The US Supreme Court is supposed to be a sacred institution impervious to partisan politics but the newly confirmed justice Brett Kavanaugh gives the court its staunchest conservative majority in decades.
As he was sworn in Monday night at the White House, after an ugly, contentious Senate confirmation process in which he battled allegations of sexually assaulting women, Kavanaugh, 53, vowed to serve the country — not one political party or another.
“The Supreme Court is an institution of law. It is not a partisan or political institution,” said Kavanaugh, who was to take up his seat on the nine-member bench on Tuesday.
But Steven Schwinn, a professor at the John Marshall Law School in Chicago, insisted the court has always been both a judicial institution and a political one.
“This didn’t start with Justice Kavanaugh’s nomination, and it won’t end here,” he told AFP.
Under the US constitution, it is the president who nominates people to the court but it is up to the Senate to confirm or reject them.
Judges are named for life, so they can leave their mark for a long time after they first join the court.
Over time, it has wavered from right to left. In the early 19th century it defended slavery. In the 1960s, it was key in ending racial segregation.
But now “the court has not been this conservative since back to the 30’s” when it opposed the New Deal that President Franklin D. Roosevelt pushed to lift the country out of the Great Depression, said Carl Tobias, a professor of law at the University of Richmond.
With the arrival of Kavanaugh the court comprises four liberals appointed by Democratic presidents and five conservatives picked by Republicans.
It is not the first time there is a Republican-picked majority, but until now some of these held swing votes — they voted right or left, depending on the issue at stake.
Such was the case with justice Anthony Kennedy, whose retirement paved the way for Kavanaugh to replace him. Kennedy was right-leaning on voting rights issues but a progressive on same sex marriage and access to abortion.
“I’m not sure anyone expects Justice Kavanaugh to play this same kind of role on the court. Instead, most predict he will be more reliably conservative,” said Schwinn.
He said Kavanaugh left “a lengthy paper trail” of judicial opinions and law review articles, among other writings, that is as copious as anyone appointed to the court in recent memory.
Kavanaugh, who worked in the administration of George W. Bush, was also endorsed by two conservative think tanks, the Federalist Society and the Heritage Foundation.
No army, no money
President Donald Trump politicized the nomination process by promising his supporters to nominate someone who opposed abortion and backed gun rights, two highly divisive issues that the Supreme Court has to rule on regularly.
Trump already managed to get conservative Neil Gorsuch onto the court in 2017 and might have other opportunities ahead: liberal judges Ruth Bader Ginsburg and Stephen Breyer are 85 and 80, respectively.
In the meantime, the court will tend toward the right both in its decisions and the issues it decides to address, said Tobias. It faces 8,000 cases a year and picks only a hundred or so.
If its rulings are seen as biased the court could lose credibility.
A Gallup poll released in early July said only 53 percent of those questioned said they approved of the court’s rulings. There were sharp divisions along party lines: 78 percent approval among Republicans but 38 percent with Democrats.
Justice Elena Kagan, a liberal who has sat on the court since 2010, said over the weekend that the court’s legitimacy is precious.
“We don’t have an army. We don’t have any money. The only way we get people to do what we say that they should do is because people respect us and respect our fairness, especially in this time, where the rest of the political environment is so divided,” Kagan said.
In an appeal to her fellow justices she added: “Every single one of us has an obligation to think what it is that provides the court with this legitimacy and to think about what we can be, not so politically divided as the other institutions in the nation.”
© Agence France-Presse