President Trump’s second Supreme Court nominee, Brett Kavanaugh, will have the power to change the country in dramatic and regressive ways if he is confirmed. Under the Court’s prior balance, before Justice Anthony Kennedy retired, it used its power to gut the Voting Rights Act, severely limit the Affordable Care Act’s Medicaid Expansion, allow massive corporate pollution, approve racist GOP gerrymanders, made reproductive rights nearly impossible to exercise in most states and dismantled unions. Under a court where Chief Justice John Roberts, rather than Kennedy, is the swing justice, it stands to reason that the Court will go further, and may even drag the country into a new “Lochner Era”—using novel and pretextual theories of constitutional meaning to strike down laws that were democratically enacted to protect workers.Worst of all, three of these judges will have been appointed by presidents who lost the popular vote.
The first Lochner Era began in 1905 and stretched well into the 1930s, when conservative justices read imaginary rights into the due process clause to invent new Constitutional doctrines whole cloth, like “Freedom of Contract,” which they used to void labor laws. In the actual case of Lochner v New York, from which the era draws its name, justices declared a workplace safety law limiting working hours in bakeries to ten hours a day and sixty hours a week unconstitutional. In Hammer v Dagenhart, justices struck down federal laws banning child labor. They used these precedents to strike down minimum wage laws in Adkins v Children’s Hospital. Slate legal writer Mark Joseph Stern worries that a new Lochner Era is on the horizon, predicting, “Republicans will mount a legal challenge to any healthcare bill, including Medicare for all, that Democrats manage to pass in the future. King v Burwell proved that conservative judges will accept even a patently frivolous attack on the ACA in order to prevent the government from expanding access to healthcare.”
Data for Progress gathered data political scientists use to measure ideology to determine the ideologies of Supreme Court justices and map those ideologies on to a common space with politicians. These scores are called “Judicial Common Space” scores. The political scientist Lee Epstein developed the methodology, which allows us to estimate how much the Court’s ideology will shift. Epstein designed her estimates to be in line with roll call voting by members of Congress (normally measured using DW Nominate). Clearly, any attempt to compare judges to politicians, or even map ideology in one dimension will be fraught. But it still gives us a rough sense of ideology. We used the most recent Judicial Common Space scores, which are for the 2016 term. It is worth noting that Kennedy signed onto more right-wing decisions in his last term (such as Epic Systems and Janus) so the measure may overstate his liberalism. However, these data still give us a good sense of what is in store if and when Kavanaugh replaces him.
Had the Senate confirmed Merrick Garland in 2016, these estimates suggest he would have ruled in the mode of David Souter, who was appointed by a Republican president, but moved leftward over his career. Kavanaugh, by contrast, is more conservative than both Neil Gorsuch and Antonin Scalia, and closer to Clarence Thomas than both of them. Maya Sen, a Harvard University political scientist who studies the judiciary tells us, “research shows that the majority opinion reflects the preferences of the median member of the majority coalition, we might expect more conservative opinions than in the past,” which would lead to a “shift quite a bit to the right.”
Our data also makes us skeptical that politicians like Sen. Susan Collins (R-ME) or Sen. Jeff Flake (R-AZ) will withhold their support for Kavanaugh, no matter their concerns. History suggests that politicians rarely vote against Supreme Court nominees when their party controls the presidency and our data suggests there is little reason for them to do so: these senators are far closer ideologically to a Kavanaugh Supreme Court than they would be to a Garland Supreme Court. Collins’s DW Nominate score of .109 (indicating a right of center ideology) is still quite close to the projected ideological mean of a Supreme Court with Kavanaugh on it (.073). In fact, a Kavanaugh Court is closer to her than was the Kennedy Court (-.009). A court with Kavanaugh and Garland (rather than Kavanaugh and Gorsuch) would be further away from her: the average ideology of that Court would be -.034, further from her. Jeff Flake’s DW Nominate score is .855, indicating that he is more conservative than Brett Kavanaugh or any of the other political actors Data for Progress studied, including Clarence Thomas, the most conservative member of the current court (.738), and Ted Cruz at (.836). That is, Collins would be basically fine with a Court including Kavanaugh, and Flake’s ideal Court would consist exclusively of Justices with his ideology.
