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Session Summary: Kavanaugh’s Impact on the Supreme Court

Submitted by Corinna Lain

Tuesday afternoon sported two discussion groups on Justice Kavanaugh—one focusing on his confirmation process, and one focusing on his impact on the Supreme Court.  This post is a rundown of the latter (although in fairness, the discussion talked a bit about the confirmation process too).

Joining the discussion group was Mark Graber (Maryland), Lori Ringhand (Georgia), Michael Dimino (Widener), Corinna Lain (Richmond), Barry McDonald (Pepperdine), Eric Segall (Georgia State), Dan Urman (Northeastern), and a host of non-discussants who made wonderful contributions to the conversation.  Corinna moderated the discussion and was quick to flash time cards to keep our illustrious discussants and non-discussants alike within their allotted limits.

Mark Graber kicked off the discussion by talking about Flowers v. Mississippi, the absolutely ridiculous Batson case in which Mississippi tried the defendant six times—six—and struck 41 of 42 black prospective jurors in the first five trials, and five of the six prospective jurors in the sixth trial.  Kavanaugh wrote the opinion overturning the conviction in trial number six, and used strong language to condemn the state, but how much did that show, Graber pondered—the case was insane.  (But still, Thomas dissented…).

Lori Ringhand talked about the historical importance of the Supreme Court appointment process as a fundamentally majoritarian process, and then noted the number of times that a non-majoritarian elected president made Supreme Court appointments (including, of course, our current president, who has made two appointments while falling several million votes short of winning the popular vote).  Lori had lots of good stats, but she was too engaging to take good notes.

For his part, Michael Dimino observed that the Kavanaugh appointment process has made the Supreme Court a laughing stock, and his interest was in the causes and effects of that phenomenon—how much of this is the Supreme Court’s own fault and what’s the impact on the Court’s legitimacy going forward.

Corinna Lain first threw some shade on Mark Graber for taking her death penalty talking points on Flowers, and then used every second of her time (and then some) to talk about Bucklew v. Precythe, the dreadful death penalty case in which the Supreme Court said it was fine to execute a guy with a rare congenital condition that produced blood-filled tumors in his throat, knowing that those tumors would burst and that he would die drowning in his own blood, because he didn’t provide enough details on an alternative method of execution that the state itself had adopted.  Kavanaugh wrote an important concurrence in that case, Lain argued, that will likely take the entire issue off the table in future cases—and good riddance!

Barry McDonald followed with some observations about Kavanaugh’s potential impact on originalism, noting that the promise of originalism was that it was supposed to take the personal inclination of judges out of it, and that’s not what we see happening.  Originalists differ on originalism and its outcomes, and that has the potential to undermine the project of originalism itself, he argued.

Eric Segall used his time to engage with the ideas of the discussants who came before him, agreeing with some and adding nuances to the comments of others. Ever the gentleman, he also ceded a minute of his time to one of the discussants, who responded to his response.  Oh, and also he said that Gorsuch is no originalist.  Yes, the panel was on Kavanaugh.

Dan Urman made one of the most astute comments of the discussion (which was full of astute comments) in saying it’s just too early to tell what Kavanaugh is going to be like.  He had a bruising appointments process and so the fact that he may have laid low in some areas really doesn’t tell us much about what he’ll be as he gets comfortable in his seat.  He’s the guy in a western movie, Urman said; he’s on his horse sitting at the top of a hill.  There are two paths.  One, ignore moderation, and screw the Left—they tried to skewer him.  Two, be the junior partner to Chief Justice Roberts; conservative but not radically so.  Which path Kavanaugh will choose remains to be seen.

Those were the opening salvos from the discussants, but they were mixed in with comments along the way from others who joined the group, and after everyone had an opportunity to say a little something, a lively discussion ensued.

Highlights included Chris Green saying to Eric Segall, “I agree with Eric, wholeheartedly” and then the two arguing about what it was that they supposedly agreed on (and Eric begging to make sure Chris’s comment made this blog post), and Mark Graber noting that as the Supreme Court moves to the right, it won’t be surprising to see the conservative justices splintering and the more liberal (and centrist) justices voting in block.  The middle and left are so far out of the game that their votes are going to be clear and generally non-distributed, Graber predicted, whereas the conservative justices will have to decide where to build and how, and that creative process will be ground for disagreements.  After a while, Lori Ringhand came in with a sharp “The Supreme Court has radically too much power” and the crowd went wild.  Both conservatives and liberals at the table agreed, and then someone suggested it was time for drinks.  And so it was.  The discussion group disbursed, and moved on to other discussions at the reception just starting.

It was a great way to end another great day at SEALS.

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