Three Predictions

I’m not even going to bother quoting the editorials at the NYT, WP, and WSJ on Brett Kavanaugh’s appointment as associate justice of the Supreme Court. It’s the usual suspects.

It strongly looks as though, true to his word, Trump has appointed a replacement for Scalia, an experienced jurist with considerable intellectual heft. The protesters aren’t protesting Kavanaugh’s appointment. They’re protesting that Trump has an appointment to make.

I want to put down three markers for what I think are likely to happen in the coming months and years, one trivially easy and the other two a bit stronger.

First, Kavanaugh will be confirmed, probably before September 1.

Second, neither Roe v. Wade nor Obergefell v. Hodges will be overturned within the next five years, if ever.

Third, it is possible that the Court will revise the “undue burden” standard, introduced after Roe (I don’t remember the name of the case).

I hope that this appointment returns issues like abortion, the limits of presidential power, and so on to the political sphere but I don’t have my hopes up. The Supreme Court is the least democratic branch of government and it’s ever so much easier to get your way by fiat than by persuasion.

6 comments… add one
  • 1. Based just on the Senate calendar, I tend to think the final floor vote will be closer to mid-September. But yes, he’ll be confirmed.

    2. I agree on both counts.

    3. I think the case you’re referring to is Casey v. Planned Parenthood, a 1991 case out of Pennsylvania.

  • Guarneri Link

    IMHO, truer words were never spoken. So much advocate agitation, so little sober commentary.

    I think he is a marginally more strict originalist. (I think that is good) Life as we know it will not end. Think what you want about the man and his policies, I think history will write that Trump made two fine SC nominations. Many a president has accomplished less.

    I think the wailing is, as you point out, a version of opposition to all things Trump, and disappointment with the perceived end of governing through the courts. Now, can the legislative rise to the occasion? Hey, how ’bout them Cubs, eh?

  • James Kirby Link

    Congress, that more democratic institution, has within its Constitutional powers (Art. III, § 2) the right to deny to the Supreme Court its appellate jurisdiction over abortion cases.

  • TastyBits Link

    The left has a good reason to go batshit crazy, but if one of the liberal judges needs to be replaced, ‘batshit crazy’ will reach levels rarely, if ever, seen.

    While many of the older decisions will remain mostly intact, the new ones will begin the rollback of judicial legislation. The fate of the many lawsuits brought because of President Trump’s policies are likely to be overturned.

    It must be devastating to realize you are not on the cusp of Lefist rule for ‘as far as the eye can see’. As I have said before, the Trump haters and #NeverTrump’ers have a lot more to lose, and if that does not terrify you all, we are not even at the halfway mark. Live by court rulings; die by court rulings.

    I almost feel sorry for you all, but nope, ha, ha, ha.

  • The left has a good reason to go batshit crazy, but if one of the liberal judges needs to be replaced, ‘batshit crazy’ will reach levels rarely, if ever, seen.

    I think that’s about right. Regardless of how much the NYT and WaPo go on about it, replacing Kennedy with Kavanaugh won’t change the ideological mix of the Court because Kennedy is conservative. He’s just a sexual libertarian. Some in the Democratic leadership, e.g. Rahm Emanuel have said as much.

    Replacing Ginsburg with a conservative would change the ideological mix of the Court.

  • Steve Link

    Replace a sexual libertarian with a conservative and Roe gets over turned. If Trump gets one more we get more than Roe overturned.


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