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A Watershed Moment in American History

Trump nominee Brett Kavanaugh will deliver Republicans a majority on the Supreme Court. Will he also prompt a reckoning among Democrats?

SAUL LOEB/AFP/Getty Images

President Donald Trump’s announcement on Monday night that he would appoint Brett Kavanaugh to the Supreme Court marked the culmination of a decades-long conservative campaign to reshape the federal judiciary. Sandra Day O’Connor, David Souter, and Anthony Kennedy can no longer disappoint the Republicans who helped place them on the bench. The high court’s future—and the nation’s—is now in the hands of a reliable majority of five conservative justices.

“Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law,” Trump told a White House audience. Kavanaugh thanked Trump for his decision and pledged his fidelity to the nation’s constitutional order, telling the audience that judges “must interpret the law, not make the law.”

There’s always a chance that Kavanaugh’s nomination will fail in the Senate, but the GOP’s majority in the chamber there makes it unlikely. Filling the nation’s courts with conservative justices is a unifying principle for the Republican Party and appears to be the one sacred cow that even Trump won’t slaughter. Democrats, by comparison, have never made the court’s future a make-or-break issue for its base. Trump’s choice of Kavanaugh could change that.

In 2005, then-Senator Joe Biden described the process to confirm a potential Supreme Court justice as a “Kabuki dance.” His description is even more apt today. The elaborate theatricality hasn’t changed much in the intervening years: Senate Democrats will once again try their best to get the nominee to share his views on abortion, LGBT rights, and other major issues while Kavanaugh plays coy and declines to signal how he would rule on future cases.

Much of the credit for the American right’s victory on Monday goes to Leonard Leo, a highly influential figure in the Federalist Society, the flagship of the conservative legal movement. (Leo is currently on leave from the group while the confirmation process unfolds.) Three of the court’s current justices—John Roberts, Samuel Alito, and Neil Gorsuch—can trace their appointments to his influence. Gorsuch and Kavanaugh were both on a list of 25 potential nominees that Leo vetted for Trump in 2016.

Of course, Republicans rarely acknowledge the goals of this long legal campaign. Leo gave an excellent opening performance last weekend to ABC’s George Stephanopoulos. “Is it fair to say that anyone who made it onto your list is likely to be an opponent of Roe v. Wade?” Stephanopoulos asked him, citing warnings by abortion-rights groups. “Nobody really knows,” Leo replied. “I think it’s a bit of a scare tactic and rank speculation more than anything else.”

This is a polite elision at best. Trump himself said during the 2016 presidential debates that he would appoint “pro-life justices” who would eventually overturn Roe. Whether Kavanaugh would do so won’t be known for some time, but his staunchly conservative record, and his promotion by the Federalist Society, suggests he would.

Kavanaugh, 53, is a judge on the D.C. Circuit Court of Appeals, an influential bench that reviews federal cases from the nation’s capital. The court’s docket is filled with cases involving the myriad government departments and agencies that are headquarted in Washington. From there, Kavanaugh has carved out an aggressive record when it comes to limiting the powers and functions exercised by federal agencies.

Federal courts typically rely on what’s known as the Chevron doctrine—named for a 1984 Supreme Court case involving the oil company—to determine whether an agency’s rule or regulation conforms to laws passed by Congress. Under the doctrine, courts must generally defer to an agency’s own interpretation of federal statutes when hearing challenges to that agency’s exercise of power. Many conservative legal experts and some Supreme Court justices are hostile to the Chevron doctrine on separation-of-powers grounds, believing that it grants too much leeway to federal officials. That hostility also often reflects a deeper aversion to the government’s regulatory powers.

In a Harvard Law Review article in 2016, Kavanaugh described the doctrine as “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” suggesting he may be open to curbing or overturning Chevron if confirmed. He also wrote a lengthy opinion in 2016 in which he found the leadership structure of the Consumer Financial Protection Bureau, a frequent target of conservative opprobrium, to be an unconstitutional violation of the president’s control over the executive branch.

Many of Kavanaugh’s other rulings will spark delight among conservatives and dismay among liberals. In 2011, he dissented from a D.C. Circuit ruling that upheld the District of Columbia’s ban on automatic weapons, urging his colleagues to take a less lenient approach when weighing whether gun restrictions passed muster under the Second Amendment. While the D.C. Circuit rarely hears abortion cases, Kavanaugh sided with the Trump administration last year in a ruling to block an undocumented immigrant teenager from obtaining an abortion while in federal custody.

Trump may have also been drawn to Kavanaugh’s expansive view of executive power in other areas. In a 2009 article for the Minnesota Law Review, the judge strenuously argued against prosecuting or suing a sitting president—an issue near and dear to Trump’s heart, as special counsel Robert Mueller’s investigation into Russian electoral meddling looms over his presidency.

“In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions,” Kavanaugh wrote. “The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.”

Democrats, on their own, have no way to prevent Kavanaugh from taking a seat on the Supreme Court. Nonetheless, his confirmation process could face pitfalls. Republicans currently hold 51 seats in the Senate. With Arizona Senator John McCain absent from Washington while he undergoes treatment for brain cancer, the GOP can only afford to lose one vote. Maine’s Susan Collins said last week she won’t support a nominee who “demonstrated hostility” to Roe, though Kavanaugh is extremely unlikely to do that in his confirmation hearings.

Republican voters may tolerate many heresies from their elected officials, but refusing to back a conservative Supreme Court justice isn’t likely to be one of them. Exit polls from the 2016 election found that a quarter of Trump voters cited the Supreme Court as their reason for voting for him. The prospect of Hillary Clinton appointing Antonin Scalia’s replacement, after the justice died in early 2016, also helped solidify Trump’s standing among top conservatives.

Democratic leaders, by contrast, haven’t made the high court’s future into a core issue in their political campaigns. Clinton and Barack Obama declined in 2016 to make the case for building the court’s first liberal majority since the 1960s. Instead, Democrats opted to make normative arguments about the impropriety of Mitch McConnell’s role in blocking Merrick Garland—the widely respected moderate whom Obama nominated to replace Scalia—and the Senate confirmation process itself.

The conservative movement’s push to remake the courts since the 1970s and 1980s ultimately sprang from the Warren Court’s spree of liberal decisions in the 1950s and 1960s. Now that conservatives firmly control the court’s direction, their rulings may prompt a similar pushback from liberals in the years to come. Monday’s announcement may ultimately mark not just the culmination of one campaign for control of the nation’s judiciary, but the beginning of another.