Happy Birthday to Justice Stephen Breyer, who turned 80 on Wednesday. He joins Justice Ruth Bader Ginsburg, who is 85, as one of the Court’s two octogenarians. Ginsburg and Breyer are both left-leaning Clinton appointees.
That means that there is a very real chance that a member of the Court’s liberal bloc could be forced to depart the bench before Donald Trump leaves office, potentially giving Trump the opportunity to name a third member of the Supreme Court.
President Obama, who, unlike Trump, actually won a majority of the popular vote in two presidential elections, only appointed two justices.
Currently, the Senate is considering Trump’s nomination of Judge Brett Kavanaugh, a staunch conservative who was a frequent antagonist of progressive regulations during the Obama era. If Kavanaugh is confirmed, that likely makes Chief Justice John Roberts, another staunch conservative but one who occasionally warns his fellow conservatives not to push for too much, too fast, the court’s de facto Court’s “swing” justice.
A world with Roberts at the center of the Court is grim for liberals. If Kavanaugh is confirmed, Roe v. Wade will almost certainly perish (though there is some uncertainty about how the Court will kill it). Roberts may or may not vote to overrule the Court’s marriage equality decision in Obergefell v. Hodges, but he is likely to give anti-LGBTQ business owners (and potentially even anti-LGBTQ government officials) broad immunity from anti-discrimination laws.
Roberts also struck down a major prong of the Voting Rights Act, under the theory that America is no longer racist enough to justify leaving the law intact, and he is likely to gut what remains of the law, potentially giving red states broad authority to enact voter suppression laws.
In other words, in the world where Judge Kavanaugh becomes Justice Kavanuagh the Court ceases to be a place where liberals have a meaningful opportunity to seek shelter in the law — even potentially for very basic claims such as lawsuits insisting that the United States should not deny people the right to vote on account of their race.
But if Trump gets to replace Ginsburg or Breyer, anyone to the left of Speaker Paul Ryan (R-WI) will likely come to miss the relative moderation of Chief Justice Roberts.
In that world, it’s Kavanaugh that likely becomes the closest thing the Supreme Court has to a swing vote — not because Kavanaugh shows many signs of moderation, but simply because he is a fairly wonky conservative who can sometimes be convinced not to give conservatives a short term victory if doing so could undermine a broader conservative goal.
As mentioned above, Roberts’ conservatism is sometimes tempered by an apparent fear that his Court’s legitimacy will suffer if its conservative bloc pushes for too much. As you may recall, Roberts famously switched his vote to save most of the Affordable Care Act in 2012. When conservative litigators came for Obamacare again in 2015, Roberts wrote an opinion placing this law on even stronger legal footing than it enjoyed before this lawsuit. The next day, he published an opinion warning his fellow conservatives away from some of the radical legal arguments that conservative justices embraced in the early twentieth century.
Kavanaugh’s most high-profile departure from conservative orthodoxy also occurred in an Obamacare case, but Kavanaugh’s reaction to the first round of legal attacks on the Affordable Care Act was very unlike Roberts’ approach. At oral argument in Seven-Sky v. Holder, Kavanaugh expressed concerns that a decision striking down Obamacare would also endanger Republican efforts to privatize Social Security. Like Obamacare, privatized Social Security would have relied on a partnership between the government and private businesses in order to provide a basic government service.
Ultimately, Kavanaugh punted on the question of Obamacare’s constitutionality, writing a dissenting opinion claiming that his court lacked jurisdiction to hear Seven-Sky.
Kavanaugh’s performance in Seven-Sky does suggest that he can be convinced not to give conservatives exactly what they are asking for in a particular case. But his performance at oral argument suggests that Kavanaugh is most inclined to stay his hand when the conservative position in a particular lawsuit could undermine a broader conservative project that Kavanaugh deems to be more important.
That’s a very different approach than Chief Justice Roberts’, who sometimes views judicial restraint as a virtue in and of itself.