Experts: It took decades for GOP to shape court

WASHINGTON — The Brett Kavanaugh court will be the one conservatives have worked for decades to construct, experts say, with velocity the only question about the Supreme Court’s advance to the right.

Expect re-energized efforts from social and religious conservatives to get their issues — gun control challenges, religious objections to gay rights — before a court where like-minded justices will make up the majority.

On the other hand, the proliferation of lawsuits from blue-state officials objecting to President Donald Trump’s efforts to loosen environmental standards and impose tougher sanctions on immigration could fizzle.

Gone will be what one law professor called the “mushy middles” of Supreme Courts past, when justices such as Lewis Powell, Sandra Day O’Connor and Anthony Kennedy held the key votes and sometimes abandoned their usual conservative colleagues to side with the left.

The median justice is much more likely to be conservative Chief Justice John Roberts, who in his 13 years on the court has been on the losing side of 5-4 votes on environmental protection, abortion restrictions, affirmative action and samesex marriage, to name a few.

“We’re headed for a whole new world,” said Irv Gornstein, executive director of the Georgetown Law Center’s Supreme Court Institute. “And the only questions, I think, are: How far are we going to go and how fast are we going to get there?”

Paul Clement, solicitor general under President George W. Bush, said the change will require a new way of thinking about the Supreme Court.

“For years, the question was who’s the swing justice, and I’m not sure there will be one moving forward,” Clement said.

It is more accurate to think of Roberts as a “governor switch,” Clement said, determining “whether the court moves quickly or slowly.”

The court’s liberals have expressed alarm.

At a forum Friday at their alma mater Princeton, Justices Sonia Sotomayor and Elena Kagan worried about not only how the partisan battle over Kavanaugh might affect the court’s reputation, but also about how the court might change.

“I think it’s been an extremely important thing for the court that in the last really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who people found the center, who people couldn’t predict in that sort of way,” Kagan said.

“And that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. It’s not so clear, I think, going forward, that that sort of middle position — it’s not so clear whether we’ll have it.”

It was only two years ago that it seemed another side might own the court. After Justice Antonin Scalia’s death, President Barack Obama’s nomination of Judge Merrick Garland would have given liberals a majority on the court.

But Senate Majority Leader Mitch McConnell, R-Ky., refused to let the nomination move forward, in hopes that a Republican president would fill the opening.

As a result, Roberts will play a unique role; not only is he likely to be the median justice, as the court’s chief he decides which justice writes the opinion when he is in the majority.

John Elwood, a Washington lawyer who practices before the court, predicted that Roberts might try to bring Kagan on board for some decisions — he has been successful in the past, when the decisions have been narrow — to minimize the number of 5-4 splits.

It has been clear in the past that Roberts has been reluctant to be viewed as overturning the court ’s precedents, the doctrine know as stare decisis.

The key issue, said Washington lawyer Kannon Shanmugam, another Supreme Court regular, is “how is the new court — because the court is always a new court when it has a new member — going to approach the subject of stare decisis and the extent the new justice has diverging views from Justice Kennedy. ... I think there are good reasons to believe it will be gradual.”

Gornstein agreed.

“There is a risk. If we see one 5-4 decision after another, with Democrats on the four and Republicans-appointed on the five, the country at large will no longer view the Supreme Court in the same way it does now,” he said.

But the direction of the court is not solely up to Roberts. Justices Clarence Thomas, Samuel Alito, Kavanaugh and Neil Gorsuch, Trump’s other nominee to the court, are all thought to be to the chief justice’s right, and it takes only four justices to accept a case.

Thomas and Gorsuch have shown they are willing to reverse the court’s precedents.

Orin Kerr, a law professor at the University of Southern California who frequently writes about the court, predicts that the four will be presented with many opportunities.

“This will unleash a lot of test cases,” Kerr wrote in a series of tweets.