I have no idea how the political fight over the Supreme Court job– stimulated by Justice Anthony Kennedy’s approaching retirement– is going to play out, aside from to acknowledge the apparent: It’s going to be awful. But I do think it likely that a person way or another, President Donald Trump is getting a prospect validated, which prospect is going to be more conservative than Justice Kennedy. And on that point, I do have a rather unconventional view: I do not think it’s going to make a big distinction in many case results. I say that for a number of factors.
One is that most Supreme Court cases include either extremely arcane locations of law or fairly well settled matters of law, and the choices are not always close. I check out just recently that the 2 most popular vote tallies in Supreme Court choices are 9-0 and 5-4, and the Fives and Fours change frequently, i.e., it’s not always the very same mixes of justices enacting lockstep. Most Supreme Court cases do not make much news because they do not include extremely charged matters of policy or politics.
Second, to the degree cases are chosen along what we think about “ideological” lines, Justice Kennedy generally voted with the justices who are considered “conservative.” His replacement will, too. But, because relative handful of high profile cases that raise political debate and where Justice Kennedy agreed the justices who are considered “liberal,” I do not think we can presume that even if a more conservative justice takes his place entire locations of law are going to be reversed. The factor for that goes to the very core of our judicial system: the value of legal precedent.
Precedent is at the heart of the guideline of law. It is the typical thread that holds the law together, the structure on which our composed law develops significance, consistency and predictability. Judges depend upon precedent to find authority for their choices and, when legal problems occur that have actually not formerly been chosen, to obtain legal concepts on which to create new component of law.
Nobody has higher regard for the value of precedent than the Supreme Court of the United States. Change in Supreme Court jurisprudence comes gradually, if at all, and incrementally when it takes place. The court very, very hardly ever reverses long recognized case law. To do so merely because the makeup of the court modifications would weaken the identity that it and the judicial branch treasure most: the “nonpolitical” branch of federal government.
Chief Justice John Roberts has an extensive sense of the court as an organization, of its history and of its function in federal government. With that also comes a terrific regard for the particular value of precedent. I can not think that he will permit the Supreme Court to reverse long-established legal precedent merely because of a change in its structure.
I anticipate that under his watch the court will be very mindful about handling new cases that challenge legal concepts that the court has actually currently chosen, and in those locations where they do review formerly settled legal problems he will opt to protect legal precedent. This does not mean they will not chip away in some locations, such as abortion rights, but complete turnarounds are not likely. So I will watch occasions unfold and anticipate political storms and squalls– and perhaps even a little bit of disintegration of legal concepts that have actually meant a long period of time– but I do not think the law will change drastically.