AuthorPomerance, Benjamin

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.... Mr. Chairman, I come before the committee with no agenda. I have no platform." --John Roberts, opening statement to the United States Senate Committee on the Judiciary, September 2005. (1) I. INTRODUCTION

In the summer of 2018, the long-awaited news that most liberals dreaded and most conservatives hungered for finally arrived. (2) Justice Anthony Kennedy announced that he would retire at the end of the United States Supreme Court's term, divorcing the Court from the eighty-one-year-old jurist who had spent more than a decade as the most unpredictable voter on the federal judiciary's highest bench. (3) Some commentators rejoiced, while others wept and gnashed their rhetorical teeth. (4) In their eulogizing of Kennedy's career, both sides engaged in wide-ranging hyperbole. (5) Conservative and liberal observers alike acted as if Kennedy had morphed many years ago from a reliable conservative into a flaming liberal. (6) Both camps praised and mourned President Trump's nomination of Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, a man with deep ties to Republican power brokers from Kenneth Starr to Alberto Gonzales to George W. Bush, as a return to conservative rulings after a long period of far-left judicial outcomes. (7)

The reality, of course, was far more nuanced than many of these feverishly partisan outcries indicated. (8) For the bulk of his career--perhaps more often than the conservative commentators who reviled him and the liberal observers who recently lionized him were willing to admit--Kennedy remained a politically conservative voter on an increasingly politically conservative Court, typically joining the likes of Antonin Scalia, Clarence Thomas, and Samuel Alito on such issues as the right to bear firearms, labor issues, voting rights, the extent of executive power, the right to privacy (and lack thereof), the unfettered spending of corporations in political campaigns, the Affordable Care Act (or "Obamacare"), and the degree of authority that law enforcement could lawfully exercise over civilians. (9) He voted to stop the vote recounts in Bush v. Gore, (10) effectively handing the presidency to George W. Bush, and to uphold the Trump administration's travel ban. (11) No one could rationally cast a jurist with such a record as a political liberal, or even a left-leaning centrist. (12)

On the occasions when Kennedy did break with his conservative brethren, however, the impact tended to be seismic. (13) He shocked conservatives who thought that a devout Roman Catholic justice would never permit states to provide abortions, upholding the Court's forever-controversial holding in Roe v. Wade (14) and establishing that states could not impose an "undue burden" on a woman's right to obtain an abortion prior to the viability of the fetus. (15) He joined the Court's liberal wing in limiting the application of the death penalty, holding that capital punishment for the crime of rape, and for individuals who were minors at the time they committed their crimes or had severely limited mental capacities, violated the Eighth Amendment's prohibition against cruel and unusual punishment. (16) After several years of rebuffing affirmative action as a violation of the Equal Protection Clause, he unexpectedly changed course in 2016, authoring the majority opinion in a case holding that the use of race as one of many factors in a state university's admission process was a narrowly tailored method to achieve the compelling state interest in maintaining a diverse student body. (17) Perhaps most notably of all, he cultivated the Court's body of recent caselaw striking down statutes that discriminated against individuals on the basis of their sexual orientation. (18) The Justice, who had previously spent many years working as a professor under the guidance and mentorship of Gordon Schaber, a gay man who served as Dean of the McGeorge School of Law for more than three decades, (19) wrote the controlling opinions in cases that overturned laws criminalizing intimate relations among same-sex partners, invalidated portions of the Defense of Marriage Act that denied marital benefits to legally married same-sex couples, and struck down state statutes that restricted marriage to heterosexuals. (20) With each of these decisions, many conservative commentators recoiled as if they had been shot. (21) Through this brief summation of Kennedy's jurisprudence, one can see this justice for what he truly was: a jurist who generally remained true to the hopes of the Reagan-era conservatives who brought him to federal judicial power but who was unafraid of crossing partisan lines on occasion in challenging and highly publicized decisions. (22) In a time when the Court features perhaps the most politically entrenched battle lines in the institution's history, this was enough to pass for rampant volatility, earning Kennedy the sobriquet of "swing voter" and sending attorneys into an utter frenzy with their attempts to tailor their arguments to match his supposed preferences. (23) With the decisions of virtually every other justice on the Court viewed as a foregone conclusion--four predictable politically liberal votes and four predictable politically conservative votes--Kennedy gained a reputation as the only justice who might actually change his mind after hearing the arguments presented by all parties involved, even though he was still far more likely than not to vote with the Court's conservative wing. (24)