A fully empowered Trumpist Court would have immense power at its disposal and could shift public policy dramatically to the right—in part, by changing the mix of cases that the Court hears. Don’t just think “overrule Roe v. Wade,” for example—which by itself would simply return the question of abortion to state legislatures. Think instead “a robust jurisprudence of fetal personhood,” which would forbid abortion on the grounds that it deprives unborn children of life without due process of law. Or how about a rule that permits people with religious objections to a civil-rights statutes to refuse to comply with them, on free exercise grounds? Forget Citizens United—imagine the Court striking down all campaign contribution limits as unconstitutional, using what Justice Elena Kagan has called conservatives’ “weaponized First Amendment?”
Those are just a few starting points. Conservatives in the United States have a long, long list of objectives sitting on shelves awaiting a day like today. Bans on insider trading? Unconstitutional on free-speech grounds. Environmental regulations? Unconstitutional “takings” of private property without compensation. The Consumer Protection Financial Bureau (CFPB)? An unconstitutional delegation of the President’s powers as the unitary Executive. In addition, Kennedy was, for a conservative, moderate on race issues. He supported some affirmative action and supported the Fair Housing Act. With him gone, a conservative Court could gut anti-discrimination protections.
There are good reasons to believe Kavanaugh would support these attempts to undermine democratically-elected politicians. He believes the CFPB is unconstitutional, that Republican presidents can simply ignore the fact that the Affordable Care Act is the law of the land, that net neutrality represents an unconstitutional violation of free speech.
Marshall Steinbaum, an economist at the Roosevelt Institute who studies antitrust said, “One of the main channels by which the right has re-constructed economic policy to favor the rich is by convincing the federal judiciary that ‘economics’ means plutocracy.”
“They’ve seeded the judiciary with the products of their own ‘law and economics’ programs,” Steinbaum adds, “which recent revelations about corruption in academia reveal to be ideological indoctrination camps erected by the Koch Brothers and their allies.”
To the extent that there is any positive news, Democrats seem to be waking up to the threat the Court poses. Recent polling from Huffpost shows that Democrats no longer approve of the Court and now believe it is too conservative (our research suggests this is a recent development). Groups like Demand Justice, which are fighting to convince Democrats to hold the line, are important, too. Democrats need to discuss the Court more, and turn bad decisions (like Janus and the Muslim ban) into symbols of right-wing corruption of the judiciary.
Our analysis suggests that in the past, Democrats were more likely to praise liberal decisions than condemn conservative ones. Senators like Mazie Hirono, Kirsten Gillibrand, and Elizabeth Warren have led the way by making a public case that Trump’s judges are dangerously right wing and threaten workers. Gillibrand tells us, “If Brett Kavanaugh is confirmed, he would tip the balance of the Supreme Court even more against workers’ rights, civil rights, and women’s rights for decades to come. I’m going to fight with every ounce of energy I have to stop this nominee. Because I don’t trust that he will defend women’s rights. I don’t trust that he will defend LGBT rights. I don’t trust that he will defend voting rights, or civil rights, or workers’ rights. We can’t have this nominee on our Supreme Court.”
Only by taking unjust decisions and turning them into emblems of injustice can Democrats finally begin making their voters take the judiciary as seriously as Republican voters do.
Jordan Klein is senior adviser to Data for Progress. He is a statistician, data scientist, and survey methodologist. He tweets at @J_D_Klein.
Ian Samuel is a law professor and a former clerk for Justice Antonin Scalia. He also hosts the popular podcast First Mondays, which covers the Supreme Court. He tweets at @isamuel.
Sean McElwee is a co-founder of Data for Progress. He tweets at @SeanMcElwee.