Hi, and welcome back to Legal Geek. This week, we come back to a subject promised 3 months ago when we covered the end of the prior Supreme Court term and retiring Justice Anthony Kennedy's legacy, that being what we can expect from the Roberts court now that Kennedy has been replaced by Brett Kavanaugh.
Even though John Roberts has been the Chief Justice since replacing former Chief William Rehnquist in 2005, his first decade plus on the court will likely be known in history as the Kennedy court because Anthony Kennedy was a libertarian thinker who often split the difference between the court's liberal justices and conservative justices. Now, however, Roberts is the most moderate conservative in a clear 5-justice majority thanks to the addition of Justice Kavanaugh to the likes of Justices Thomas, Alito, and Gorsuch.
This means Roberts will likely be the new person to chart the course for how decisions in the Supreme Court will head in the next few terms. Furthermore, his role as Chief Justice also gives him power to assign opinions when he is in the majority, lending him more power and influence as the court shifts to put him in the center. Roberts has also opined frequently on the importance of the Supreme Court as an institution and its credibility. Those concerns may lead him to push for more compromises across the liberal-conservative aisle.
Roberts has had a couple notable decisions where he broke from his conservative mates, most notably in upholding the Affordable Care Act in the biggest challenge to the law known as Obamacare. But for the most part, his personal views and decisions have been largely conservative. So outside a true shift in his judicial philosophies, the Roberts court will likely be a time of changing and challenging precedents of the past, up to and perhaps including abortion rights. It certainly doesn't look great for those of progressive thoughts and political agendas.
The other major change will be the inclusion of Justice Kavanaugh, who was the biggest confirmation firestorm since Clarence Thomas and for similar reasons. In his first week of oral arguments at the Court, Kavanaugh spoke up and asked questions less frequently than most of his colleagues, but when he did speak, he tended to speak more words on average than every other justice. So unlike Justice Thomas, Kavanaugh appears like he will not shy away from participating substantively in oral arguments. That means the bench will remain relatively hot for lawyers who appear to argue before the Court, which is a good thing.
Historically, justices on the Court tend to start fairly moderate in their first terms and then sway more towards their ideological sides as time goes on. So Brett Kavanaugh could follow this formula and be less conservative in these first couple years than where he will end up. That could allow for Chief Justice Roberts to find a happy medium and perhaps shift to more of a centrist in this time period without much precedent from the last 50 years being upset. But that's only one potential outcome, and we must see where Kavanaugh comes out on his first term before we evaluate his likely ideological further moves.
This means Roberts will likely be the new person to chart the course for how decisions in the Supreme Court will head in the next few terms. Furthermore, his role as Chief Justice also gives him power to assign opinions when he is in the majority, lending him more power and influence as the court shifts to put him in the center. Roberts has also opined frequently on the importance of the Supreme Court as an institution and its credibility. Those concerns may lead him to push for more compromises across the liberal-conservative aisle.
Roberts has had a couple notable decisions where he broke from his conservative mates, most notably in upholding the Affordable Care Act in the biggest challenge to the law known as Obamacare. But for the most part, his personal views and decisions have been largely conservative. So outside a true shift in his judicial philosophies, the Roberts court will likely be a time of changing and challenging precedents of the past, up to and perhaps including abortion rights. It certainly doesn't look great for those of progressive thoughts and political agendas.
The other major change will be the inclusion of Justice Kavanaugh, who was the biggest confirmation firestorm since Clarence Thomas and for similar reasons. In his first week of oral arguments at the Court, Kavanaugh spoke up and asked questions less frequently than most of his colleagues, but when he did speak, he tended to speak more words on average than every other justice. So unlike Justice Thomas, Kavanaugh appears like he will not shy away from participating substantively in oral arguments. That means the bench will remain relatively hot for lawyers who appear to argue before the Court, which is a good thing.
Historically, justices on the Court tend to start fairly moderate in their first terms and then sway more towards their ideological sides as time goes on. So Brett Kavanaugh could follow this formula and be less conservative in these first couple years than where he will end up. That could allow for Chief Justice Roberts to find a happy medium and perhaps shift to more of a centrist in this time period without much precedent from the last 50 years being upset. But that's only one potential outcome, and we must see where Kavanaugh comes out on his first term before we evaluate his likely ideological further moves.
The Bottom Line is, this is a huge potential shift for the Supreme Court changing from Kennedy to Kavanaugh, but Chief Justice Roberts holds the key for what the future will look like. It has been very rare in history for the center-most justice to also be in the role of Chief, so this will be a fascinating case study for future historians regardless of the politics.
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