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Legal Learning: Now, it's 'Justice Kavanaugh'

James Manahan

After Brett Kavanaugh was confirmed by the Senate and sworn in as the ninth justice on the United States Supreme Court, people continued predicting disaster.

The Star Tribune headline was "Vote swings high court to the right." The article said that "the new majority is sure to move the law to the right on countless deeply contested issues, including abortion, affirmative action, voting and gun rights."

However, I came across a scholarly article entitled "The Judicial Common Space" by Lee Epstein, now a law professor at Washington University in St. Louis. Published in 2007, she classifies judges based on the party of their political patrons and other criteria.

It turns out that, using this scoring system, the most liberal Supreme Court Justice is Sandra Sotomayor (her score is minus 0.666). Next in line is the Notorious Ruth Bader Ginsburg (minus 0.611). Then come Elena Kagan (minus 0.431) and Stephen Breyer (minus 0.416).

The most conservative Justice is Clarence Thomas (plus 0.703).

Then comes Samuel Alito (plus .616). Neil Gorsuch is next (plus 0.459), and then Chief Justice John Roberts (plus 0.266). Justice Anthony Kennedy (plus 0.264) used to be in the middle until he retired — he was the swing vote, but usually swung to the right.

Well, Chief Justice Roberts is now in the middle, with a score almost identical to Justice Kennedy, and Roberts will likely swing to the right also.

The newly minted Justice Kavanaugh has a score of plus 0.693, almost the same as Clarence Thomas. But the Supreme Court as a whole still has four liberals and four conservatives, with the Chief Justice now in the middle. Nothing has really changed.

Sen. Susan Collins, R-Maine, voted to confirm Brett Kavanaugh, saying she believes he will not try to overturn Roe v. Wade, which struck down criminal laws against abortion. Sen. Lisa Murkowski, R-Alaska, was opposed to Kavanaugh, but also stated that she believes Roe v. Wade is safe. As for affirmative action and voting rights, the Supreme Court has not been very progressive, and that won't change. And Second Amendment enthusiasts still won't have to worry about their gun rights.

Miguel Estrada, a conservative litigator in Washington, D.C., whose nomination by President George W. Bush to the Court of Appeals was blocked by a Democratic filibuster in 2003, had this to say: "The conservative justices, which are about to take over the country, cannot agree on lunch. This whole notion that we're going to have ... the dawn of the right-wing court that is basically going to crush ... the rest of the country is pure fantasy."

On the other hand, Professor Lee Epstein says that "we might be heading into the most conservative era since at least 1937."

I think they are both right. A majority of the Supreme Court is conservative, just as it has been for the past quarter-century. It's a shame that Justice Ruth Bader Ginsburg has had to become "the great dissenter" instead of the writer of majority opinions.

James H. Manahan is a Harvard Law School graduate. He handles family law, wills and probate in and around Lake County, and does mediation everywhere. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at jimmanahan@gmail.com.

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