How Could Brett Kavanaugh’s Appointment Affect the Supreme Court?

Experts Report: Christopher Schmidt, Professor of Law

July 26, 2018

TRANSCRIPT

So the big question is where Judge Kavanaugh might differ on given cases from where Justice Kennedy, who’s stepping down, would come out in these cases. On a lot of cases I think we’re going to see Judge Kavanaugh being quite similar to where Justice Kennedy was. Justice Kennedy was very strong on certain free speech issues, and most indications are Judge Kavanaugh is relatively similar in that regard.

But a lot of the cases where people think there could be a difference between where Justice Kennedy voted and where Judge Kavanaugh might vote are the ones that are getting a lot of attention these days. Some of those areas include abortion rights. So Justice Kennedy actually co-wrote one of the opinions in which he reaffirmed Roe versus Wade, limiting it in some ways but basically saying that there is a constitutional right for a woman to have an abortion under certain circumstances. So one question we have is whether Judge Kavanaugh also will vote to reaffirm Roe versus Wade. Some indications are that he’s relatively skeptical about the Roe versus Wade decision, some of the reasoning that went into that, so we’ll look and see on that particular issue.

Another issue people are curious about would be gay rights. Justice Kennedy was actually the leader of the court on issues of gay rights. He wrote the four major opinions that came out on gay rights issues including a 2015 Obergefell decision, which recognized the constitutional right to same-sex marriage. So one question we have is whether Judge Kavanaugh also will be supportive of this particular constitutional right, and we’re not clear on that.

This is an issue that has really divided the conservatives and the liberals in the current court. Judge Kavanaugh clearly identifies himself as a conservative jurist. This is also an issue that conservatives and liberals aren’t quite as divided as they were in past years. For example, President Trump as a candidate declared that the same-sex marriage decision, he said that’s settled law and he didn't think that it should be open for reassessment. So that’s an issue we’ll wait and see where Judge Kavanaugh comes down.