Kavanaugh and the Supreme Court

I am very excited about this post, it is the first guest writer for Historically Speaking and is an excellent addition to this site.

The recent Brett Kavanaugh appointment has led many to believe that it is just a matter of time before we see a reversal of rulings in cases. Many people look upon Supreme Court appointments as representative’s votes to the conservative or liberal agenda. But, historically speaking, things are never what they seem to be with the Supreme Court.

The court has a long history of doing things not expected; much like Lord Coke, as Chief Justice of the King’s Court, inserted an unparalleled act of judicial activism by asserting the King subject to common law in England in the 1600s.  Chief Justice John Marshall seized the opportunity to define the Supreme Court when, in Marbury v. Madison the court declared an act of Congress unconstitutional: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Marshall looked back to the courage of Coke and relied upon the reasoning from Coke’s decision in “Dr. Bonham’s case” for the legal argument of interpretation by the courts in the Marbury case. Thus, we see how courts continually rely on previous decisions and logic to address current issues. A principle we will discuss later.

            The expectation is that with the appointment of a conservative judge there will be a wave of rulings to the contentment of the conservative movement in the country. While the court does have a history of tilting to the left or the right at certain times, it is unwise to put any real reliance into individual justices. Harry Blackmun, who famously wrote the Roe v. Wade decision, was appointed by Richard Nixon. Blackmun was a conservative and friend of conservative Chief Justice Warren Burger. Their conservative votes in the early years gave them the nickname, “the Minnesota twins.” But as his career advanced Blackmun became increasing liberal. By the end of his career he voted 90% of the time with the liberal end of the bench. Ever self-effacing, as a supreme court justice he used to drive his Volkswagen Beetle through fast food joints telling the workers, “I’m Harry. I work for the government.” Sadly, his change in voting patterns made him estranged from Burger.

            Even while maintaining a certain judicial philosophy, justices may vote on issues that depart from their usual positions. Sandra Day O’Connor was a conservative justice from Arizona who voted with conservative Chief Justice William Rehnquist in nearly all her early votes. Later, she developed into a swing vote on the court, but still voted with the conservative side of the bench two-thirds of the time. O’Connor’s early voting pattern with her opinions criticized and limited Roe v. Wade; but by 1992, she wrote there was a 14th amendment due process right to abortion in Planned Parenthood v. Casey. O’Connor maintained her conservative view through her judicial career, but consistently voted to uphold Roe v. Wade.  Even though considered, at one time, the most powerful woman in the world, she maintained retired active status and served as a judge on several federal circuits when there was a shortage, as well as, campaigning for judicial independence.

Even Antonin Scalia, the quintessential conservative, could be drawn to voting for liberal issues.  In Texas v. Johnson, Scalia joined the liberals in voting 5-4 to declare the Texas flag burning statute unconstitutional.  Scalia, effusively expressive with this command of the English language, loved great arguments and debates over Italian food with family and friends. He shared a passion for opera with Ruth Bader Ginsberg. He took Justice Kagan big game hunting.  Despite ferocious arguments over the law, he was able to maintain close relationships with his colleagues. It’s a lesson we could all learn.

            This lack of consistency often perplexes the media and public who look at justices in simplistic categories such as liberal and conservative. Each one of them is driven by certain touchpoints developed from their practice of law. Secondly, but equally important, they give deference to stare decisis, that is, looking at prior decisions of Anglo-American law that have developed for nearly a millennium for guidance. The Supreme Court looks at itself as an institution and one of the foundations of the republic. Unlike what you heard in 6th grade civics, the Supreme Court makes law just as the courts have in the English system we inherited. The common law, a term so well-known, is judge-made law. As such, each new member gives great deference to the logic and decisions provided by previous courts. Reversing themselves upon the whims of public opinions is simply not in their institutional DNA. Consider the pro-slavery 1857 Dred Scott decision denying African-Americans citizenship, it took a civil war and a constitutional amendment to change the decision. Interestingly the Supreme Court has never expressly overturned Dred Scott in subsequent decisions on the issue.

Today, we can see some change as conservative Chief Justice Roberts voting with the liberals.  These votes may be a hint showing the Chief Justice will guide the court in a direction allowing limitations of controversial cases like Roe v. Wade, but not overturning it much to the chagrin of partisans on each side of the abortion issue. Thus, we see a function of the court as protecting the constitutional boundaries, but leaving the profound, fundamental changes to the political arena. To overturn Roe v. Wade, the watershed Supreme Court decision of this generation, stare decisis and the great deference to the opinions cited in the decision must be overcome. It will likely take a constitutional amendment to overturn Roe v. Wade.

George Burnett received his B.S. from Oklahoma State University in 1981 in Animal Science.  He then later graduated from the Oklahoma City University Law School in 1987.  Burnett worked as an Assistant District Attorney for Oklahoma, Blaine, Garvin, and McClain Counties for 25 years.  As a felony lawyer he tried thousands of cases, everything from shoplifting to Capital murder cases.  He completed his career as Assistant Attorney General for the State of Oklahoma. Follow Historically Speaking at http://www.Historicallyspeaking.blog or Facebook at @jamesWfinck.

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