This past Tuesday, the University of Chicago Institute of Politics hosted Law School Professor David A. Strauss for a conversation on Justice Brett Kavanaugh’s confirmation to the US Supreme Court. Strauss began with the disclaimer: “I’m going to be a little bleak.”
Strauss, the former Reagan administration assistant to the US Solicitor General, expressed that the Supreme Court has become “an instrument of partisan warfare.” This, he argued, is primarily a result of Republicans’ refusal to hear President Barack Obama’s appointment to the high court, Judge Merrick Garland of the D.C. Circuit Court of Appeals, after the death of Justice Antonin Scalia in early 2016. By not hearing a qualified and respected judge, Strauss argued, the GOP sent a message of intransigence and partisanship to Democrats. After his election, President Donald Trump, supported by the majority Republican Congress, could virtually confirm any candidate he desired. The subsequent appointment of Judge Neil Gorsuch to fill Scalia’s vacancy solidified Democrats’ perceptions of the Republican commitment to party politics. Gorsuch’s appointment shaped both parties’ attitudes as they entered the Kavanaugh hearings, a process which ended in a 50–48 vote confirming Kavanaugh’s replacement of Justice Anthony Kennedy as the ninth Justice on the Court. With the absence of Kennedy, who was considered to be the Court’s swing vote on many issues, and the introduction of Kavanaugh, the Supreme Court will sway decidedly more conservative than it has since the 1930s.
Kavanaugh will now rule on future cases regarding issues such as abortion, gun control, and immigration. Given the amount of power that Kavanaugh holds, if Strauss could advise the new judge and his colleagues, he would tell them to “go slow!” According to the legal scholar, this maxim would allow the Court to communicate that it seeks to change America’s law only according to the context of individual cases, instead of blanketly siding with conservative parties in hearings. This could lead to the reversal of the Court’s image as a partisan institution.
Strauss commented that while the new justice will effect change, it will happen gradually. However, when questioned as to the future of Roe v. Wade, he seemed confident that the Court would roll back protections afforded by the 1973 decision. The landmark case and the right to abortion, as preserved under the Fourteenth Amendment, could now be diminished by any pro-life case the Supreme Court decides to take on.
In the following question and answer session, one student asked how the Democrats’ treatment of Kavanaugh during the Senate confirmation process will affect his future rulings. Strauss replied that he believes Kavanaugh will hold potentially competing interests in cases related to the Me Too movement: his desire for vengeance could conflict with his responsibility to act judiciously.
Despite his self-professed bleak outlook, Strauss noted that the fate of the Judiciary is ultimately in the hands of the people. Although Kavanaugh holds a lifetime appointment, Americans still possess the ability to elect representatives that will affect the composition of future Supreme Courts. Thus the Court is still within their control; as Strauss said, “It always is. It always has been.”