Federal Courts and Nominations

Supreme Court in transition: Conservatives ascendant but Roberts, Gorsuch, Kavanaugh prove unpredictable

This was to be the year the Supreme Court took a sharp right turn, risking its legitimacy in the eyes of the American people and becoming a central issue in the 2020 presidential campaign.

But the conservative revolution has yet to materialize. Chief Justice John Roberts has shown he holds the court’s new swing vote, and President Donald Trump’s two highly touted nominees have proven to be unpredictable.

The court’s reputation, battered by last year’s confirmation battle over Associate Justice Brett Kavanaugh, is bruised but not broken. Rather than pigeon-holing themselves on the left and right, the justices’ myriad voting splits more often resemble a Rorschach test.

While many of the 24 Democrats seeking the White House next year are calling for term limits on justices or expanding the size of the court, the proposals are long shots at best and their political potency suspect.

Here are 10 takeaways from the 2018 term that ended Thursday:

Conservatives stalled

The retirement last June of Associate Justice Anthony Kennedy signaled a sea change for the court. No longer would there be a mercurial member of the bench whose vote so often was up for grabs. Instead, there would be five stalwart conservatives.

“It was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead,” Associate Justice Ruth Bader Ginsburg said of Kennedy’s abdication.

But, unlike the 2017 term, when 14 cases were won by conservatives in 5-4 votes, only seven followed that same pattern this term.

“We have not yet seen the major shift that a lot of folks were expecting,” said Stephen Vladeck, a professor at the University of Texas School of Law who follows the court closely.

Roberts in the middle

Kennedy’s departure left Roberts, the court’s chief justice since 2005, as the man in the middle both literally and figuratively.

He has played that role at key times, signing on with the court’s liberals Thursday to block the Trump administration’s plan to add a question on citizenship to the 2020 census, and Wednesday to uphold important powers of the federal bureaucracy. He also helped stall abortion restrictions in Louisiana and the execution of an Alabama murderer who could not remember his crime.

In other cases, Roberts brought Kavanaugh along as his wingman. The two agreed in more than 90% of this term’s cases, a higher level than almost any other twosome.

“Justice Kavanaugh seems to share some of the chief justice’s institutional concerns,” said Amir Ali, Supreme Court and appellate counsel at the MacArthur Justice Center.

Gorsuch v. Kavanaugh

As the term progressed, one trend grew more glaring: Trump’s 2017 and 2018 nominees parted ways more and more.

On Thursday, Kavanaugh and Associate Justice Neil Gorsuch disagreed on the rights of an unconscious drunk driver. On Wednesday, they differed in two of the three cases decided. On Monday, Gorsuch wrote the opinion and Kavanaugh the dissent in a criminal case in which Gorsuch – for the fourth time this term – lined up with the court’s liberals in a 5-4 decision.

“In our constitutional order, a vague law is no law at all,” he opined in striking down a congressional statute. “An extraordinary event in this court,” Kavanaugh responded, that could give thousands of inmates convicted of firearms violations early get-out-of-prison cards.

The differences between Gorsuch and Kavanaugh reveal the 51-year-old Coloradan’s “libertarian streak” versus the 54-year-old Maryland suburbanite “not wanting to rock the boat,” said Ilya Shapiro, editor-in-chief of the Cato Institute’s Supreme Court Review.

Trump’s weakness

The president’s imprimatur loomed large last term, when the conservative wing reversed lower courts and upheld his immigration ban on travelers from five predominantly Muslim countries.

This year, the tables were turned. Despite Trump’s repeated assertions that the high court would give him the fair shake he was repeatedly denied by lower court judges, the Supreme Court blocked the census citizenship question for now, a significant setback.

Roberts also took on Trump when the president blasted “Obama judges” over lower court decisions against him.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a rare rebuke. An independent judiciary, he added, “is something we should all be thankful for.”

Precedents tumbling

Perhaps no word was uttered more by Kavanaugh at his confirmation hearing last year than “precedent.” But continuing a trend begun last year, the court’s conservatives struck down two of its longstanding precedents this term and put others on life support.

