Tag: Kavanaugh

US Supreme Court Combats Racial Bias in Juries

On 21 June 2019, the US Supreme Court ruled 7-2, in the case of Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), that a persistent use of peremptory challenges to remove black jurors during a series of trials against Curtis Flowers violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The only African-American on the bench, Justice Thomas, dissented.

Curtis Flowers was accused of four murders in a furniture store in Winona, Mississippi in 1996. Altogether, he had six separate jury trials. The first three ended with convictions which were later overturned by the Mississippi Supreme Court on the grounds of prosecutorial misconduct. During these, no African-American sat on the jury despite the fact that the population distribution near Winona was approximately 50% African-American. Next two ended with a mistrial due to hung juries. The sixth trial was held in 2010. During the voir dire procedure proceeding the trial, the prosecution used peremptory challenges to dismiss five African-American jurors, leaving only one African-American on the jury. This trial ended with a conviction and the death sentence. Flowers appealed to the Mississippi Supreme Court arguing that the use of peremptory challenges to dismiss African-American jurors violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The conviction was upheld and Flowers petitioned the US Supreme Court to hear his case.

Peremptory challenges allow attorneys from both sides to dismiss potential jurors during the voir dire procedure proceeding a trial without stating a reason. Usually, both side have a certain number of such strikes which varies form one State to another. Peremptory challenges come on top of challenges for cause which allow attorneys to dismiss any number of jurors suspected of bias. In Batson v. Kentucky, 476 U.S. 79 (1986), the US Supreme Court ruled that the prosecutor could not use peremptory challenges to exclude jurors based solely on their race as this practice violated the Equal Protection Clause of the 14th Amendment.

The Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), written by Justice Kavanaugh, and joined by Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan and Chief Justice Roberts, pointed to “four critical facts, [which] taken together, require reversal“:

“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court… Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.” [pp2-3]

As to the importance of each fact, the Court held that:

“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.”  [p3]

In issuing its verdict, the Court felt that it was not doing anything beyond applying the holding of Batson v. Kentucky, 476 U.S. 79 (1986):

In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” [p3]

The Majority opinion also briefly analysed the historical relationship between the Equal Protection Clause of the 14th Amendment and the right to serve in juries. This included, apart from the 14th Amendment itself, the judgment in the Slaughter-House Cases, 16 Wall. 36, 71 (1873), the Civil Rights Act of 1875 and the judgments in Strauder v. West Virginia, 100 U. S. 303 (1880)Brown v. Board of Education, 347 U. S. 483 (1954) and Swain v. Alabama, 380 U. S. 202 (1965).

Then, the Majority opinion summarised the main principles established by Batson v. Kentucky, 476 U.S. 79 (1986):

“First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination…
Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant…
Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination…
Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out…” [pp13-15]

The Court also listed the types of evidence which could be relied on by the Defendant when bringing a Batson challenge: 

  • “statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
  • evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;
  • side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
  • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;
  • relevant history of the State’s peremptory strikes in past cases; or
  • other relevant circumstances that bear upon the issue of racial discrimination.” [pp16-17]

Based on the history of Flowers’s case and the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the Majority opinion held that the prosecution had not given sufficient race-neutral reasons to justify the exclusion of the five African-American jurors during Flowers’s 6th and final trial. This led the Court to conclude that his rights under the Equal Protection Clause of the 14th Amendment were violated and the conviction had to be reversed.

Interestingly, Justice Thomas, the only African-American on the bench, dissented arguing that the Court “almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [five] black prospective jurors” in Flowers’s final trial [p2]. Justice Thomas claims that the Court “never should have taken this case” because it did not present any real question of law and the Court only wanted to “reconsider the factual findings of the state courts” [p4]. He also points to a bigger picture – the Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), and its effect on Batson v. Kentucky, 476 U.S. 79 (1986), will make it “impossible to exercise a peremptory strike that cannot be challenged by the opposing party, thereby requiring a ‘neutral’ explanation for the strike. But requiring an explanation is inconsistent with the very nature of peremptory strikes.” [p40].

Justice Thomas finishes his Dissenting opinion with his own views on peremptory challenges:

In sum, as other Members of this Court have recognized, Batson charted the course for eliminating peremptory strikes… Although those Justices welcomed the prospect, I do not. The peremptory system ‘has always been held essential to the fairness of trial by jury’.” [p40]

It seems that Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019) was as much about a racial bias in the jury selection as it was about the nature and place of peremptory challenges in today’s criminal justice system.

