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Kavanaugh would join one of the most divided Supreme Courts ever, says Emory law scholar

The nomination of Brett Kavanaugh to fill Justice Anthony Kennedy’s slot on the U.S. Supreme Court comes at one of the most divided times in the court’s history, says Emory’s Robert Schapiro, Asa Griggs Candler Professor of Law.

To explain the contrast, he points to a somewhat similar time in the court’s history, when Justice Lewis Powell, long regarded as a centrist, stepped down from the Supreme Court in 1987—and was succeeded by Anthony Kennedy.

President Reagan’s initial choice to replace Justice Powell was Robert Bork, whose conservative views elicited tremendous controversy. After the Senate refused to confirm Bork, President Reagan nominated Kennedy, who was seen as a more centrist choice.

“There was a feeling at the time that Powell’s replacement was very important, that we had a court with somewhat well-defined conservative and liberal sides to it, and there was a fight that ensued,” says Schapiro. “What’s different now is that what seemed to be a polarized court on key controversial issues then has become even more so today.”

Another change is that Powell had voted for Roe v. Wade as part of a seven-justice majority. His departure did not imperil that decision. By contrast, Kennedy is one of five Justices on the current Court to affirm support for the constitutional right to abortion. His replacement could provide the fifth vote to overrule Roe. 

In terms of legacy, it will be interesting to see where Kavanaugh stands on the role of state versus federal government, says Schapiro. 

“Although Justice Kennedy was a strong supporter of states, and somewhat skeptical about the reach of the federal government, in certain cases, he was also the swing vote supporting the assertion of federal power,” says Schapiro.

“We will see if Brett Kavanaugh will accept the strong language Kennedy used about supporting states, while occasionally voting to affirm the importance of federal authority.”

Most Supreme Court watchers have recognized Kennedy’s retirement as adding to the rising influence of Chief Justice John Roberts as the centrist on the court, and Schapiro notes that Roberts’ role in the center was evident this past term. 

Looking at cases where Kennedy joined the liberal wing of the court in a 5-4 majority, recent patterns emerge, says Schapiro. During the 2015 term, Kennedy joined the more liberal wing of the court in 75 percent of 5-4 cases; in 2016, he joined the liberal wing in 57 percent of those decisions; and in 2017, zero percent. 

In contrast, Roberts joined the more liberal justices in two of the 5-4 decisions this past term, says Schapiro, signaling that in some respects he had already become the justice at the center.

One surprise of the term for Schapiro was the outcome of the gerrymandering cases. “There was a view that Justice Kennedy was extremely concerned about gerrymandering,” says Schapiro, and many thought that the justice wanted to write a definitive opinion about it before retiring. Instead the court ended up ducking the key issue there. 

For those disappointed in the opinions written by Kennedy during his final term, Schapiro points out that “Kennedy may have been a swing vote, but he was a conservative justice. It is a very conservative Supreme Court and will remain a very conservative Supreme Court.”

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