May 17, 2019--The Surprising Supremes

The struggle between the Trump White House and the Democrats in the House of Representatives is heating up. 

Congress is attempting to do its constitutionally mandated oversight work. They want access, for example, to the full Mueller report; they are also subpoenaing Trump's tax records; and they want to gather direct testimony from Mueller and, along the way, to have Donald Jr. testify about Russian interference in the 2016 election.

Trump is stonewalling everything, claiming executive privilege.

None of this will be resolved as it usually is by negotiations. There is too much bad blood for that and Trump knows how devastating it would be for him if the truth were exposed. 

It will then for certain take months or years for these disputes to be adjudicated by the Supreme Court.

Meanwhile, at the state level, Alabama just passed legislation to eliminate abortions under virtually all circumstances. Including if a women becomes pregnant as the result of rape or insist. This piece of legislation was not designed to be implemented but rather was carefully crafted to reach the Supreme Court and give the now conservative court the opportunity to consider overturning Roe v. Wade and thereby making abortion illegal in all 50 states.

Conservatives feel that with a majority of the nine members of the current court named by Republican presidents (Thomas by George H.W. Bush; Roberts and Alito by George W. Bush; and Gorsuch and Kavanaugh by Trump) Roe v. Wade is threatened as are affirmative action and all forms of support for voting rights. 

But maybe for conservatives it is too soon to celebrate.  

It is by no means certain that Roe and other examples of progressive Supreme Court decisions are doomed. They are seriously threatened, but it is not yet clear they will be overturned. 

Recall that Chief Justice Roberts joined the four liberal justices to uphold Obamacare. I speculated at the time and subsequently that Roberts, perhaps feeling everything that is decided on his watch will be attributed to the "Roberts'" Court, perhaps concerned about how he would be regarded by historians, he abandoned his up-to-then predictable conservative voting record and joined the four liberals to sustain a program that provides medical coverage for 20 million Americans. He did not want to see the Affordable Care Act shredded while he was serving as Chief Justice. He therefore contorted himself and found a way to support it.

But here's the real surprise--the voting pattern of the most recent member of the court: Brett Kavanaugh.

Recall, he is the justice who was accused of sexual harassment and confessed during his conformation hearing that he had a drinking problem. He testified rapturously about how he "loves beer." So much so that he repeated it half a dozen times. 

Did anyone after this and looking at his judicial record think he would even one time vote with the liberal block?

Well, he has been. In fact, he has voted with the liberals more often than any other justice.

In recent months, for example, he voted with Ginsberg and Sotomayor on the death penalty and criminal defendants' rights. In both instances not agreeing with Trump's other appointee, Neil Gorsuch and the other conservatives.

It is premature to speculate how he might vote when it comes to disputes about Trump's claims about executive power. 

There have been more than a few surprises when it comes to justices voting contrary to what one would have expected. There were numerous times when Franklin Roosevelt appointees voted against New Deal legislation and Byron (Whizzer) White, named by Kennedy, turned out to be more a conservative than a liberal. And then there was David Souter, protected by lifetime tenure, who was appointed by George H.W. Bush but turned out, once on the court, to be dependably liberal.

So, keep an eye on Kavanaugh. Along with Roberts he may turn out to be unpredictable. He too may have an eye on history.