Supreme Court to Hear 2nd Amendment Case for the First Time in 9 Years (SCOTUS)

In August 2018, The Jurist’s Corner speculated that one of the cases to look for in the next US Supreme Court term would be a 2nd Amendment case. On 22 January 2019, the Supreme Court announced that it would hear a case from New York concerning restrictions on transporting firearms outside one’s home (CNBC). The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) comes 9 years since the Court last considered a 2nd Amendment case and 11 years since the landmark decision in District of Columbia v. Heller, 554 U.S. 570. The Supreme Court will now decide if the New York law preventing gun owners from transporting lawfully owned firearms, except to and from shooting ranges, is compatible with the 2nd Amendment.

So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues have been hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788 that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later.

However, in 2018, the Supreme Court refused to hear any case that would resolve the circuit split and avoided ruling on the wider issue of the right to carry firearms outside one’s home. Now, it seems, the Court is slowly engaging with this question, although it might take more than just one case to establish some clear principles on the issue. The appointment of Judge Kavanaugh as a new Supreme Court Justice will probably have a considerable impact on this case, and any similar cases in the future, as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011).

Affirmative Action Goes on Trial (Again)

On 25 August 2018 The Jurist’s Corner speculated about possible legal issues to reach the US Supreme Court in its current term. This included the question of the constitutionality of affirmative action in the light of a DoJ investigation into the admission practice of the Harvard University which allegedly discriminated against Asian-American candidates. It is now confirmed that on 15 October 2018, a lawsuit against the Harvard University alleging race discrimination goes on trial before a federal District Court in Boston. The lawsuit is being brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum, and is supported by the Trump Administration. Affirmative action has been so far upheld by the US Supreme Court on numerous occasions, most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, even so upheld, affirmative action is legally limited only to situations where no race-neutral solutions would be effective in increasing the number of minority students accepted by a University. The lawsuit now alleges that the Harvard University has not properly considered race-neutral admission schemes before factoring race in its application process (Reuters). In this type of lawsuits, the burden of proof rests on a University to justify the use of race as a consideration in its admission process. On the other hand, if this cases proceeds to the US Supreme Court, it is possible the Court will declare affirmative action unconstitutional in its entirety. Affirmative action has always been very controversial and recent cases were decided 5-4 with Justice Kennedy joining the 4 liberal Justices in upholding it. Now that Justice Kennedy has been replaced by Justice Kavanaugh, it is possible the Court will vote 5-4 to strike down all affirmative action programmes as a form of unconstitutional discrimination under the 14th Amendment.

Impeaching a Supreme Court Justice

The next day Justice Kavanaugh had been confirmed to the Supreme Court, some Democrats called for his potential impeachment, should they flip the House of Representatives after the November mid-term elections (The Washington Post). Article II, Section 4 of the Constitution stipulates that “... all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors“. Accordingly, the impeachment process has several elements. Firstly, the alleged wrongdoing must fall within the scope of an impeachable offence. Secondly, the House of Representatives must approve the Articles of Impeachment with a simple majority vote. Thirdly, the Senate must convict (i.e. removed from office) with at least 67 votes or otherwise the proceedings result in an automatic acquittal. Although a Justice of the Supreme Court (and any other federal Judge), as an Officer of the United States, is subject to impeachment, it is very unlikely that Justice Kavanaugh will be (successfully) impeached in any foreseeable future. First of all, it is not clear anyone could be impeached for any alleged wrongdoing taking place prior to the taking of the office. In Justice Kavanaugh’s case, most allegations were at least 30 years old therefore not in any manner connected with the office from which a successful impeachment would seek to remove him. Secondly, even if the Democrats win a majority in the House of Representatives in November, it is not clear they will have 218 House Members willing to vote in favour of the Articles of Impeachment, given how many of them would be coming from Red States supporting Justice Kavanaugh. Thirdly, even if the House votes to impeach, the impeachment will inevitably fail in the Senate given that the Constitution requires a two-thirds super majority to convict (i.e. remove) a person subject to the impeachment proceedings. As of now the Democrats do not even have a simple majority in the Senate and even if they manage to flip it in November, it will not amount to a two-thirds majority. From a purely legal point of view, raising the possibility of the impeachment of Justice Kavanaugh could not be taken seriously. This is even more so considering that no Justice of the Supreme Court has ever been removed from office by way of impeachment. In 1804 Justice Chase was impeached by the House of Representatives but a year later the impeachment failed in the Senate. In terms of lower courts Judges, only 14 have ever been impeached and of those only 8 have been actually removed from office by the Senate and an overwhelming majority of them on the grounds strictly related to their functions as a Judge, such as taking bribes or abuse of power (Federal Judicial Center). The possibility of impeachment by Congress is an extremely powerful tool which goes against the traditional separation of powers and therefore, by design, its use is severely restricted only to the most serious examples of the abuse of power.

