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.