President Donald Trump has nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to replace retiring Supreme Court Justice Anthony Kennedy, frequently referred to as the Court’s “swing vote”—i.e., a justice who occasionally crosses party and ideological lines to vote with the other side.
Since no one seems to think Kavanaugh will become a swing vote, the media and some commentators now suggest that role will shift to Chief Justice John Roberts.
Have you noticed that no one ever considers any of the left-leaning Supreme Court justices as a potential swing vote?
On issues where conservatives and liberals divide along ideological lines, the Court’s four liberals—Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer vote their liberalism.
For example, no one seriously believed any of the liberals would oppose Obamacare’s mandate to have health insurance when that came before the Court in 2012. All of the discussion focused on whether Justice Kennedy, or perhaps Chief Justice Roberts, would vote with the liberals—it was Roberts.
Prior to Kennedy, the swing vote was Sandra Day O’Connor, who, like Kennedy, was a Reagan appointee. She retired in 2006.
When Patrick D. Shushereba looked at the role of the Court’s swing vote from 1981 to 2012, there were only two associate justices to focus on: O’Connor and Kennedy.
You can’t even call now-retired Justice David Souter, a George H.W. Bush appointee who sat on the Court during many of those years, a swing vote because he regularly voted with the liberals.
Prior to Kennedy and O’Connor the swing vote arguably was Lewis Powell, a Nixon appointee. Did I mention that Powell joined the Court’s majority in upholding Roe v. Wade?
Are you beginning to detect a pattern here?
One explanation is that conservative-leaning jurists try to follow the letter of the law and the U.S. Constitution rather than their conservative ideologies. Or maybe Republican presidents are more likely to nominate jurists who have an independent streak, while Democratic presidents don’t.
That’s important because as Senate Democrats seek to defeat Kavanaugh’s confirmation, they will claim they want an independent-minded jurist, which means one who will occasionally vote with the liberals.
Ironically, the only ones who actually do show that independence are Republican appointees, the very ones that Democrats so strongly oppose.