Gone: a 1979 decision allowing states to be sued in another state’s courts, as well as a 1985 ruling requiring property owners to contest a government taking in state court before going to federal court.

On the chopping block: a 1997 precedent giving federal agencies deference to interpret their own ambiguous rules, which the court barely upheld Wednesday. Roberts warned that a related precedent, giving agencies deference to interpret laws passed by Congress, may be next.

Liberal justices clearly fear the trend could extend to Roe v. Wade, the high court’s 1973 decision making abortion legal nationwide. Associate Justices Stephen Breyer and Elena Kagan implied as much in their dissents.

“Some of this is positioning about abortion jurisprudence, there’s no question about that,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.

Controversies avoided

The term ended with a major decision blocking federal courts from striking down partisan gerrymandering, but in general the justices sidestepped other contentious issues.

Abortion cases went by the boards, at least until next year. Ditto the president’s effort to end the DACA program for undocumented immigrants brought to the United States as children. And twice the justices refused to hear new cases involving merchants who refuse to serve same-sex weddings.

Roberts, in particular, may have sought to lower the court’s profile after Kavanaugh’s contentious confirmation, and in advance of the 2020 elections.

“Roberts has always played the long game,” said David Gans, a lawyer at the liberal Constitutional Accountability Center. “Sometimes he avoids the questions, but the fact that he avoids them this year doesn’t mean that he avoids them next year or the year after.”

Thomas staying put

Speculation was rampant at times this year that Associate Justice Clarence Thomas, the leader of the court’s conservative wing, might retire at age 71 after 28 years on the bench so Trump could name his successor.

But Thomas made clear on several recent occasions that he isn’t going anywhere. Entering the term’s final days, in fact, he was the most prolific justice with 267 pages of opinions, concurrences and dissents, including a 42-page dissent in a Mississippi racial discrimination case.

“I really don’t have a lot of stress,” Thomas told the Supreme Court Historical Society earlier this month. “I cause stress.”

Liberals stressed

The court’s four liberal justices were not nearly so sanguine. Perhaps foreseeing a lengthy period in the minority, they lashed out with critical dissents, once at 2:30 a.m.

When the term’s first decades-old precedent tumbled in May, Breyer warned that it “can only cause one to wonder which cases the court will overrule next.” When the second chestnut cracked a month later, Kagan quipped: “Well, that didn’t take long.’

Said Ian Gershengorn, former acting solicitor general in the Obama administration: “We see some evidence of the left’s anxiety.”

Ginsburg on the mend

When Kavanaugh emerged, bloodied but unbowed, for his ceremonial investiture in early November, there was a notable absence: Associate Justice Ruth Bader Ginsburg was in George Washington University Hospital after falling in her office the night before.

At 85, the “Notorious RBG” had survived cancer twice, and it turned out she would become a three-timer. During tests for broken ribs, cancerous nodules were discovered on her lung, and she underwent surgery in December.

Ginsburg missed two weeks of oral arguments in January but was back on the bench the next month, and she finished the term with only a routine bout of laryngitis. That was welcome news to liberals, who have spent years measuring the now 86-year-old’s life expectancy against Trump’s time in office.

A Supreme election?

There are several reasons why the court should be an election issue in the presidential race: Senate Majority Leader Mitch McConnell’s refusal to consider President Barack Obama’s nominee served to motivate conservatives in 2016. This time, the actuarial tables for Ginsburg and Breyer, the next oldest justice at 80, should be enough to motivate liberals.

But several interest groups pushing ideas such as 18-year term limits for justices and expanding the size of the court have yet to make a splash. When the court was brought up by moderators at the Democrats’ initial debate Wednesday night, candidates changed the subject to guns and other subjects.

The court’s 2019 term is likely to be remembered as “the calm before the storm,” Vladeck said.

“The conservatives and the liberals were sort of laying down markers and lining up,” he said, “but not really firing shots.”

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