Kennedy retirement will change Supreme Court, but likely not US law
I have no idea how the political fight over the Supreme Court job– stimulated by Justice Anthony Kennedy’s approaching retirement– is going to play out, aside from to acknowledge the apparent: It’s going to be unsightly. But I do think it possible that a person way or another, President Donald Trump is getting a prospect verified, which prospect is going to be more conservative than Justice Kennedy. And on that point, I do have a rather unconventional view: I do not think it’s going to make a big distinction most of the time results. I say that for numerous factors.
One is that most Supreme Court cases include either extremely arcane locations of law or fairly well settled matters of law, and the choices are not always close. I check out just recently that the 2 most popular vote tallies in Supreme Court choices are 9-0 and 5-4, and the Fives and Fours change frequently, i.e., it’s not always the exact same mixes of justices enacting lockstep. Most Supreme Court cases do not make much news because they do not include extremely charged matters of policy or politics.
Second, to the level cases are chosen along what we think about “ideological” lines, Justice Kennedy typically voted with the justices who are considered “conservative.” His replacement will, too. But, because relative handful of high profile cases that raise political debate and where Justice Kennedy agreed the justices who are considered “liberal,” I do not think we can presume that even if a more conservative justice takes his place entire locations of law are going to be reversed. The factor for that goes to the very core of our judicial system: the value of legal precedent.
Precedent is at the heart of the guideline of law. It is the typical thread that holds the law together, the structure on which our composed law constructs significance, consistency and predictability. Judges depend upon precedent to find authority for their choices and, when legal problems emerge that have actually not formerly been chosen, to obtain legal concepts on which to develop new aspect of law. Nobody has higher regard for the value of precedent than the Supreme Court of the United States. Change in Supreme Court jurisprudence comes gradually, if at all, and incrementally when it occurs. The court very, very seldom reverses long recognized case law. To do so just because the makeup of the court modifications would weaken the identity that it and the judicial branch treasure most: the “nonpolitical” branch of federal government.
Chief Justice John Roberts has an extensive sense of the court as an organization, of its history and of its function in federal government. With that also comes a fantastic regard for the particular value of precedent. I can not think that he will permit the Supreme Court to reverse long-established legal precedent merely because of a change in its structure. This does not mean they will not chip away in some locations, such as abortion rights, but complete turnarounds are not likely.