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The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

On This Day in Supreme Court History—October 6, 1991

On this day in 1991, National Public Radio first broke the story of Anita Hill’s allegations of sexual harassment against Supreme Court nominee Clarence Thomas.  

After graduating from Yale Law School, Hill worked as special counsel to Thomas, who was then head of the Office for Civil Rights in the U.S. Department of Education. She then became Thomas’ personal assistant when he became the chair of the U.S. Equal Employment Opportunity Commission (EEOC). According to Hill, during her time working with Thomas, he repeatedly asked her out and, when she refused, he discussed graphic sexual content in front of her. In 1983, after hospitalization for stress induced stomach pains, Hill resigned from her job at the EEOC and became a law professor. Hill explained that she continued to work with Thomas despite being subjected to repeated harassment because she was concerned about her job prospects and she feared professional retribution.

Photo Credit: New York Times

In the summer of 1991, President George H.W. Bush nominated Thomas to replaced Justice Thurgood Marshall, who was forced to retire for health reasons. The nomination was controversial from the beginning. Thomas had been a judge for only a year and a half, and his conservative legal views contrasted sharply with the man whose seat he would occupy. Even before Hill’s accusations came to light, Thomas’s nomination faced considerable opposition. On September 27, after the Senate Judiciary Committee divided on whether to send the nomination to the floor with a favorable recommendation, it forwarded the nomination without any committee recommendation.

HIll initially refused to tell her story when approached by Democratic staffers. She said she changed her mind after further considering her experiences with Thomas and the Supreme Court’s role in protecting workplace rights. Even then, Hill did not intend to go public with her accusations; she wanted the affidavit she submitted to the Judiciary Committee to remain confidential. Only when it was leaked to the press did Hill decide to discuss her story publicly.

On October 6, 1991, NPR aired Nina Totenberg’s interview with Hill in which she discussed her experiences with Thomas. As a result, the Senate Judiciary Committee reopened Thomas’ nomination hearings on October 11, and over 20 million Americans tuned in to the nationally televised hearings over the course of three days, at which both Hill and Thomas testified. Thomas denied any wrongdoing and denounced the hearings as a “high-tech lynching.”

The Senate  eventually confirmed Thomas 52-48, almost exclusively along partisan lines. Many credit Hill’s testimony and the all-male Judiciary Committee’s dismissive treatment of her with helping usher in the “Year of the Woman” in the 1992 elections. The elections produced a then-record 47 women in the House of Representatives along with an additional 4 Senate seats held by women. The hearings also raised awareness regarding the issue of sexual harassment. Congress amended the Civil Rights Act in November of 1991 to allow compensatory damages, rather than just back pay, for victims of discrimination, including those of sexual harassment. Sexual harassment complaints to the EEOC more than doubled in the five years following Hill’s testimony.

Anita Hill, today an author, professor, and advocate for women’s rights, has recently spoken out in support of Christine Blasey Ford, who has accused Supreme Court nominee Brett Kavanaugh of sexual assault when they were high school students..

This Post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

First Week of OT 2018

The Supreme Court’s October 2018 Term began Monday with an 8-Justice Court. The Court heard oral argument in six cases during this first week of the Term.:

The Court will also hold a Conference on Friday to discuss further cases to be added to the Term Calendar. SCOTUSblog’s list of petitions to watch, which are cases that are pending certiorari before the Court, can be found here.

Written by Eva Dickey, edited by Matthew Webber, and overseen by ISCOTUS Co-Director Carolyn Shapiro

The Kavanaugh Nomination—Where Things Stands

Last Thursday’s explosive Senate Judiciary Committee hearing is still reverberating across the political landscape. What took place is sure to have significant ramifications for the upcoming midterm elections, for sexual politics in the coming years, and for future Supreme Court nominations hearings. Still unclear, however, is whether it changed the course of what had just weeks ago appeared to be a smooth path to the Supreme Court for Judge Brett Kavanaugh.

Image result for kavanaugh confirmation

The most important development since Thursday’s hearing was the decision of the Republican-controlled Judiciary Committee to put off the vote on the nomination for a week to give the FBI time to investigate some of the allegations made against Kavanaugh—a potentially significant concession to Kavanaugh’s critics. Senator Jeff Flake demanded the delay and investigation, saying that Kavanaugh would not have his vote without it.

