Enter Judge Kavanaugh:  Eight Things You Will See From The Righter Roberts Court

Posted on Oct 10, 2018 in Business Litigation

How different will the Supreme Court really be with Brett Kavanaugh as the newest associate justice?  Here is a sneak preview:


  1.  Day-to-day change will not be that drastic:  the majority of decisions handed down by SCOTUS relate to technical, non-political issues decided by easy majorities.  Kavanaugh will not impact those decisions.


  1.  In politically charged cases, there will be a small difference:  for years Justice Anthony Kennedy became the swing vote on behalf of the left on many politically charged cases.  That will no longer be the case as Kavanaugh will clearly move the Court to the right.  Yet, Kavanaugh is not as hard right as Scalia.  While many of his critics fear a hard right conservative, that is simply not the case.  One of the biggest changes is that those 5-4 decisions will swing to the right but Kavanaugh’s judicial leaning is not extreme right.


  1.  SCOTUS may hear more or different matters:  It only takes four justices to agree to hear a case that is petitioned to the SCOTUS.  Thus, Kavanaugh could vote to bring in cases that may never have been heard, especially Second Amendment cases, where Kavanaugh will swing the balance right.
  2. Class Action Litigations will suffer:  Plaintiff shareholder class  action attorneys fear of a Roberts Court with Kavanaugh, as the Court will now firmly be conservative on the commencement and prosecution of those matters.


  1.  The future of Roe v. Wade – will it really change:  The major political fear has questioned what the SCOTUS will do on Roe v. Wade, the decision that legalized abortion.  The proverbial jury is still out on this issue.  While Kavanaugh testified before the Senate Judiciary Committee that Roe is “settled law,” that does not necessarily mean it cannot be overturned.  Remember, Plessy v. Ferguson, the decision that upheld segregation in the South, was overturned.  Similarly, Bowers v. Hardwick, the decision thatallowed to treat gay sex as a felony, was overturned.  At the time, those decisions were “settled law” until SCOTUS looked at the issues anew.  And even Justice Sonia Sotomayor informed senators, during her confirmation process, that the Second Amendment was settled law after District of Columbia v. Heller, but then she took an anti-Second Amendment side in McDonald v. Chicago the following year.  But, overturning Roe would be a major political shift to the right, which I believe the Court simply will be unwilling to do.  Roe may become a bit more limited, but it will take at least two more pro-life justices on the court before Roe is at risk.


  1. Judicial minimalism will be front and center:  There is no doubt not only that the SCOTUS will closely follow legal precedent, but there will be a turn toward “judicial minimalism,” the idea that the Court will do nothing without bipartisan agreement, which is the opposite of judicial activism.  The legal temperature will promote theories that will minimize the court’s and judicial involvement in societal issues and will restrain to become involved in several issues.


  1.  SCOTUS’s respect: an all-time low:  SCOTUS has been faced with several issues that has hurt its status, reputation and esteem over the last few decades.  Since the New Deal, when it began to stifle progressive legislation, thereby frustrating President Franklin D. Roosevelt’s New Deal, it was considered “nine old men.” More recently, when the Court determined the next President of the United States in Bush v. Gore, it was ridiculed as being political and not judicial.  Since it is widely expected that Kennedy to Kavanaugh is a strong shift to the right, the liberal news outlets and legal academia, will be attacking the Court.


  1. Congressional activism:  Interestingly, the near election becomes even more important than it was before this appointment.  As Chuck Schumer, the Democratic senator from New York, stated, when voting against Kavanaugh, the only way the populace can effect change in the upcoming election is to vote, he was dead on.  If Congress does turn to the left over the next four years, you will see more efforts to solidify left-leaning legislation, thereby somewhat stifling the Court from its conservative decisions.

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