A Supreme Court Transformed by Linda Greenhouse

Last edited Thu Sep 13, 2018, 12:49 PM - Edit history (1)

What will the court look like when neither side of the ideological divide has to walk on eggs to win the favor of the justice in the middle?

'So it’s all over but the voting. I’m writing this column on the assumption that Judge Brett Kavanaugh will soon be Justice Kavanaugh, despite the Democrats’ continuing efforts to convert a futile battle over ideology into an ugly one over transparency and ethics. By the first Monday in October or soon thereafter, the Roberts court version 5.0 (accounting for the earlier arrival of Justices Samuel Alito, Sonia Sotomayor, Elena Kagan and Neil Gorsuch since Chief Justice John Roberts took his seat in September 2005) will be underway.

What then?

Most answers to the “What then?” question have offered side-by-side comparisons of Brett Kavanaugh and the justice he will be succeeding, Anthony Kennedy. What part of Justice Kennedy’s 30-year legacy will he embrace? What part will he repudiate?

I’d like to shift the field of vision and consider the impact of Judge Kavanaugh’s arrival on the eight other justices — on the dynamic of the Supreme Court as a whole. Justice Byron White, who saw 13 new justices take their seats during his own 31-year tenure, once remarked that every time a new justice joins the court, “it’s a different court.”

On one level, that’s a truism: In a group of people as small as nine, it’s hardly a surprise that the departure of one and arrival of another would alter some established patterns, even beyond a measurable shift in the group’s ideological midpoint. But it seems to me that Justice Kennedy’s departure and his replacement by a justice reliably to his right could well be transformative, and not just because the right to abortion may lose its tenuous hold or because the sun may finally set on affirmative action. . .

His final words might, I hope, be given a strategic place somewhere at the court, perhaps in a desk drawer where a future Justice Kavanaugh might come upon them as he starts his new job.

This is what Justice Kennedy wrote: “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”'

https://www.nytimes.com/2018/09/13/opinion/editorials/kavanaugh-supreme-court-divide.html?