“Justice Brett Kavanaugh made a direct effect on the big case of the year—the gerrymandering case.”
With a new justice sitting on the U.S. Supreme Court this Term, California Western’s Professor Glenn Smith hones in on what he believes was the most evident influence in the make-up of the Court—trading Justice Anthony Kennedy for the person who was confirmed to take his place—Brett Kavanaugh.
“Until Justice Kavanaugh added a fifth vote the Court was divided four-one-four,” says Professor Smith, “with Justice Kennedy being the “one” in the middle. “On the gerrymandering case, now five justices have said that it's not a judicial political question and the court just can't deal with it as it’s not appropriate for federal courts.”
According to Professor Smith, the direct trade of Justice Kavanaugh for Justice Kennedy made the difference in the outcome of that case.
U.S. Supreme Court Makeup
In other cases, Professor Smith sees Justices Gorsuch and Kavanaugh as being the next-generation version of the people they replaced—Scalia and Kennedy. “There’s some consistency in their approaches,” says Professor Smith. “And then in some cases it was surprising—Justice Gorsuch carried pro-defendant's rights in the Sixth Amendment right to jury trial and in interpreting vague criminal statutes even further than his predecessor Scalia had done. That raised a lot of eyebrows because here you have ‘conservative’ Gorsuch voting with four ‘liberals’ to protect defendants’ rights.”
That was no surprise to Professor Smith because, as he points out, although politics and ideology are relevant in these big, high-profile cases, “it's not all politics. Different legal views and different theories about how to interpret the Constitution come into play in different ways, and we saw that.”
2020 Census Question
Commenting on the decision about including a citizenship question on the 2020 Census, and the offsetting signals sent by the Court, Professor Smith had this to say: “The decision may look indecisive because Justice Roberts got four of the more ‘conservative’ justices to say that, assuming that government needs better information about citizenship, it was a rational judgment for the Administration to want to put a citizenship question on the census form answered by every American rather than try other methods.”
“However,” continues Professor Smith, “the explanation as to why we need a citizenship question given by Commerce Secretary Ross was a pretext; the only reason that the Secretary gave—that the Justice Department needs it for Voting Rights Act enforcement—was completely bogus. Basically, the Court majority said the secretary lied and pulled a fast one, as he was hiding the real reason behind it. So I think, to his credit, Chief Justice Roberts cast his lot for minimal honesty in government and the rule of law—at least to the extent that agencies need to be straight as to why they’re doing what they're doing.”
Subsequently, the Trump Administration has abandoned plans to add a citizenship question to the 2020 Census and instead will rely on existing government records to generate citizenship statistics.
A surprise decision for Professor Smith was the Court’s ruling on the constitutionality of a large World-War-I-era cross near a veterans memorial park in Bladensburg, Maryland.
“I was surprised by the decision on the Bladensburg cross,” says Professor Smith. “I was surprised that the decision decided so little—it basically ruled that a 90-year-old cross with a long-standing heritage from World War I, a time when crosses were uniquely associated with veterans who died, does not violate constitutional restrictions on church/state intermixing.”
The decision had particular interest to San Diegans who lived through decades of controversy about the Mt. Soledad cross.
“The Court certainly didn't say that new crosses can go up,” says Professor Smith. “And frankly, it is not even clear to me, had the Mt. Soledad cross not been resolved by settlement, what the answer would be as to its constitutionality. I expected the Bladensburg decision to decide more.”
When asked about the upcoming term, Professor Smith would not be drawn on any predictions but believes that there will be no shortage of interesting cases. He noted that the Court has already put its first major gun-control case, and the high-profile challenge to the Administration’s bid to end the DACA program, on its Fall 2020 docket.
“I don't have predictions, but there are always interesting cases in the pipeline that come along,” says Professor Smith. “I remember that we started in October with a lot of people saying ‘this is going to be a ‘nothing’ Term.’ It hasn't been the most amazingly startling Term but there certainly have been some big cases, as we have discussed.”