Justice Kavanaugh Joins the Supreme Court

On the night of 6 – 7 October Judge Kavanaugh was officially confirmed by a 51-49 majority of the US Senate as a new Associate Justice of the Supreme Court. Republican Senator Lisa Murkowski of Alaska, who was considered a swing vote, voted ‘present’ therefore opposing the candidacy. Another Republican swing vote, Susan Collins of Maine, aligned with a Republican majority after a forceful defence of Judge Kavanaugh on the Senate floor the day before. The Republicans also picked up one Democrat, Joe Manchin of West Virginia who is facing a tough re-election fight in his deeply red state. The vote comes after weeks of investigations and hearings concerning sexual misconduct allegations against Judge Kavanaugh put forward by 3 different women, among which was that of Dr Christine Blasey Ford, which was a subject of a special Senate Judiciary Committee hearing (summary of allegations: Business Insider UK). In the last days of the process, many Senators saw protesters roaming the Senate halls demonstrating both their support and opposition to Judge Kavanaugh’s confirmation. This also included many examples of disorderly behaviour leading to hundreds protesters being arrested (The Guardian). The opposition to Judge Kavanaugh’s confirmation was based on a whole range of arguments, from those related to his judicial record, through the non-disclosure of old communication records, to those concerning sexual misconduct allegations and his short temper. On the other hand, the Republicans complained that the Democrats were adamant to derail the confirmation process with malicious behaviour from the start and none of their arguments had any merits. At the end of the day, however, Judge Kavanaugh has been dully confirmed and will now join the other 8 Justices of the Supreme Court who have already returned to work from their summer break.

The appointment of Judge Kavanaugh to the Supreme Court is bound to create a reliable originalist majority for the first time in almost 80 years, i.e. since Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. Although since 1937 the Court has seen periods with a majority composed of Republican-appointed Justices, they have not been consistently originalist in their judicial philosophies. It was the appointment of Justice Scalia to the bench by President Reagan in 1986 that brought the originalist philosophy back from the exile to the mainstream. Since then, other originalists have been appointed to the Court, including Justice Thomas (1991), Chief Justice Roberts (2005), Justice Alito (2006), Justice Gorsuch (2017) and now Justice Kavanaugh. Although the originalism of Chief Justice Roberts is admittedly less rigorous than that of Justice Thomas, and in the incoming years he might be even moving more towards the centre, it seems that the current Court is bound to be concerned with the original meaning of the Constitution more than at any other point within the last 80 years.

These changes to the composition of the Supreme Court will have a profound impact on a whole range of cases which are likely to reach the Court in this term. Firstly, on the subject of the 2nd Amendment, the Court might be asked to decide what types of firearms are covered by the 2nd Amendment and whether the Amendment applies to all public spaces in addition to one’s home. In this respect there appears to be a circuit split between the 9th and the 7th Circuit Courts of Appeals (Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) v Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788)). Secondly, on the never-ending issue of ObamaCare, the Court will likely be asked to resolve the question whether the ObamaCare’s Individual Mandate (and possibly other parts of the statute with it) has been rendered unconstitutional by The Tax Cuts and Jobs Act 2017 which eliminated the tax/penalty for not complying with it. At this point, several Red States are suing claiming that the elimination of the tax has rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in its famous 2012 case (Texas Tribune). However, the lawsuit goes even further and claims that the Individual Mandate is inseverable from the rest of the law, or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Thirdly, the Court might be asked to rule whether the DACA programme (and its rescission via executive action) is constitutional. The Trump Administration announced in 2017 that it would rescind the DACA programme altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. Now an appeal in this case is expected by the Trump Administration. Fourthly, also on the immigration subject, the Court might be asked to finally resolve the question of the legality of the so called sanctuary cities. In 2017 the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and persuaded a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Fifthly, the Court is likely to be asked again to rule on the constitutionality of affirmative action as last decisions on this subject have been extremely closely decided with Justice Kennedy always casting the deciding vote. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Finally, the Court will most likely, again, deal with abortion. On 4 May 2018 the State of Iowa passed into law in the so called ‘heartbeat’ Act banning abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, which now constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the Supreme Court. Overall, given the multitude of important issues which await consideration by the US Supreme Court, the new originalist majority of the Court might leave a unique legacy for decades to come.

