Mark Joseph Stern has offered us an interesting prophesy in Slate. His thesis, a bit hard to extract, is that Kagan has become pissed at Kavanaugh for hardening to the right. And that the weird barbs she has been throwing at him in two cases this term, in Borden and Edwards, are evidence not of things specific to those cases, but rather of what is to come. In other words, the barbs show ulterior motive. Kagan, the theory goes, knows what is coming at the end of the month. And from this she can very well see the writing on the wall for the Court’s next term.
Scholars of judicial politics should find two things of interest in the Slate piece. The first is that key evidence for this thesis will come to us in only a couple of weeks. We should buckle up, Stern’s argument goes, because the end of June will see noteworthy SCOTUS fireworks right around the time when American fireworks literally go off. The second thing to watch for is what might follow from such happenstance. If it foretells the loss of Kavanaugh as a swing voter in the next term, Roe will be in more danger than those of us who espouse a collegial model of decision making may think.
Here’s what institutionalists like myself tend to believe. June will always be June in SCOTUS — hot, but not climate-change hot. And Roe will simply be “managed” by the conservatives, not overruled (see television clip below). The institutionalists were 100% correct when the Trump lawsuits came before the Court. You didn’t get your Bush v. Gore II — in fact there was no partisan court whatsoever in all of those party regime petitions. And there is plenty of consensus voting data to show that a polarized Court is an empirical myth in our era, plain and simple (see lecture below). A good take on that was just posted today, right here. The simple fact of the matter is that SCOTUS policy opportunities tend to be strategic, embedded, incremental and contributory — they are not defined by party regime loyalties in the way that the explicitly political branches are. And of course C. Herman Pritchett correctly knew this many years ago.
But, let’s give devildom its due. If it is true that Kavanaugh will be lost as a swing voter in the future, and that Kagan’s sniping at him is evidence of this, all bets are off. Not only Roe, but the Court itself, will be in grave danger. You see, that is something that I think political folks don’t understand: if the attitudinalists win, we all lose.
Additional Material
Lecture by Dr. Wilson