But now that the FBI has completed its investigation and submitted its report, we seem to have returned back to where we were a week ago. Most Senate Republicans believe the FBI report provides further justification for their support of the nominee; most Senate Democrats criticize the investigation as insufficient and argue that the report gives them nothing to make them reconsider their opposition to the nominee. And all eyes are on a handful of Senators—Democrat Joe Manchin of West Virginia and the Republicans Jeff Flake of Arizona, Susan Collins of Maine, and Lisa Murkowski of Alaska—who have yet to say which way they’re planning to vote.

Yesterday gave us yet more turns in this unfolding drama. Judge Kavanaugh took the extraordinary step of publishing an op-ed defending himself. The Wall Street Journal ran Kavanaugh’s op-ed under the headline “I am an Independent, Impartial Judge.” “I was very emotional last Thursday, more so than I have ever been,” Kavanaugh wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.” He concluded by reiterating his commitment to “an independent and impartial judiciary” and promising to “keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.”

Meanwhile, retired Justice John Paul Stevens spoke out against Kavanaugh, saying that the nominee’s partisan statement at his hearing last week should disqualify him from serving on the Supreme Court. Stevens said that if he were to reach the Court, Kavanaugh’s words would require him to recuse himself from a number of cases, and “it’s not healthy to get a new justice that can only do a part-time job.”   

Senate Republican leaders say they plan to hold a vote on the confirmation tomorrow.

This post was written by ISCOTUS Fellow Elisabeth Heiber, Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt and edited by ISCOTUS Editorial Coordinator Matthew Webber, Class of 2019.

New Cert Grants from SCOTUS

Although all eyes have been on the Kavanaugh nomination, the Supreme Court has continued to go about its business. It will have its first day of oral arguments on Monday, October 1. (For an in-depth review of the upcoming Term, listen to this National Constitution Center podcast.)  And last week, the Court announced that it would be adding several more cases to its docket. In Tennessee Wine and Spirits Retailers Association v. Byrd, the Court granted the Tennessee Wine and Spirits Retailers Association’s petition for writ of certiorari. As the Wine Spectator explains, Tennessee law requires a person to reside in Tennessee for two years before being eligible for a retail license to sell liquor to consumers. The Sixth Circuit, however, held that this law violates the dormant Commerce Clause. This holding created a circuit split, as the Eighth Circuit has held that such laws are valid exercises of the authority granted to the States via the Twenty-first Amendment, which ended prohibition and gave states the power to control the distribution and sale of liquor within their own borders. The decision in this case could have implications for the twenty-one other states with similar durational-residency laws.

The Court will also hear a case for which Supreme Court nominee Judge Brett Kavanaugh wrote the opinion in the Court of Appeals for the District of Columbia. The Court granted cert in Azar, Secretary of Health and Human Services v. Allina Health Services, in which the D.C. Circuit held that HHS should have conducted a notice-and-comment process before providing instructions to a Medicare Administrative Contractor that might have changed reimbursement rates.

The Court also granted certiorari in Home Depot U.S.A. Inc. v. Jackson, involving the removal of class action claims from state to federal court, and in Thacker v. Tennessee Valley Authority, which addresses the scope of federal sovereign immunity.

Finally, the Court denied the last appeals of Daniel Acker to stay his execution, allowing Texas to carry out Mr. Acker’s execution on Thursday.

Written by Zoe Arthurson-McColl and Bridget Flynn, edited by Matthew Webber; overseen by ISCOTUS co-director Carolyn Shapiro.

More on the Kavanaugh Allegations

Judge Brett Kavanaugh’s nomination, and sexual misconduct claims against him, have continued to dominate this week’s news. When we left off last Thursday, Dr. Christine Blasey Ford was scheduled to testify before the Senate Judiciary Committee on Monday, September 24, but had asked for a thorough FBI investigation prior to her hearing. Her request called into question whether she would testify at all and led to a round of negotiations about the date on which she would appear before the Judiciary Committee. News broke early Sunday that Dr. Blasey Ford had committed to testify on Thursday, September 27, but there has been no FBI investigation. More on the hearing below.

