|"If there’s one proposition that distinguishes Kavanaugh from his more militant colleagues, it’s his unique capacity to write specific, detailed decisions that knock down trees while leaving forests intact."|
Posted by: TEEBONE ® |
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Shapiro At 'National Review': What Kind of Supreme Court Will We Get Now?
Amid the wailing and gnashing of teeth from the political Left and the triumphalist trumpeting from the political Right regarding the nomination of Judge Brett Kavanaugh to the Supreme Court, one question has gone missing: What, exactly, will the Supreme Court look like once Kavanaugh joins? Those on the left, like those on the right, suggest that Kavanaugh will be a transformational pick. They believe Roe is in danger, that Citizens United will be dramatically strengthened, that religious believers will be handed carte blanche, and all the rest. Here’s the truth: If there’s one proposition that distinguishes Kavanaugh from his more militant colleagues, it’s his unique capacity to write specific, detailed decisions that knock down trees while leaving forests intact. Kavanaugh’s opinions tend not to be ringing endorsements or rebukes of the Justice Scalia or Justice Thomas type; they tend to be narrowly tailored decisions that recall Chief Justices Roberts and Rehnquist.
Now, it’s possible that Kavanaugh has hidden his light under a bushel, because he’s an appellate court judge bound by precedent. It seems more likely that he’s a fan of Roberts-type judicial restraint, which means pruning back law he sees as violating the Constitution rather than decimating it and salting the earth.
Take, for example, Roe v. Wade. Conservatives have high hopes that Kavanaugh — along with Roberts, Gorsuch, Alito, and Thomas — will rule to knock over that legal monstrosity. That’s highly unlikely. First off, it takes four votes for the Supreme Court to agree to review a particular lower-court case, and it’s unlikely that Roberts and Kavanaugh will agree to review a straight-up challenge to Roe.
It’s far more likely that we’ll see Roberts and Kavanaugh review cases that pare away at Roe via the “undue burden” standard articulated in Planned Parenthood v. Casey (1992) — a case in which the Court held that abortion laws were tenable unless they presented an “undue burden” for a woman seeking an abortion. In Gonzalez v. Carhart (2007), for example, Justice Kennedy decided for the Court that the Partial-Birth Abortion Ban Act was constitutional, because women could get abortions prior to late-stage pregnancy, and the law therefore didn’t constitute an undue burden. We could see that logic extended incrementally over time, leaving Roe in place but carving out chunks of it.
That sort of incrementalism is less likely to whip up anger against the Court — a major concern for Roberts, at least. But it’s also more likely to leave unborn children vulnerable over time, and it leaves open the possibility that if the Court moves back to the left, the “undue burden” loophole will be closed.
LIBERTY HAS NO EXPIRATION DATEDemocrats wouldn't buy a clue if it was government subsidized.
Modified by TEEBONE at Wed, Jul 11, 2018, 13:47:05
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