The Volokh Conspiracy

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Politico Symposium on Kavanaugh's Confirmation

I have a contribution in it, along with a variety of prominent legal scholars and commentators.


Earlier today, Politico posted a symposium on the confirmation of Brett Kavanaugh, whether he is now "damaged goods," and what this development portends for the future of the Supreme Court. Contributors include legal scholars and commentators from across the political spectrum, including Deborah Rhode, Reva Siegel, Sanford Levinson, Ilya Shapiro, Volokh Conspiracy co-blogger Eugene Kontorovich, and myself, among others. Here is an excerpt from my contribution:

It is difficult to remember now. But when he was nominated in July, Judge Kavanaugh was a respected pillar of the legal establishment, held in high regard by many liberal legal elites, as well as conservatives. The sexual assault accusations against Kavanaugh fundamentally changed his image.

We may never really know whether the accusations have any validity…..

Kavanaugh may be on the court for many years, during which time perceptions could change. But it will be difficult him to escape the shadow of Christine Blasey Ford's accusation.

Even more important than Kavanaugh's future is that of the Supreme Court as an institution. Public approval of the court has bounced back from previous events that many pundits thought would generate a devastating backlash. Perhaps history will repeat itself.

But the deeply divisive Kavanaugh confirmation comes on the heels of other developments that have generated immense anger among Democrats, most notably the GOP's refusal to consider President Obama's nomination of Merrick Garland. Even before the Ford accusation, some progressives advocated radical measures to retake control of the Supreme Court, such as "court packing." These ideas are likely to gain momentum now….

I opposed both liberal court-packing plans and that proposed by prominent conservatives last year. But, right now, it doesn't really matter what I think. What matters is that progressives increasingly believe that court-packing and similar measures are justified payback for the misdeeds of the right. That perception may lead them to take drastic action as soon as they next control both Congress and the White House. The right would then surely escalate further the next chance they get, potentially gutting judicial review…

Can the conservative majority on the court do anything to forestall the dynamic of escalation? It is hard to say….

The conservative justices should also consider taking more cases where legal rules favored by conservative jurists translate into policy outcomes attractive to liberals. Such cases are more common than many think, arising on issues ranging from sanctuary cities to criminal justice, among others. The more the justices can show they really are the impartial "umpires" they claim to be rather than foot soldiers in Team Red's war against Team Blue, the better their odds of avoiding a legitimacy crisis.