Later Sunday, The New Yorker published a story about a second woman, Deborah Ramirez, coming forward with an accusation of sexual misconduct against Kavanaugh from his time at Yale University in the early 1980s. The  article, by Ronan Farrow and Jane Meyer, walks the reader through events from the time The New Yorker contacted Ms. Ramirez after hearing that she may have been involved in the incident. The article recounts her six-day process of considering whether she wanted to tell her story and her concerns about her memory of the alleged incident because she had been drinking at the time. This new accusation, it has been pointed out, is more uncorroborated than Dr. Blasey Ford’s. Nevertheless, on Monday James Roche, Brett Kavanaugh’s freshman-year roommate, released a statement in which he said that he believed Ms. Ramirez’s story – based on his time with both Ms. Ramirez and Kavanaugh. Tuesday, President Trump criticized both Ms. Ramirez, whom he said was “totally inebriated and all messed up,” and Democrats generally, calling them “con artists.”

The avalanche of news continued on Monday, starting with The New York Times publishing a story about a reference on Kavanaugh’s high school yearbook page in which he referred to himself as a “Renate Alumnius,” apparently in reference to Renate Schroeder Dolphin, one of the 65 signatories of the letter in support of Kavanaugh in the wake of Dr. Blasey Ford’s allegations. There have been varying explanations for exactly what the term meant.

On Monday evening Kavanaugh appeared, along with his wife Ashley, for an unprecedented interview on Fox News, as discussed by Professor Christopher Schmidt, Co-Director of ISCOTUS here. During the interview, Kavanaugh discussed his high school and college years, claimed never to have had so much to drink that he blacked out, and denied sexually assaulting anyone. Some former classmates subsequently took issue with his descriptions of his drinking, as reported by the Washington Post.

On Tuesday, GOP leaders announced that they had hired a “female assistant” to question both Dr. Blasey Ford and Kavanaugh on Thursday. The individual hired is Rachel Mitchell, a sex crimes prosecutor from Maricopa County, Arizona. Senator Grassley, Chair of the Senate Judiciary Committee also released the format for the hearing, which provides each senator only five minutes to question each witness, although the Republican senators are expected to yield their time to Mitchell. Grassley rescheduled the committee vote for Friday, less than 24 hours after Dr. Blasey Ford’s testimony in front of the committee, although he can postpone the vote again.

More explosive news broke on Wednesday, when Michael Avenatti, the attorney who represents Stormy Daniels in her lawsuit against Donald Trump, released a sworn declaration from his client Julie Swetnick, a current government employee. (Avenatti had been alluding to this client without naming her for several days.) Swetnick states that she witnessed Kavanaugh, with his friend Mark Judge, very drunk and groping or grabbing young women. She also alleges that she witnessed Kavanaugh and Judge attempting to make girls so drunk or to drug them so that they could be gang-raped. She alleges witnessing Kavanaugh and other boys waiting outside rooms to have a “turn.” Finally, she alleges that she herself was the victim of such a gang-rape and that Kavanaugh was present, although she does not say whether he in fact raped her. Kavanaugh promptly denied the allegations, stating, “this is ridiculous and from the Twilight Zone. I don’t know who this is and this never happened.”

As of now, the Thursday hearing on Ford’s charges is still scheduled to proceed.

Check back with ISCOTUSnow for more updates on the Kavanaugh accusations and hearing.

ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, drafted this post which was edited by ISCOTUS Editorial Coordinator Matthew Webber, Class of 2019. ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro oversaw the post.

 

On This Day in Supreme Court History—September 26, 1986

On this day in 1986, Antonin Scalia was sworn in as an Associate Justice of the United States Supreme Court. At the same ceremony, William Rehnquist was sworn in as the sixteenth Chief Justice of the United States. President Ronald Reagan used the occasion to praise the two men for their commitment to “judicial constraint.” “They knew that the courts, like the Constitution itself, must not be liberal or conservative,” the President stated. “The question was and is, will we have government by the people?”

