CHICAGO — The Supreme Court appears poised to shift to the right if Congress confirms U.S. Circuit Judge Brett Kavanaugh for a position on the highest court. If chosen, some conservatives are hoping Kavanaugh will join other conservative-leaning judges in reversing several landmark court decisions, sending the issues back to the states to decide on, said Joseph Mello, an assistant professor of political science in DePaul University’s College of Liberal Arts and Social Sciences.
Mello, author of the 2016 book “The Courts, the Ballot Box, and Gay Rights: How our Governing Institutions Shape the Same-Sex Marriage Debate,” has researched law and society, American political thought, and conservative political thought and ideology for more than a decade.
In this Q&A, Mello discusses some of the history behind the Supreme Court, how conservatives planned for years to secure a majority on the court, options to bring the court back to center, and how states’ rights could become important to liberals.
Q: Polling shows that more than half of Americans are in favor of landmark Supreme Court decisions like Roe v. Wade (abortion rights) or Obergefell v. Hodges (same sex marriage). However, some are talking about these decisions being reversed if there’s a reliably conservative court. Should public opinion influence decisions by the court?
A: The courts were not intended to be a democratic institution. In “Federalist 78,” Alexander Hamilton talked about how the courts are supposed to be insulated from popular will, because we want them to serve as a check against the impulses of the majority. The people might want something that's bad for democracy and contrary to our core beliefs. So just because something the court does is not popular, doesn't mean it's not the right legal decision.
Q: Why does the Supreme Court appear so political? Wasn’t it supposed to be a neutral, third branch of the government free of politics?
A: As a social scientist, I believe that legal decision-making is very much a subjective exercise, and that judges can find a justification for almost any opinion they want to write. There are multiple ways to interpret our constitutional amendments, all of which are potentially legitimate. Thus, it matters what your politics are. We have this idea that law is an arena of reason, removed from politics. Most legal scholarship suggests this is not the case. Judges are not robots, they are human beings with political and moral beliefs which necessarily bleed into their decisions.
This is not a new phenomenon. There is no mythical period in U.S. history when the court was apolitical for us to use as a model. The court has been a site of partisan conflict since Thomas Jefferson squared off with Chief Justice Marshall and the Federalists dominated the Supreme Court in the early 1800s. There is a long list of controversial court cases such as Dred Scott v. Sandford (1857), Lochner v. New York (1905), and Korematsu v. United States (1944). All of these decisions were a product of the political climate of their time. I think the court has always been political and we just have failed to realize that at times.
Q: Do you believe the confirmation of Brett Kavanaugh would significantly move the court to the right?
A: The current court and its move to the right was planned by conservatives. The conservative group the “Federalist Society” had a huge role in picking judges, and its goal was to avoid choosing the next Justice David Souter, who Republican President George H.W. Bush selected but ended up voting with liberal justices consistently. The Federalist Society is picking judges who are vetted, who have a long track record of making conservative opinions. The group’s list helped President Trump choose both Neil Gorsuch and Brett Kavanaugh.
It's going to be hard to stop Kavanaugh from getting approved and seated. And if you’re a liberal, you’re talking about a court at that point that would have Chief Justice John Roberts as the most centrist member of the court’s conservative wing.
Q: In an ideal world for conservatives, what are they hoping for with some of those key court decisions?
A: Conservatives are trying to get these cultural battles back to the states. In the best-case scenario, they would make it possible for some states to go back to outlawing things like abortion or gay marriage, while others would choose not to.
What’s interesting to me is that if this works, you’re going to start seeing people on the left who have never been big states’ rights activists suddenly becoming huge states’ rights activists. You're already seeing it on immigration with sanctuary states, environmental regulations, marijuana and things like that. Liberal states are starting to talk about states’ rights and are sort of doing their own thing because the federal government isn't acting on these issues. In this scenario, the country would probably become increasingly polarized.
Q: What are some options that might help bring the court closer to center?
A: There are several options, but would require Democrats to have majorities in Congress and the presidency. The most likely scenario would be to be in position to appoint liberal Supreme Court Justices when members of the current court retire. Ruth Bader Ginsberg, Steven Breyer, and Clarence Thomas will all likely retire within the next decade. If a Democratic President were to appoint replacements for all three, then the balance of the court could be changed again.
One measure might include putting term limits on the court, say 15 years. This would make a lot of sense but I think that's a big task, because it would require a constitutional amendment. Increasing the size of the court is another option. There's nothing in the Constitution that says it has to be nine justices. It's been bigger and it's been smaller in our history. If Democrats the majority in Congress, they could even try to impeach justices. It's in the Constitution as a method of removal, but it hasn't been tried since the 1790s and it’s never been successful. The issue is that these measures will be extremely hard to pass in today’s political climate.