It is widely assumed that if the conservative jurist Brett Kavanaugh is confirmed for the Supreme Court, President Trump’s nominee to replace Justice Anthony Kennedy will sway the Supreme Court towards conservative interests.
And while I share that assessment, I think some conservatives misread the court’s newly impending balance of jurisprudence. Because not all “conservative” justices are alike and on the most controversial questions of law, Chief Justice John Roberts is likely to be skeptical of what he regards as excess activism from either side.
Considering Roberts’ jurisprudence up until now, it is clear that the master of the court yields to individuals on matters of free speech and assembly, but to politicians on most other matters. Roberts has also shown hesitation against overturning prior decisions unless there are special considerations in favor of doing so. In this term’s case on cyber sales taxes, South Dakota v. Wayfair Inc., Roberts accepted that previous Supreme Court decisions had been wrongly decided but still dissented from overturning those decisions. In his dissent he noted his belief that tradition and the law suggest it was better for the politicians to do so.
Similarly, Roberts’ upholding of the Obamacare individual mandate was criticized by conservatives but reflected his belief that politicians be granted space to make law.
What does this mean for the court going forwards?
I think fewer liberal policy-by-jurist decisions, but also fewer conservative victories than some assume. So while Roe v. Wade is almost certainly going to be overturned, for example, Roberts’ is highly unlikely to uphold any state laws that obstruct commercial access to abortions across state lines, or the ability of organizations to move individuals across state lines to have abortions.
Instead, I believe the longest term impact of the court’s new balance will be in a greater restraining influence over executive authorities that adopt over-broad interpretations of federal laws.
