How Brett Kavanaugh would transform the Supreme Court

That is not the case with the nomination of Judge Brett Kavanaugh, whose Senate confirmation hearings will begin Tuesday. Kavanaugh is considerably more conservative than the justice he would replace, Anthony Kennedy.

But there is a more subtle, and important, reason that President Donald Trump’s pick of Kavanaugh could remake the court. His confirmation would result in a rare replacement of the court’s swing justice, moving Chief Justice John Roberts — a much more reliably conservative vote than Kennedy — to the court’s ideological center.

It has been more than 80 years since a chief justice was the swing vote. If Roberts assumes that position, legal scholars said, he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations and give religion a greater role in public life.

“John Roberts would be the least swinging swing justice in the post-World War II era,” said Justin Driver, a law professor at the University of Chicago.

That would be a major break from the role that Kennedy, a moderate conservative who was appointed by President Ronald Reagan, played for years on the court. Kennedy at times voted with the court’s four-member liberal wing on issues like abortion, affirmative action, gay rights and the death penalty.

Kennedy and Roberts were on the opposite sides of 51 closely divided decisions in which Kennedy joined the court’s liberals, according to data collected by Lee Epstein and Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan. All of those precedents are at risk, Epstein said.

Only one of the previous five Supreme Court confirmation hearings concerned a nominee who would go on to change the ideological balance on the court. That was a dozen years ago, and it led directly to the Citizens United decision on campaign finance.

In that change on the court, Justice Samuel Alito replaced the more moderate Justice Sandra Day O’Connor. That made Kennedy the sole justice at the court’s ideological center.

Alito joined Kennedy’s majority opinion in 2010 in the court’s 5-4 decision in Citizens United, which overruled part of a 2003 opinion by O’Connor. Alito also joined Kennedy’s majority opinion in 2007 in another 5-4 decision, that one sustaining the federal Partial-Birth Abortion Ban Act. Seven years earlier, the court had struck down a similar Nebraska law, with O’Connor in the majority.

But the differences between O’Connor and Kennedy pale in comparison to the ones between Kennedy and Roberts. They were on opposite sides in blockbusters cases on climate change, the rights of people detained at Guantanamo Bay, Cuba, whether the death penalty is available for child rape, prison overcrowding, life without parole for juvenile offenders and gay rights.

“Justice Kennedy’s departure is likely to lead to far more dramatic change in the court than the departure of Justice O’Connor did,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University.

Political science data on the justices’ voting patterns confirm that analysis. “The shift in the court’s center from Kennedy to Roberts is likely to be far more important than the 2006 shift from O’Connor to Kennedy,” Epstein said. “O’Connor and Kennedy were much closer, ideologically speaking, than Roberts and Kennedy.”

By contrast, the other appointments since 2005 did not alter the court’s basic direction. Roberts’ replacement of Chief Justice William Rehnquist and Justice Neil Gorsuch’s replacement of Justice Antonin Scalia substituted conservatives for conservatives. Justice Sonia Sotomayor’s replacement of Justice David H. Souter and Justice Elena Kagan’s replacement of Justice John Paul Stevens substituted liberals for liberals.

While Roberts, 63, would represent a sharp change as the swing justice, that does not mean that the court will make a sudden leap to the right. Roberts is generally inclined to move in incremental steps, and he cares about the Supreme Court’s legitimacy and prestige. “It is a jolt to the legal system when you overrule a precedent,” he said at his confirmation hearings in 2005.

That did not stop him from joining a decision in June that overruled a 40-year-old precedent in a decision that dealt a sharp blow to public labor unions. In general, though, a court with the chief justice at its center would most likely move steadily to the right in measured steps.

“I would be somewhat surprised if any of the cases relating to affirmative action, abortion, same-sex marriage or the death penalty are flat out overruled,” Gornstein said. “But it would not surprise me in the slightest if the court never upholds another affirmative action plan, never finds another restriction on abortion to impose an undue burden, never extends the rights of gays and lesbians beyond where they are now, and never again expands the category of persons who may not receive the death penalty.”

Republicans are confident that they can quickly confirm Kavanaugh. Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, said there was a good way to determine where the Supreme Court would head if that happens.

“The key is,” he said, “the many areas where Kennedy was with the liberals in 5-4 decisions: abortion, affirmative action, gay and lesbian rights, criminal punishments and allowing proof of discrimination based on disparate impact. In all of these areas of law, Kavanaugh replacing Kennedy likely will mean a significant change.”

In 2016, in Whole Woman’s Health v. Hellerstedt, Kennedy joined the court’s four liberals to strike down parts of a Texas law that would have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.

That same year, he wrote the majority opinion in Fisher v. University of Texas, upholding a race-conscious admissions program at the state’s flagship university.

Both decisions would almost certainly have come out differently had Gorsuch, Trump’s first appointee, and Kavanaugh been on the court.

“The court’s jurisprudence on affirmative action and abortion have been administered last rites many times,” Driver said. “But if Kavanaugh is confirmed, it is virtually assured that they will be extinguished sooner rather than later.”

While Kavanaugh may face few obvious obstacles to his confirmation, his Senate hearings will still be bruising for other reasons. There is lingering bitterness among liberals over the Republican blockade of Judge Merrick Garland, President Barack Obama’s Supreme Court nominee. Democrats argue that they have not seen the documents they need to assess Kavanaugh’s record, a clamor that grew over the weekend as the White House said it was withholding 100,000 pages, citing executive privilege. And some Democrats question the legitimacy of a Supreme Court appointment by a president under investigation over his campaign’s ties to Russia and what critics call obstruction of justice.

Kavanaugh is 53. If he joins the Supreme Court, he will most likely serve for decades. His views may shift. Other Republican appointees, including Stevens and Souter, drifted left over time. Even Roberts, in a rare deviation from his conservative track record, voted with the court’s liberals in two cases saving aspects of Obama’s health care law.

But recent appointees have seldom disappointed their supporters, and Kavanaugh is not likely to be an exception.

“A dominant narrative of the Supreme Court during the last five decades has been the apostasy of Republican-appointed justices,” Driver said. “Kavanaugh’s confirmation would almost certainly spell the end of that storyline, and cement a generation of GOP constitutional orthodoxy.”

Thirteen years ago, Roberts’ performance at his confirmation hearings was so smooth and winning that Sen. Dick Durbin, D-Ill., said he had “retired the trophy” for an outstanding performance by a judicial nominee.

Roberts has since joked about the “odd historical quirk” that gives chief justices only one vote. If Kavanaugh is confirmed, Roberts will still have just one vote. But it will be the crucial one.

This article originally appeared in The New York Times.