Based on this, one can see that the Court's trajectory may change far less after Kennedy's departure than one might initially expect. For the past several years, conservative justices have comprised a majority of the Court's membership. (25) This will likely not change following the confirmation of Brett Kavanaugh to the Court's bench. (26) The lone large remaining question, then, is how politically conservative this new justice will prove to be--and how the rest of the Court reacts to the newcomer in their midst.

It is the second half of this question that concerns the rest of this article. History offers many examples of Supreme Court justices whose viewpoints shifted in response to the apparent extremism of their colleagues. John Paul Stevens, for instance, joined the Court with the applause of political conservatives who noted that he had opposed affirmative action and voted in favor of the death penalty during his tenure on the United States Court of Appeals for the Seventh Circuit. (27) By the time he retired from the Court in 2010, however, Stevens was widely recognized as the leader of the Court's liberal wing, stating publicly that while he had remained a judicial conservative, he could not join the hard-line positions staked out by the likes of Thomas, Scalia, and former Chief Justice William Rehnquist. (28) Similarly, Republicans declared that New Hampshire conservative, David Souter, was a "home run" nomination to further their ideologies, with the National Organization for Women offering a counter-statement arguing that Souter was "[a]lmost Neanderthal" and that confirming him would end freedom for women in this country. (29) Both sides were shocked when Souter sparred with Scalia and Thomas regarding theories of constitutional interpretation and authored opinions that affirmed Roe v. Wade, argued that the Court lacked the authority to terminate the recount of a presidential election's results in Bush v. Gore, deferred to the legislature about limiting political campaign contributions, and solidified the separation between religion and government. (30) Comparable shifts occurred with Sandra Day O'Connor, nominated by Reagan but unwilling to fully adopt the sweeping rulings of some of her conservative colleagues on the Court; with Harry Blackmun, a Midwestern conservative who eventually grew frustrated with Chief Justice Warren Burger's viewpoints and wound up writing the Court's majority opinion upholding a woman's constitutional right to an abortion; with William Brennan, an Eisenhower nominee who later received Eisenhower's condemnation for persuading more conservative justices to join him in opinions opposing the death penalty and expanding individual liberties; and with many other "surprising" justices. (31)

Given this legacy, it is worth examining whether a similar change in voting behavior appears probable with any of the members of the current Court. If Trump's nominee to the Court fulfills popular expectations of uniformly voting in favor of politically conservative causes, a fellow member of the Court's conservative wing could decide that the Court's right wing has moved too far to the extreme right and break ranks. (32) Perhaps this justice would slide as far into the liberal camp as Brennan and Stevens ultimately moved; perhaps they would depart from their conservative colleagues in more measured ways on only certain categories of cases, akin to the movements of O'Connor and Kennedy. (33) Either result would be viewed by some political conservatives as a judicial disaster and by some political liberals as a victory. (34)

In reviewing the membership of the Court's conservative wing, however, the likelihood for a leftward shift appears to be scant. Certainly, Thomas's intimations about needing to carry on the jurisprudential legacy of Scalia after the latter's death in 2016 do not indicate that the most politically conservative justice on the Court plans to change positions anytime soon. (35) Neil Gorsuch, Scalia's replacement, has provided similar verbal burnt offerings to his predecessor and, with only a couple of exceptions, has voted in lockstep with Thomas since joining the Court. (36) Alito proved to be even more politically conservative than Scalia on certain issues, particularly...

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