Photo Credit: https://www.reaganlibrary.gov/photo-galleries/supreme-court

Rehnquist had been an Associate Justice on the Court since 1971. He had established a reputation as a solid and sometimes defiantly conservative vote on a range of issues. He often stood alone in dissent, particularly in his early years on the Court. In the coming years, the Rehnquist Court would move closer to his position on a range of issues, with decisions limiting congressional authority and constraining the recognition of unenumerated constitutional rights. Rehnquist remained in dissent in numerous significant cases, however, including those involving affirmative action and abortion rights. On some issues, such as women’s rights, Rehnquist showed a willingness to reassess his earlier positions.

Scalia was also recognized as an outspoken judicial conservative, a reputation he secured during his years as a law professor, a lawyer in the Nixon Administration, and, between 1982 and 1986, as a judge on the U.S. Court of Appeals for the D.C. Circuit. Scalia’s most lasting mark on the Court likely will be based not by his opinions for the Court—unlike Rehnquist, he wrote relatively few major majority opinions during his tenure—but by his advocacy for originalism and textualism as methods for interpreting legal texts and by his forceful and often biting writing style.

Rehnquist would serve as the Chief Justice for 19 years, his tenure ending when cancer took his life in 2005. Scalia served on the Court for 30 years, until his death from a heart attack in 2016.

 

This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

The Latest on Cameras in the Supreme Court

Supreme Court nominee Brett Kavanaugh broke precedent during his confirmation hearings by declining to take a stance on cameras in the Supreme Court. Kavanaugh acknowledged that many recent nominees have suggested during confirmation hearings that they would support video coverage of the oral arguments at the Court, but then promptly reversed themselves upon taking a seat on the bench.  

Image result for cameras in supreme court“I know nominees who’ve sat in this chair in the past have expressed the desire for cameras in the courtroom, only to get to the Supreme Court and really change their positions fairly rapidly,” Kavanaugh said. The pattern gave him “some humility” about taking a stance on the issue before serving on the Court.

Kavanaugh also declined to express support for televising opinion announcements.

The public supports bringing cameras to the Supreme Court, according to a recent survey. C-SPAN commissioned research-based consultants PSB to conduct the poll. Based on online interviews of 1000 likely voters from August 2018, 64% agree that the U.S. Supreme Court should allow television coverage of its oral arguments.  If the Court declines to allow televised coverage, 71% believe it should release audio recordings on the same day arguments took place.

Other interesting findings from the survey:

  • 69% had been following the news about President Trump’s nominee to the bench;
  • 91% agreed that decisions made by the U.S. Supreme Court affect their everyday lives as citizens.

In light of the finding that 56% of respondents think that the Court is split politically, PSB Senior Strategist Adam Rosenblatt told Observer, “People are just assuming that they’re partisan entities. That has very serious implications.”

The Court appears unlikely to change its anti-camera policy soon. As CNN notes, none of the current justices support the idea. Justices Kagan and Sotomayor, who expressed support for cameras in the Supreme Court during their confirmation hearing,  both publicly stated on the same day in 2015 that they no longer favor the idea. Justice Gorsuch said during his confirmation hearing merely that he would approach the idea with an “open mind” but has not said anything more about the issue since.

 

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Kavanaugh Nomination Update—September 20, 2018

Amid the sexual assault allegations against Judge Kavanaugh, there have been renewed calls for the Senate to delay its vote on the nominee. Democratic Senator Dianne Feinstein issued a statement on Sunday in which she expressed her “support” for Kavanaugh’s accuser, Christine Blasey Ford, the psychology professor who only went public with her accusations because she felt  “her civic duty outweighed her desire for privacy.” Feinstein urged the Senate to let the FBI conduct an investigation into the allegations before moving forward. Her statement quickly drew criticism from Kavanaugh supporters, who described it as a “Hail Mary pass” and questioned the timing of Feinstein’s decision to release Ford’s letter describing her accusations.