After the Hearings: Kavanaugh Likely to be Confirmed

Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.

The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.

President Trump’s ‘Record-breaking’ Number of Judicial Appointments

With the nomination of Judge Kavanaugh for Justice Kennedy’s seat at the Supreme Court, some commentators raised the issue of President Trump rapidly transforming the Federal Courts by appointing a record number of District and Circuit Court Judges (e.g The Guardian here and here). This claim is based mostly on the fact that a record number of such Judges have been appointed in President Trump’s first 1,5 years in the office comparing with previous Presidents (e.g. The Hill here). In as much as this is probably true, the claim that President Trump will appoint an unprecedented number of lower Courts Judges is rather misleading.  As of 25 July 2018, President Trump has nominated 137 Judges of the so called Article III Courts (USCourts.gov). Although this seems like a high number for only 1,5 years into the presidency, so far the US Senate has confirmed only 44 of those 137 nominations (including 1 Justice of the Supreme Court, 23 Judges for the United States Courts of Appeals and 20 Judges for the United States District Courts). This is still claimed to be one of the highest numbers for any presidency after only 1,5 years. However, even if this pace is maintained, and President Trump is re-elected in 2020, he will have only appointed around 234 Judges throughout his two terms. This is not even close to his predecessor, President Obama, who appointed 308 Judges between 2008 and 2016. It is also far from the three record-holders in this regard, President Clinton, President Reagan and President W. Bush, who appointed 357, 347 and 310 Judges, respectively.

Even this calculation is based on the assumption that (a) President Trump will be re-elected and (b) that the Republicans are able to retain the Senate majority of at least 51 votes throughout the two presidential terms. Both assumptions are easy to displace. In fact, the Republicans might as well lose the Senate majority in the November mid-term elections and, given the degree to which the judicial confirmation process has been politicised, none of President Trump’s nominees awaiting a confirmation hearing might receive his or her judicial commission after all. It is clear that a Democratic Senate will not help President Trump elevate conservative Judges to the Federal Courts. In such case, President Trump might end up on the lower end of the SCOTUSBlog ranking with no more than 50 judicial appointments in total.

Judge Kavanaugh to Replace Justice Kennedy

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On 09 July 2018 President Trump nominated Judge Kavanaugh for the US Supreme Court vacancy created by the retirement of Justice Kennedy. Judge Kavanaugh is a Judge of the Court of Appeals for the powerful DC Circuit and has been serving in this capacity for 13 years. He had been initially appointed to this Court by President Bush after having served under him as a White House staffer. Even more interestingly, in the 1990s, Judge Kavanaugh worked with Independent Counsel Kenneth Starr investigating business deals of then President Bill Clinton in relation to the Whitewater development which famously led to the impeachment and then the eventual acquittal of President Clinton on the charges of perjury and the obstruction of justice in 1999.

Judge Kavanaugh is known to be an originalist with a strong record on gun laws (Heller v. District of Columbia (2011)) and the separation of powers (PHH Corp. v. Consumer Financial Protection Bureau (2017)). On the other hand, many conservative members of the Senate point out that he helped save ObamaCare’s individual mandate when the case was before the Court of Appeals by construing it as a tax (Seven-Sky v. Holder (2011)) and voted to uphold massive data collection by the NSA outside the Fourth Amendment’s protection of privacy (Klayman v. Obama (2015)). Finally, Judge Kavanaugh seems to have no clear record on the right to abortion (but see Garza v. Hargan (2017)) – the most crucial issue for the vast majority of progressive Senators.

In the incoming months, Judge Kavanaugh will face a Senate confirmation hearing and will be asked to answer multiple questions about his judicial and administrative past. The hearing will most likely be a contentious one with many Democratic Senators already vowing to vote against him. However, with a 51 majority, the Senate Republicans are likely to confirm Judge Kavanaugh in time for a new session of the Supreme Court beginning in October 2018. The vote will probably go down along the party lines with a few Democrat Senators from typically Red States perhaps voting for Judge Kavanaugh to strengthen their position before the November mid-term elections.