News and Commentary

Legal Experts: Kavanaugh Controversy Could Force Roberts Court Into Avoiding High-Profile Cases For A Few Years

No matter if Brett Kavanaugh is confirmed to the Supreme Court following unsubstantiated allegations that he sexually assaulted a girl at a pool party 35 years ago, the Democrats have potentially succeeded at two things: tarnishing his reputation and delaying the Roberts’ court from hearing high-profile cases for another few years.

According to The Hill, legal experts say that hearings on hot-button issues like abortion and religious freedom may have to wait a few years until the heat on Kavanaugh blows over.

“Depending on what happens with the rest of confirmation process, the court might feel kind of battered and like it needs to take things more slowly,” said Nicole Saharsky, a partner at the D.C. firm Gibson Dunn at a Georgetown Law panel discussion.

That course of action would fit in line with Justice Roberts’ character of keeping the Supreme Court apolitical. Irv Gornstein, executive director of Georgetown’s Supreme Court Institute, concurs with that assertion.

“I think he would be concerned that a series of 5-4 rulings, in which the five are Republican-appointed justices and the four are Democrat-appointed justices, would threaten to destroy that perception of the court,” he told The Hill in an email. “I don’t think the Chief Justice wants to be remembered as the Chief Justice who presided over the court at the time that the public lost faith in the court, and began to regard it as just another partisan institution.”

While Roberts may wish to hold on the big cases, he is just one vote of nine. For the court to hear a case, only four votes are needed. Should Kavanaugh be confirmed, the conservative wing will hold the majority with five justices. That doesn’t mean Kavanaugh won’t side with Roberts in his quest to keep the waters calm.

Donald Verrilli Jr., who served as solicitor general under former President Obama, said that if the court moves at a slower pace, a blockbuster case may have to wait five years.

“The question of what’s going to be on the docket isn’t always 100 percent in the control of the justices or even the chief justice,” he said, while speaking at Georgetown Law this week. “I think, for example, marriage equality — that issue got to the court faster I think than most members of the court would have preferred in the wake of Windsor. I anticipate that’s going to be true about abortion also.”