Rightward groups eye high court battles
After Kavanaugh joins, 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,” said 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 repre-
sent conservative challenges to perceived government intrusion.
Now that Kavanaugh is on the court, those challenges are likely to increase – not just 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,” said 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 among 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,” said Ryan Radia, regulatory counsel at the Competitive Enterprise Institute.
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.
For all their optimism, conservative groups don’t expect that Kavanaugh will usher in a sea change.
“Traditionally over the years, the court has been cautious,” Burling said. “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.”