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The SCOTUS Battle Yet To Come

protest poster that reads 'Roe v. Wade is more popular than Brett Kavanaugh'
Protest poster, Washington, D.C. Photo by John Brighenti.

As the Supreme Court nomination of Brett Kavanaugh moves toward its first showdown vote, expected sometime today, just about the only perspective that broadly unites Americans is that this has been a brutal battle that practically nobody wants to repeat anytime soon.

Just imagine if the stakes in this nomination were genuinely as large as they have been made out to be. The truly pivotal nomination, the one that will most likely shape the court majority for decades to come, is apt to be the next one that comes along after Kavanaugh, or whomever ultimately fills the seat vacated by the retirement of Justice Anthony Kennedy.

This isn’t to say that Kavanaugh’s accession to the highest bench in the land would not be significant. While I believe the threat to Roe v. Wade may be overblown – it would only require one of the conservative justices to protect the precedent, and it is not a foregone conclusion that Kavanaugh, Justice Neal Gorsuch or Chief Justice John Roberts would blithely overturn it – Kavanaugh is likely to come down more reliably on the conservative side than Kennedy did on a host of lower-profile but important issues, from labor relations to property rights to the breadth of regulatory powers and scope of judicial review.

But Kavanaugh’s confirmation would still only leave a 5-4 conservative majority on the high court. The senior member of that majority is Justice Clarence Thomas, who at age 70 has already served on the court for 27 years. While 70 is not old as Supreme Court justices go, an unexpectedly early departure by Thomas would immediately put the conservative majority in play. Of course, so would the premature departure of any of the other conservatives. If Thomas were to step down in the next couple of years, President Trump would have an opportunity to nominate a younger successor. Assuming Republicans still controlled the Senate, this person’s confirmation would, at least statistically, extend the expected lifespan of the narrow conservative majority. And if Democrats gain a Senate majority in the next Congress, I don’t believe any Trump nominee is likely to be seated on the Supreme Court, or possibly on any federal court, for the remainder of his current term.

On the liberal side of the bench, Justice Ruth Bader Ginsburg is 85 and Justice Stephen Breyer is 80. If either of their seats open up during President Trump’s tenure (or that of any conservative successor), the next nominee would be a potential sixth vote for the conservatives, providing a spare vote against future contingencies. This nominee, not Kavanaugh, would lock in a conservative court for many years.

Note that there already are rumblings that House Democrats might want to further investigate and potentially impeach Kavanaugh should he be confirmed. Rep. Nancy Pelosi, who is in line to return as House Speaker if her party reclaims the majority in next month’s elections, has said it “would not be [her] plan” to push for impeachment. Plans can change, of course. Impeachment and removal is a far-fetched possibility, but then just about everything that has happened related to the Kavanaugh nomination in the past month would have seemed far-fetched to most of us as recently as Labor Day.

We can safely assume that Ginsburg and Breyer will do everything they can to remain on the bench as long as Trump or a GOP successor is in a position to name their replacement, especially if Republicans continue to control the Senate. While I do not wish them any ill fortune, fate can always intervene. Justice Antonin Scalia was 79 when he unexpectedly died in his sleep early in 2016. The Republican-dominated Senate’s refusal to even consider the nomination of Judge Merrick Garland as his successor, denying then-President Barack Obama the chance to shift that seat from the conservative to the liberal column, clearly fed a lot of the resentment that some people (myself included) believe congressional Democrats are manifesting in their treatment of Kavanaugh. Justice Gorsuch, who eventually became Scalia’s replacement once Trump took office, may have been spared the worst of the vitriol because his accession merely swapped one consistent conservative for another, while Kavanaugh is more of a presumed ideological shift from Kennedy. Democrats would argue that the different treatment is simply because Gorsuch did not deserve it and Kavanaugh, in their view, does.

Whatever merit or lack thereof exists in that argument, the bigger picture is that even Kavanaugh’s appointment pales in its long-term significance to whatever vacancy opens next, except in the unlikely event that it comes from one of the seats held by a relatively young justice whose party (treating liberal jurists as Democrats and conservatives as Republicans) also controls the White House and the Senate. If you think the stakes are high and the battle has been brutal over the Kavanaugh nomination, just wait. I don’t believe we have seen just how bad things can get.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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