Rightward groups eye high court battles
With Kavanaugh, conservatives flex clout
WASHINGTON – Conservative groups wield influence at the White House and in Congress. Now they have their sights set on the Supreme Court.
This month’s confirmation of Associate Justice Brett Kavanaugh has given the conservative legal movement confidence that the court will move in its direction on issues from vast government regulations to individual property rights.
While the court’s reinvigorated majority may be cautious about moving too fast on hot-button issues such as abortion, affirmative action and gun rights, the justices are more likely to flex their muscles in more obscure but consequential areas of law.
Kavanaugh’s replacement of the more moderate Anthony Kennedy, who retired in July, represents the biggest ideological shift on the court since 2006, when Associate Justice Samuel Alito succeeded another swing vote, Sandra Day O’Connor. Conservative groups that could not count on Kennedy are more confident Kavanaugh will be on their side.
“Having it be 5-4 is a lot better than 4-4,” says Richard Samp, chief counsel at the Washington Legal Foundation, which litigates for individual rights and free enterprise.
It takes four of the nine justices to agree to hear a case and five to win it. In recent years, justices on both the right and left have declined to hear some cases because they were uncertain about Kennedy’s vote.
Nevertheless, conservatives enjoyed
a nearly unbroken string of victories last term, even with Kennedy holding the swing vote. And so far this term, many of the cases granted represent conservative challenges to perceived government intrusion.
Generational shift
Now that Kavanaugh is on the court, those challenges are likely to increase – not only because of an ideological shift but a generational one. Kavanaugh, 53, and Associate Justice Neil Gorsuch, 51, who joined the court last year, replaced justices three decades older who were more deferential to government agencies.
“I think what you’ll probably see coming up are attempts to move those fences,” says Bill Maurer, managing attorney at the Institute for Justice, which represents clients seeking economic and property rights, educational choice and other causes.
A major priority of the conservative legal movement is to cut back on federal agencies’ powers as part of a return to a traditional separation of powers between the executive, legislative and judicial branches.
In that regard, they have a friend in Kavanaugh, whose decade-old dissent in a federal appeals court case helped lead the Supreme Court in 2010 to restore congressional and executive branch authority over independent agencies.
“The doctrine could potentially move in a direction that articulates the separation between the branches,” which has “sort of blurred over the last few decades,” says Ryan Radia, regulatory counsel at the Competitive Enterprise Institute.
Protecting private property owners is a major priority for legal conservatives. Kennedy wasn’t always on their side, as was the case last year when the court ruled 5-3 that owners of a Wisconsin lake cottage were not entitled to compensation when regulations barred them from selling an adjacent lot.
“If the government takes action that deprives the owner of most of the value of his property, it’s only appropriate that the government pays for that regulation,” Samp says.
‘We’ll get to the stars’
The Pacific Legal Foundation, which specializes in property rights cases, is taking aim at federal wetlands protection laws and regulations.
“It is devilishly difficult to determine what is and what is not a wetland,” says James Burling, the group’s vice president for litigation.
Another issue headed back to the high court is religious liberty, a priority of the Becket Fund, which last month asked the justices to overturn a lower court ruling that barred the use of historic preservation funds to restore houses of worship.
High-profile issues such as abortion and affirmative action also will head back to the court, though perhaps not right away. More than a dozen abortion cases are pending in federal circuit courts. Harvard University’s affirmative action policies are on trial in Massachusetts in a case that’s expected to reach the Supreme Court eventually.
As more challenges from conservatives are granted, the opposite may be true for liberal groups seeking to reverse lower court decisions. Kent Scheidegger, legal director at the conservative Criminal Justice Legal Foundation, predicts the justices will accept fewer cases that could reduce sentences for juvenile offenders or protect prisoners from the death penalty.
For all their optimism, conservative groups don’t expect that Kavanaugh will usher in a sea change. It took Alito a decade to win a 5-4 ruling in June that barred public employee unions from collecting fees from nonmembers.
“Traditionally over the years, the court has been cautious,” Burling says. “Our strategy is not to ask for the sun and the moon and the stars and get nothing. We’d rather start with the moon, and then eventually we’ll get to the stars.”
A priority of the conserva
tive legal movement is to ...
return to a traditional sep
aration of powers.