On July 9, 2018, President Donald Trump announced his nominee for the vacancy on the Supreme Court left by Justice Kennedy. The president chose Brett Kavanaugh as his nominee, immediately sparking a huge battle over whether he will be confirmed by the Senate, whether or not his confirmation hearing will come before midterm elections, and what his potential confirmation could mean for the future of the United States.
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When Justice Anthony Kennedy announced his retirement, politicians recognized that his vacancy will put the balance of the court in jeopardy. There are currently four liberal justices and four conservative, with Justice Kennedy acting as an occasional swing vote, although he typically tended to vote more conservatively. His retirement opens a space for the Supreme Court to be moved decisively to the right for generations to come. A Supreme Court justice holds tremendous influence over our political systems and the lives of everyday American citizens. Over the past several years, Justice Kennedy unexpectedly helped to protect gay marriage and uphold Roe v. Wade, which protects a woman’s right to have an abortion. However, despite serving as a swing vote to uphold more socially liberal policies, Kennedy still tended to vote conservative in many cases.
The appointment of Judge Kavanaugh to the Supreme Court could potentially endanger precedents set by Justice Kennedy. Kavanaugh’s history as a judge could help indicate where he will fall on key issues. For example, in past rulings, Judge Kavanaugh has voted to protect 2nd Amendment rights. In 2011, he dissented with a court ruling in the D.C. Circuit that banned semi-automatic rifles. In his dissent, he said that “handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens." Therefore, he concluded, since semi-automatic handguns were constitutional, semi-automatic rifles should be as well. His previously rulings on gun laws have many Democrats concerned that he could expand gun rights as a justice.
Judge Kavanaugh has also historically voted against environmental protections, as he has stated that the Environmental Protection Agency (EPA) has too much power in some cases. In a 2012 case that upheld Obama-era regulations on greenhouse gas emissions, Judge Kavanaugh wrote a dissent: “The task of dealing with global warming is urgent and important… but a court’s assessment of an agency’s compliance with statutory limits does not depend on whether the agency’s policy is good or whether the agency’s intentions are laudatory.” So while Judge Kavanaugh has recognized the threat of global warming, he historically has not favored the EPA’s regulations.
On the issue of abortion, which many Democrats fear could be in danger, Kavanaugh has a mixed history. In a case concerning an undocumented immigrant who wished to get an abortion while in detention, the court ruled in her favor and allowed her to seek an abortion immediately. The Trump administration had wanted to postpone her decision and instead have an adult sponsor offer her guidance and advice, in the hopes of dissuading her from seeking an abortion. Judge Kavanaugh dissented with the court’s decision to let her seek an abortion, and he wrote that with this decision, the government was “forcing the minor to make the decision in an isolated detention camp with no support network available.” He further went on to say that this ruling established a precedent for undocumented immigrants in detention to get abortions “on demand.” However, despite this ruling, he has also said in the past that as a judge he would respect the historical precedent and ruling of Roe v. Wade, since it had been decided by the Supreme Court. Of course, as a justice, he would have the power to overturn that ruling, but he has never expressed outright opposition to Roe v. Wade.
Of course, the nomination of Brett Kavanaugh may not result in a confirmation for quite some time; if Democrats can delay in Congress long enough to wait until midterm elections, the Senate may swing to a Democratic majority, making Judge Kavanaugh’s confirmation much more difficult. With generations of court rulings on the line, the appointment of the next Supreme Court Justice is sure to leave an indelible mark on the U.S. for many years to come.
Abigail is a rising sophomore at Emerson College studying for a BFA in creative writing. She spends most of her free time during the year working for her school newspaper, but also enjoys going to poetry readings, spending time with friends, and cheering for her hometown Philadelphia sports teams.