The US Supreme Court: 'The sky is always said to be falling, and it never falls' - Michael McConnell, Stanford Law School © John Greim
Experimental feature

Listen to this article

00:00
00:00
Experimental feature

Ideology, partisan politics and the #MeToo movement collided during the bruising US Supreme Court confirmation hearings for Brett Kavanaugh. Now that he has taken his place on the bench, Americans are watching for signs of how Justice Kavanaugh’s appointment will change the court — and wondering how long-term and far-reaching that change might be.

The clear loser in September’s hearings was the confirmation process itself, with nominations becoming fraught partisan battles. Concern over Justice Kavanaugh’s suitability for the post — he was accused of sexual assault by Christine Blasey Ford while they were teenagers, an allegation Justice Kavanaugh denies — resulted in a deafening political fight over the future of the court. US President Donald Trump accused Democrats of a “search and destroy” mission against his nominee.

Alan Morrison, associate dean at the George Washington University Law School, says the episode was “at least as controversial as the Clarence Thomas hearings”. Justice Thomas — now the longest-serving Supreme Court justice — was accused of workplace sexual harassment by law professor Anita Hill during his 1991 confirmation process. Justice Thomas denies the allegations. But, Prof Morrison adds, the court “managed to go on and get its work done [following Justice Thomas’s appointment] . . . as a working institution — though the perception of the court as a non-political institution is certainly being challenged”.

John Roberts, chief justice of the Supreme Court, is clearly aware of the threat posed to the judiciary as a whole if it is seen to be politicised. After Mr Trump complained last month that a federal judge who had ruled against his asylum policy was “an Obama judge”, Justice Roberts issued a rare rebuke. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he wrote in a statement.

“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

The longer-term question is whether the Supreme Court can maintain its reputation as an institution free of partisanship. Mr Trump has already had the opportunity to replace the court’s retired swing vote, Justice Anthony Kennedy, and may gain the chance to appoint two more to the bench: the court’s oldest sitting justices are also two of its most liberal: Justice Ruth Bader Ginsburg, 85, and Justice Stephen Breyer, 80.

This is not simply about the prospect of further pitched battles over the confirmation process. Candidates to the Supreme Court serve for life. For those who fear Mr Trump is seeking to give his support base the Supreme Court of their dreams, this raises the spectre of a deeply conservative court for decades to come.

At stake, say the president’s opponents, is the status of landmark cases that have divided Americans, such as Roe v Wade, which ruled state laws restricting abortions were unconstitutional, or Obergefell v Hodges, which required the states to license and recognise gay marriage.

But Michael McConnell, director of the constitutional law centre at Stanford Law School and a former circuit judge, says the impact of Justice Kavanaugh’s addition to the court was likely to be far less dramatic than many anticipated.

“It is unlikely that the addition of an establishment-oriented centre-right jurist like Brett Kavanaugh to the court will bring about dramatic shifts in American law,” he says. Justice Kavanaugh’s libertarian instincts would probably put him to the right of Justice Kennedy on some issues, such as bureaucratic accountability, but to the left on others, such as criminal law.

Similar predictions of a conservative onslaught have been made before — when Justice Samuel Alito replaced Justice Sandra Day O’Connor, or Justice David Souter followed Justice William Brennan — and proved unfounded. “I doubt very much the court will overrule Roe v Wade or Obergefell, or do many of the other things that Kavanaugh’s partisan detractors are predicting,” Mr McConnell adds.

The American Bar Association called on the Senate Judiciary Committee to delay its vote on Justice Kavanaugh’s candidacy in light of the sexual assault allegations. But when the Senate disregarded this request, the ABA dropped its review, and returned to its initial opinion that Justice Kavanaugh was “well qualified” — its highest level of endorsement.

Robert Carlson, the association’s president, has since been quick to reassert his confidence in the court. “American democracy depends on the independence and impartiality of its judges,” he told the FT. “[The judges’] decisions are based on their views and interpretations — the court is not political or partisan.”

Of the furore over the future of the Supreme Court, Mr McConnell had this to say: “The sky is always said to be falling, and it never falls.”

Get alerts on Law when a new story is published

Copyright The Financial Times Limited 2019. All rights reserved.

Follow the topics in this article