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Why a Court with Kavanaugh Is Nothing to Fear

July 11, 2018 in Economics

By Trevor Burrus

Trevor Burrus

Brett Kavanaugh is Donald Trump’s nominee to fill Justice
Anthony Kennedy’s “swing” seat on the Supreme Court, known as such
for how often his vote was the deciding one on behalf of either the
liberal or conservative cohorts of the court on issues ranging from
same-sex marriage to the travel ban.

With the Kavanaugh pick, many on the left are now concerned that
a more conservative Supreme Court could result in harm to civil
liberties and the rolling back of federal programs. While those
concerns are not unreasonable, they shouldn’t be apocalyptic. The
reality is that gay marriage isn’t going anywhere, Roe v.
Wade
will probably not be overturned, and a court with a
Justice Kavanaugh could help rein in an executive branch that has
become too powerful.

I am a libertarian, and Kennedy’s votes aligned with my
philosophy more often than any other justice’s — albeit often
accompanied by somewhat inscrutable judicial opinions. In addition
to his stalwart defenses of free speech (Texas
v. Johnson
) and federalism (NFIB
v. Sebelius
) Kennedy was the swing vote in all the major
gay rights cases of the past 25 years. When Kennedy arrived on the
bench in 1987, same-sex intimacy was illegal in many parts of the
country. When he left, gay marriage was legal everywhere. That’s a
legacy for which he will be justly celebrated.

Yet Kennedy did not so much lead that parade rather than join
it. The growing social acceptance of gay rights is one of the great
civil rights stories of all time, and it didn’t happen because the
Supreme Court told us to do it. According to Pew, in 2001, 57% of Americans
opposed gay marriage; in 2017 only 32% did.

Those numbers matter to justices, even ones like Kavanaugh.
Disrupting expectations and going against widespread public opinion
is not something that any justice is likely to do. Overturning gay
marriage would require invalidating hundreds of thousands of
marriages, and it would wreak havoc with tax statuses,
inheritances, property ownership and dozens of other legal
relationships that extend from marriage.

The reality is that gay
marriage isn’t going anywhere, Roe v. Wade will probably
not be overturned, and a court with a Justice Kavanaugh could help
rein in an executive branch that has become too
powerful.

Moreover, overturning gay marriage would cause public opinion to
shift against the Supreme Court, imperiling the legitimacy of an
institution that depends upon the perception of legitimacy to
function effectively. According to Gallup, the court hasn’t had an approval
rating over 50% since 2010. While justices should theoretically do
their jobs without concern …read more

Source: OP-EDS

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