An informed look at the new Supreme Court

A recent issue of The Washington Post published an op-ed piece by Neal Devins, Goodrich Professor of Law and Director of the Institute of Bill of Rights Law at the College of William and Mary.

His op-ed piece was co-authored with Lawrence Baum, emeritus professor of political science at Ohio State University.

Devins is known as a preeminent scholar and expert on the Constitution, the Bill of Rights and the Supreme Court. He weighed in on how Judge Brett M. Kavanaugh’s elevation to the Supreme Court would, from now on, shape decision making in that institution.

I asked Devins, in his view, what would be the consequence of replacing Justice Anthony Kennedy, a dependable swing-voter on the court, with Kavanaugh, a certified conservative.

“There are nine justices on the Supreme Court, so what matters most is the view of the justice in the middle,” Devin said in an interview with the Gazette. “Kennedy was that justice, but Kavanaugh will not be; the middle justice now will be Chief Justice Roberts. He is a conservative, but less conservative than the other four Republicans. So the big question is how much more conservative Roberts will be than Kennedy.”

Devins continued, “Kavanaugh may influence the court in more direct ways. Some justices may take steps to preserve the court’s legitimacy because of the debilitating impact of his confirmation. If Kavanaugh himself becomes a bit toxic, the justices may seek to distance themselves from him. On the other hand, some justices may find his legal reasoning persuasive and he may impact court decision-making. This may not happen right away. It may be years from now before he is influential this way.”

Devins had no direct interaction with Roberts, but studied his decision-making and looked at how Chief Justices in general are particularly concerned with the court’s legitimacy.

“Chief Justice Roberts is very sensitive to attacks on the court for being partisan,” Devins said. “Many people think he cast the deciding vote to uphold Obamacare for this reason. He has also spoken about this many times and argued that the court should avoid divisive rulings and find ways to achieve consensus.”

Devins noted that Roberts does not always live by this principle, but at the same time, there are certainly some important cases where Roberts has brokered compromise rulings.

“It is likely that he will be especially sensitive to all this because of the debilitating partisan fight over Kavanaugh,” Devins said.

I asked Devins whether he thought the standing of the Supreme Court suffered serious damage to its reputation.

“Time will tell,” he said. ”A lot will depend on how the court navigates the current minefield. No matter what, the Kavanaugh fight will reinforce the growing perception that the court is partisan. Elections will decide the court’s future direction.”

Devins, whose list of published scholarly papers is a mile-long and has impressive academic credentials, offered a historic perspective on the Kavanaugh confirmation.

“Kavanaugh is the culmination of events that began with the Senate refusal to hold hearings over Obama Supreme Court nominee Merrick Garland. Today, there is increasing party-line voting in Supreme Court confirmations. The partisan divide has widened to the point where it is hard to imagine a Democratic Senate confirming a Republican nominee and vice-versa.

“With respect to the sexual harassment charge, the Kavanaugh case seems unique. Clarence Thomas was accused of harassment, but the fight had as much to do with race as partisan identity; at that time, most justices were confirmed nearly unanimously. Indeed, 10 Democratic Senators voted for Thomas.”

Shatz, is a Williamsburg resident. He is the author of “Reports from a Distant Place,” the compilation of his selected columns. The book is available at Bruton Parish Shop and Amazon.com.

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