The Kavanaugh Thing — As a Political Scientist Sees It

A comment by a political scientist (Matthew Dickinson at Middlebury College) on the Kavanaugh thing. As he says, the “true nature of the Court” is that “justices are partisan in robes, who interpret ambiguous language in was that are consistent with their political preferences.”

I am not so sure about his notion that Roberts will be a swing Justice. We’ll just have to see.

Many activists, particularly those backing Ford, think this confirmation fight will somehow damage the long-term legitimacy of the Court, particularly if Kavanaugh is confirmed.  I disagree. That view is based on a willfully misleading impression of the court as a decision-making body composed of priests in robes who divine the “truth” through careful consideration of legal principles.   But decades of social science research paints a different picture.  Justices are partisan in robes, who interpret ambiguous language in ways that are consistent with their political preferences.  Yes, we all are willing to adopt the pretense that the Court is above politics, and I think that fig leaf serves a useful purpose by providing a sheen of legitimacy to court rulings, and compensating for the fact that once confirmed they are not accountable to the people.  But partisans on both sides understand the true nature of the Court, and the Kavanaugh confirmation battle will only reinforce what they already know, which is that elections matter, and whichever party has the votes in the Senate will use them to tilt the Court toward their preferred political direction.  It has always been thus, and it will always be so…

And for those lamenting Kavanaugh’s confirmation – if he is confirmed?  Note that our best guess, based on his record to date (see above) is that Kavanaugh will vote in ways that make him much closer to Thomas, and the right wing of the Court, than to Kennedy’s relatively more centrist views.  However, this will likely make Chief Justice Roberts the new swing voter on many issues, replacing Kennedy in that role.  And Roberts is, at heart, an institutionalist very concerned with protecting the Court’s perceived legitimacy and public standing.  This makes it highly unlikely, in my view, that he will support decisions, such as repealing Roe v. Wade, that run counter to prevailing public opinion.

qedd© Jon Johanning 2011