livingston
20×102mm Vulcan
Brett Kavanaugh will bring change to the Supreme Court, but maybe not what you think
With Brett Kavanaugh as the newest associate justice of the Supreme Court, things are going to be different. But how different? Here are a few changes to look for:
►There will be less change than you expect. Most Supreme Court decisions are boring, technical and decided by easy majorities. That will still be true with Kavanaugh on the bench.
►But in the big cases, Anthony Kennedy, who served as a swing vote and often joined the left, will now be replaced by Kavanaugh. Kavanaugh is not as hard right as many of his critics (and some of his boosters) fear or hope. But it’s likely that a number of issues that might have been 5-4 wins for the left will now be 5-4 wins for the right. And because it only takes four justices to agree to hear a case, adding Kavanaugh could bring in cases that might have escaped scrutiny in the past. This seems especially likely with regard to Second Amendment cases, where Kavanaugh is stronger than Kennedy.
►With regard to Roe v. Wade — which is really what this entire, embarrassing circus was about, with all the charges and countercharges just being talking points — it’s hard to say. Kavanaugh told the senators that Roe is “settled law.” That’s true, in a sense. But Plessy v. Ferguson, which upheld segregation, or Bowers v. Hardwick, which allowed states to treat gay sex as a felony, were both settled law until they were overturned. And Justice Sonia Sotomayor told senators that the Second Amendment as an individual right was settled law after District of Columbia v. Heller but then took the anti-Second Amendment side in McDonald v. Chicago the next year. Even so, overturning Roe would be a huge deal, and I don’t think the court has the stomach for it. There may be a bit of chipping around the edges, as in the 1992 case of Planned Parenthood v. Casey, but not much. It will take at least two more pro-life justices on the court before Roe is at risk.
►Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, “Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.” The past half-century’s enthusiasm for judicial activism will vanish,
►There will be less change than you expect. Most Supreme Court decisions are boring, technical and decided by easy majorities. That will still be true with Kavanaugh on the bench.
More at ....
Brett Kavanaugh will bring change to the Supreme Court, but maybe not what you think
With Brett Kavanaugh as the newest associate justice of the Supreme Court, things are going to be different. But how different? Here are a few changes to look for:
►There will be less change than you expect. Most Supreme Court decisions are boring, technical and decided by easy majorities. That will still be true with Kavanaugh on the bench.
►But in the big cases, Anthony Kennedy, who served as a swing vote and often joined the left, will now be replaced by Kavanaugh. Kavanaugh is not as hard right as many of his critics (and some of his boosters) fear or hope. But it’s likely that a number of issues that might have been 5-4 wins for the left will now be 5-4 wins for the right. And because it only takes four justices to agree to hear a case, adding Kavanaugh could bring in cases that might have escaped scrutiny in the past. This seems especially likely with regard to Second Amendment cases, where Kavanaugh is stronger than Kennedy.
►With regard to Roe v. Wade — which is really what this entire, embarrassing circus was about, with all the charges and countercharges just being talking points — it’s hard to say. Kavanaugh told the senators that Roe is “settled law.” That’s true, in a sense. But Plessy v. Ferguson, which upheld segregation, or Bowers v. Hardwick, which allowed states to treat gay sex as a felony, were both settled law until they were overturned. And Justice Sonia Sotomayor told senators that the Second Amendment as an individual right was settled law after District of Columbia v. Heller but then took the anti-Second Amendment side in McDonald v. Chicago the next year. Even so, overturning Roe would be a huge deal, and I don’t think the court has the stomach for it. There may be a bit of chipping around the edges, as in the 1992 case of Planned Parenthood v. Casey, but not much. It will take at least two more pro-life justices on the court before Roe is at risk.
►Strange new respect for judicial minimalism. As Harvard Law professor Adrian Vermeule remarked, “Law review editors: brace for a tidal wave of legal academic theories supporting judicial minimalism, Thayerianism, and strong — very strong — theories of precedent. Above all: the Court must do nothing without bipartisan agreement, otherwise it is illegitimate.” The past half-century’s enthusiasm for judicial activism will vanish,
►There will be less change than you expect. Most Supreme Court decisions are boring, technical and decided by easy majorities. That will still be true with Kavanaugh on the bench.
More at ....
Brett Kavanaugh will bring change to the Supreme Court, but maybe not what you think
