The hidden silver lining for Democrats if Kavanaugh is confirmed

The debilitating political rancor over the Kavanaugh confirmation has deepened the perception that the court is caught up in partisan politics, and statements in Kavanaugh’s testimony suggested that he will bring strong partisan feelings with him when he joins the court (so much so that Kavanaugh felt the need to write an opinion piece expressing regrets about saying “things I should not have said”). We can expect Roberts to fight that perception. He undoubtedly would prefer to tie his legacy to efforts in making the court appear above politics, not to presiding over the most partisan court in the nation’s history.

For that reason, Roberts might try to guide the court’s agenda away from abortion, campaign finance and other cases where the risk of partisan division is great. Through his presiding role in the court’s conferences and his assignment of court opinions, he might redouble his efforts to find compromises that avoid party-line votes in cases. And to the same end, he may consciously soften his own positions on some issues.

None of this means that Roberts will become a judicial moderate, let alone a liberal. He will continue his efforts to move judicial doctrine to the right on issues that he cares about. The appointment of a strong conservative to the court will enhance his success in those efforts and will have a substantial impact on the court’s decisions. But because Roberts takes his responsibilities as chief justice so seriously, the accession of Kavanaugh might not affect the court’s policies as much as many observers expect.

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