed that right.

Will Kavanaugh better serve his sponsors? What Democrats fear is that he will join the Court’s four other Republican appointees to form an invincible conservative block that will validate the entire radical Republican fantasy agenda. Attack unions! Restrict immigration! Role back LGBTQ rights and women’s rights and minorities’ rights. Most importantly, overturn Roe v. Wade.

No government can retain power by flouting the will of the people

That’s not likely to happen. The reason has nothing to do with Kavanaugh, and everything to do with John Roberts, the Chief Justice with the Tom Hanks grin. With the departure of Kennedy, the swing supreme, Roberts will become the court’s most important justice.

Unlike the late Justice Scalia, Roberts is not an exponent of a school of constitutional thought. What he cares about is his status as Chief Justice, the head of an equal branch of government. Nothing would horrify him more than for the Court to be regarded as a rubber stamp for the Republican wild men in the other two branches of government.

And then consider that a dramatic overturn of Roe doesn’t dramatically change the abortion status quo. Right now, women across the country possess a fundamental right to choose. But states have a lot of authority to regulate health care, and so many red states limit access to that right that makes it hard to exercise. If Roe were reversed, women would lose the fundamental right, but in half the states, the procedure is already or would become legal, so change would be marginal.

Justices don’t usually stray outside public opinion

There is a second reason to think that Roberts would uphold Roe: politics. There’s a famous aphorism: ‘The Supreme Court follows the election returns’. Justices don’t usually stray outside public opinion. They have no troops to enforce their decisions; they are obeyed because we all agree to obey.

We are living in a weird bubble in the history of our republic. All three branches are nominally controlled by one party – but it is a minority party. That bubble will burst in November.

Two thirds of voters favour some form of abortion rights. Three fifths support marriage equality. Nearly three in 10 support strong or moderate restrictions of rearms. Fifty-six percent want the government to provide health care insurance. No government can long retain power by flouting the will of the people.

The Supreme Court follows the election returns. So relax – this is not the issue where change is coming.

Jamie Malanowski is a former senior editor of US Esquire