We don’t know how the Supreme Court will rule

Published 2:54 pm Friday, October 12, 2018

As Judge Brett Kavanaugh is confirmed to the Supreme Court, people are already penciling in this court as a conservative court, poised to overturn nearly every liberal or moderate ruling. But just as you think you know the Supreme Court, the concept of judicial independence throws a monkey wrench into the best laid plans of attorneys, interest groups, politicians and pundits.

Take the case of Trump’s nominee Neil Gorsuch. Since he came onto the court, he’s been very willing to let a series of lower court rulings on liberal issues stand. Though liberals decried his position on the Peruta v. California case, he’s sided with the court liberals in allowing Maryland to ban semiautomatic rifles and magazines with large capacities (Kolbe v. Hogan). In fact, Gorsuch has become so liberal that his votes have earned the ire of Trump, as well as conservatives. By the way, I noted in a column that this was likely to happen back in 2017 when Gorsuch was nominated. That’s why I wasn’t surprised when Gorsuch’s voting record was considered more liberal than Anthony Kennedy’s, the swing vote.

Our college students learn that perhaps the most liberal court in history was Earl Warren’s court. Many are surprised to learn that Chief Justice Warren was nominated by Republican President Dwight D. Eisenhower, and was also a former GOP California Governor and Vice-Presidential nominee on the Thomas Dewey Presidential ticket in 1948.

It’s a similar story with Nixon nominees. Chief Justice Warren Burger was fairly moderate, as was Lewis Powell. Chief Justice John Roberts may have been nominated by George W. Bush, and generally votes conservative, but he was the key vote in upholding the Affordable Care Act. By now, you’ve come to the conclusion that the GOP just can’t pick their judges. But Democrats like Kennedy picked football star Byron “Whizzer” White, who became known as a conservative judge. Obama nominees Elena Kagan and Sonia Sotomayor have been known to side with conservatives on some issues. And Clinton pick Stephen Breyer is now considered the new swing judge on a number of issues.

In fact, former Supreme Court Justice Felix Frankfurter once admitted “The only check on us is our own self-restraint.”

Who knows how Kavanaugh’s career will turn out. But if history is any guide, neither side will be able to count his or anyone else’s votes before they’ve been cast on the Supreme Court.