Nation’s Partisan Divide Widens as Supreme Court Veers Right

WASHINGTON — For President Donald Trump and for Senate Republicans, confirming Judge Brett Kavanaugh as a Supreme Court justice was a hard-won political victory. But for the conservative legal movement, it is a signal triumph, the culmination of a decades-long project that began in the Reagan era with the heady goal of capturing a solid majority on the nation’s highest court.

With Kavanaugh’s swearing-in, the Supreme Court will be more conservative than at any other time in modern history. By some measures, “we might be heading into the most conservative era since at least 1937,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.

The new majority is sure to move the law to the right on countless deeply contested issues, including abortion, affirmative action, voting and gun rights. And the victory will very likely be a lasting one. Kavanaugh, 53, could serve for decades, and the other conservative justices are young by Supreme Court standards. The court’s senior liberals are not. Justice Ruth Bader Ginsburg is 85, and Justice Stephen G. Breyer is 80.

There will be no swing justice in the mold of Anthony Kennedy, Sandra Day O’Connor or Lewis F. Powell Jr., who forged alliances with both liberals and conservatives. Instead, the court will consist of two distinct blocs — five conservatives and four liberals. The court, in other words, will perfectly reflect the deep polarization of the American public and political system. The fight to put Kavanaugh on the court only widened that division. The confirmation process was a bare-knuckle brawl, and the nomination was muscled through by sheer force of political will. All of this inflicted collateral damage on the court, leaving it injured and diminished.

It also left Chief Justice John G. Roberts Jr. in a tricky spot. He will acquire an additional measure of power, taking the seat at the court’s ideological center that had been held by Kennedy, whose retirement in July created the vacancy filled by Kavanaugh. But Roberts may want to use that power sparingly if he is to rebuild trust in an institution that has been discussed for months in almost purely political terms.

In the long run, though, there is very little doubt that Roberts will lead the court to the right. The only question will be the pace of change. “This is going to be an extremely conservative Supreme Court,” said Tracey George, a law professor and political scientist at Vanderbilt University. “Even if Trump is not re-elected and a Democrat is elected, that is not going to change.”

The justices insist that they discern and apply neutral legal principles without regard to politics. There is ample evidence to the contrary, but the court’s legitimacy rests on public confidence that the court is not, in the end, a political institution.

That confidence has occasionally been tested, notably in Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush. That was a 5-4 ruling, and it split along ideological lines. But two Republican appointees were among the dissenters, meaning the decision may have been political, but was not partisan.

Kavanaugh’s own testimony, laced with fiery attacks on Democrats, also undermined public confidence in the court, said Stephen Gillers, a law professor at New York University.

“It pulled the cloak off the Wizard of Oz,” he said. “The court has a mystique all its own. Kavanaugh’s behavior at the latest confirmation hearing shattered that mystique. It’s going to be hard for the court to come back from that.”

At a hearing devoted to the sexual misconduct allegations against him, a raw and angry Kavanaugh was disrespectful of the senators questioning him. He called the accusations “a calculated and orchestrated political hit” fueled by “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

That language was a striking departure from Kavanaugh’s judicial opinions and his patient and measured responses at his first set of confirmation hearings, before the accusations of sexual misconduct had surfaced. It was, instead, of a piece with his work on the Ken Starr-led independent counsel investigation of Bill and Hillary Clinton and, to a lesser extent, his time as an aide in the Bush White House, both partisan roles.

The accusations themselves, strongly denied by Kavanaugh but credited by much of the public, were a blow to the moral authority of the Supreme Court, particularly given that Justice Clarence Thomas faced claims of sexual harassment at his own confirmation hearings. It cannot help the court’s reputation that a third of its male justices have been questioned about sexual misconduct.

The court faces other challenges, too, as it is in danger of being perceived as not only political but also partisan. Kavanaugh will be the fifth member of a solid conservative majority, all appointed by Republican presidents. The members of the court’s four-member liberal wing were all appointed by Democrats.

That partisan divide is a fairly new phenomenon, said Lawrence Baum, a political scientist at Ohio State and an author of “The Company They Keep: How Partisan Divisions Came to the Supreme Court,” which will be published next year.

“The fact that ideological lines on the court have coincided with party lines since 2010 has given the court a more partisan image,” Baum said.

Kennedy was a moderate conservative who occasionally joined the court’s liberal wing in major cases on divisive social issues. There is little reason to think that a Justice Kavanaugh would forge similar coalitions. “Kavanaugh will clearly move the court even further in the politically conservative direction,” said Geoffrey R. Stone, a law professor at the University of Chicago. “The most obvious issues that will be affected by his appointment are on issues like abortion, affirmative action and the rights of gays, lesbians and transgender persons.”

Stone was one of more than 2,000 law professors who signed a letter opposing Kavanaugh’s confirmation, saying he “did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.”

There is little Roberts can do to counter the partisan impressions left by the confirmation process, Gillers said. “The best thing for the court as an institution to do is to continue on as if it never happened,” he said.

Roberts may take one step to minimize controversy. When he is in the majority, which he is around 90 percent of the time, he decides which justice will write the majority opinion. It will be surprising if he chooses to assign, say, a case concerning sexual harassment to Kavanaugh. The confirmation hearings may affect the relationship between the chief justice and his new colleague in another way, said Neal Devins, a law professor at William & Mary and the other author of “The Company They Keep.”

“Before the harassment charges, it is quite possible to imagine Kavanaugh being an intellectual leader who might well shape doctrine the way Scalia shaped doctrine,” he said, referring to Justice Antonin Scalia, who died in 2016. But in the aftermath of the accusations, Devins said, “Chief Justice Roberts might be more resistant to embracing those positions for fears that the court will be seen as highly partisan and politicized.”

After earlier divisive confirmations battles — when Judge Robert H. Bork was rejected by the Senate in 1987, leading to the appointment of Kennedy, and when Thomas was narrowly confirmed in 1991 — the court’s reputation took a hit.

“There was a lingering effect in terms of attitudes about the court,” George said. “But it didn’t linger long.”

There is a wild card in the digital era that may produce a more lasting effect this time, she added: video clips can live forever online. “People are sharing images of him from the hearing where he looks belligerent and certainly does not look judicial,” George said, referring to Kavanaugh. That’s not to mention a devastating portrayal of him on “Saturday Night Live” that has had 20 million views on YouTube.

Some commentators have argued that Kavanaugh would have to recuse himself from many kinds of cases, including ones involving Trump, Democrats and liberal advocacy groups. That view is not widely shared among experts in legal ethics.

“I don’t think the recusal risks are very high,” Gillers said. “He made broad accusations against large, undifferentiated groups of people. I don’t think any member of those groups would have grounds for seeking to disqualify him. The Clintons would, of course, but very few others.”

Justices decide for themselves whether to step aside from cases. Ginsburg has sat on cases concerning Trump and his administration after publicly criticizing him during the presidential campaign. In 2011, as the Supreme Court was preparing to hear a challenge to President Barack Obama’s health care law, some critics said Thomas should disqualify himself because his wife, Virginia, had worked with groups opposed to the law. Others said Justice Elena Kagan should not hear the case because she may have been involved in aspects of it when she was U.S. solicitor general. Both justices sat on the case.

In his year-end report in 2011, Roberts said justices could be trusted to decide for themselves whether they should recuse — because they have been vetted by the Senate.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”