Amid the wailing and gnashing of teeth from the political Left and the triumphalist trumpeting from the political Right regarding the nomination of Judge Brett Kavanaugh to the Supreme Court, one question has gone missing: What, exactly, will the Supreme Court look like once Kavanaugh joins?
Those on the left, like those on the right, suggest that Kavanaugh will be a transformational pick. They believe Roe is in danger, that Citizens United will be dramatically strengthened, that religious believers will be handed carte blanche, and all the rest.
Here’s the truth: If there’s one proposition that distinguishes Kavanaugh from his more militant colleagues, it’s his unique capacity to write specific, detailed decisions that knock down trees while leaving forests intact. Kavanaugh’s opinions tend not to be ringing endorsements or rebukes of the Justice Scalia or Justice Thomas type; they tend to be narrowly tailored decisions that recall Chief Justices Roberts and Rehnquist.
Now, it’s possible that Kavanaugh has hidden his light under a bushel, because he’s an appellate court judge bound by precedent. It seems more likely that he’s a fan of Roberts-type judicial restraint, which means pruning back law he sees as violating the Constitution rather than decimating it and salting the earth.