I have no idea how the political battle over the Supreme Court vacancy — spurred by Justice Anthony Kennedy’s upcoming retirement — is going to play out, other than to recognize the obvious: It’s going to be ugly.
But I do think it probable that one way or another, President Donald Trump is going to get a candidate confirmed, and that candidate is going to be more conservative than Justice Kennedy. And on that point, I do have a somewhat unorthodox view: I don’t think it’s going to make a huge difference in most case outcomes. I say that for several reasons.
One is that most Supreme Court cases involve either highly arcane areas of law or reasonably well settled matters of law, and the decisions are not always close. I read recently that the two most popular vote tallies in Supreme Court decisions are 9-0 and 5-4, and the 5s and 4s change often, i.e., it’s not always the same combinations of justices voting in lockstep. Most Supreme Court cases don’t make much news because they don’t involve highly charged matters of policy or politics.
Second, to the extent cases are decided along what we consider “ideological” lines, Justice Kennedy usually voted with the justices who are considered “conservative.” His replacement will, too.
But, in that relative handful of high profile cases that raise political controversy and in which Justice Kennedy sided with the justices who are considered “liberal,” I don’t think we can assume that just because a more conservative justice takes his place whole areas of law are going to be overturned. The reason for that goes to the very core of our judicial system: the importance of legal precedent.
Precedent is at the heart of the rule of law. It is the common thread that holds the law together, the foundation on which our written law builds meaning, consistency and predictability. Judges depend on precedent to find authority for their decisions and, when legal issues arise that have not previously been decided, to derive legal principles on which to formulate a new element of law.
No one has greater respect for the value of precedent than the Supreme Court of the United States. Change in Supreme Court jurisprudence comes slowly, if at all, and incrementally when it happens. The court very, very rarely overturns long established case law. To do so simply because the makeup of the court changes would undermine the identity that it and the judicial branch cherish most: the “nonpolitical” branch of government.
Chief Justice John Roberts has a profound sense of the court as an institution, of its history and of its role in government. With that also comes a great respect for the singular importance of precedent. I cannot believe that he will allow the Supreme Court to reverse long-established legal precedent simply because of a change in its composition. I expect that under his watch the court will be very cautious about taking on new cases that challenge legal principles that the court has already decided, and in those areas where they do revisit previously settled legal issues, he will choose to preserve legal precedent. This doesn’t mean they won’t chip away in some areas … but full reversals are unlikely.
So I will watch events unfold and expect political storms and squalls — and maybe even a bit of erosion of legal principles that have stood for a long time — but I don’t think the law will change dramatically.
Syl Sobel is an attorney and author.