Opinion has been sharply divided on how the Judiciary Committee should deal with this new development. David Frum, writing in the Atlantic, urges a delay because the Senate does not have the proper resources to conduct a thorough investigation into the issue. When it come to dealing with the assault allegations, he wrote that the Republicans on the Judiciary Committee are “the wrong men in the wrong job at the wrong time.” Kavanaugh supporters, by contrast, believe the Democrats are using the accusations as a way to “run out the clock,” hopefully delaying the vote until after the midterm elections. Some are predicting that a process that seemed fast-tracked to place Kavanaugh on the Supreme Court by the opening of its new term on October 1 now may end with Kavanaugh never making it to the Court.

On Monday, the Senate announced that it would continue the nomination hearings the following Monday, September 24, when it planned to hear from both Judge Kavanaugh and Dr. Ford (click here for a more detailed discussion of the upcoming hearings). Blasey has now indicated she wants an  FBI investigation to be completed before she testifies. Kavanaugh has “categorically and unequivocally” denied the allegations as “completely false.”  

Those who have demanded a thorough investigation into Ford’s accusations have warned that the process should learn from the experience of the Clarence Thomas hearings of 1991 and avoid the kind of vilification of the accuser that occured then. Anita Hill, who came forward with allegations of sexual assault against Thomas (click here for a refresher on those events), has spoken out, discussing how the Senate might learn from the past and do a better job handling these hearings . So far, the White House has seemed open to these kinds of recommendations. Presidential advisor Kellyanne Conway said that Ford “should not be insulted, and she should not be ignored.” President Donald Trump, while reiterating his support for Judge Kavanaugh, also  remarked that if Ford “ makes a credible showing, that will be very interesting, and we’ll have to make a decision.”

 

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Kavanaugh Hearings: Roundup

Supreme Court nominee Judge Brett Kavanaugh’s confirmation hearing last week was highly contentious from the very start. The first day is generally limited to opening statements by the members of the Senate Judiciary Committee, formal introductions of the nominee, and the nominee’s own opening statement. But as CBS reports, day one began with Democratic senators’ calls for motions to adjourn the hearing due to the lack of disclosure of documents relating to Kavanaugh’s time in the White House and the abrupt release of more than 40,000 additional documents the night before. (For background on the documents controversy, see this ISCOTUSnow post.) Democratic Senator Kamala Harris stated “the American people deserve better than this,” in reference to the amount of records missing, and questioned Kavanaugh’s “loyalty” to the president and the Constitution. Fellow Democrat Cory Booker had the same concerns, and brought up the likely political ideological shift of the Court if Kavanaugh is confirmed. Republican Senator Ben Sasse stated the Democrats concern is “deranged,” and that they engaged in “90 minutes of theatrics” in the “circus” of a hearing. Fellow Republican Senator Ted Cruz remarked that the documents are “irrelevant to what Kavanaugh thinks, believes or has said.”

Day two was more focused on Judge Kavanaugh himself, as he faced questions from the senators about his judicial philosophy and his approach to various legal issues. According to the New York Times, Judge Kavanaugh declined to answer whether he believed Roe v. Wade was decided correctly, although he described Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the “core holding” of Roe, as  “precedent on precedent” regarding abortions, entitled to judicial respect. However, in a past email, then-White House Staff Secretary Kavanaugh said, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” (Judge Kavanaugh’s comment was responding to an op-ed drafted internally at the White House that was ultimately edited. The email’s original opening line stated, “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”) As the New York Times’ Charlie Savage and Sheryl Gay Stolberg pointed out, this email became publicly known only after Judge Kavanaugh said that Roe is “settled as precedent of the Supreme Court.”

 

Kavanaugh stated he would not answer “hypothetical questions” such as if President Trump could pardon himself or pardon associates who may testify against him. He also stated that after watching President Bush respond to 9/11 and its aftermath, he changed his mind regarding aggressive investigations of the President, such as the Ken Starr investigation of President Clinton’s affair with Monica Lewinsky, in which he participated. He concluded that investigations are too distracting and he argued that Congress should consider enacting a statute protecting  sitting presidents from active investigations. The Washington Post reports Kavanaugh declined to commit to recuse himself from cases involving investigations into President Trump’s conduct.

 

On a more personal note, as NPR reports, Kavanaugh also mentioned his history of hiring a large number of women law clerks, and remarked his mother, also a judge, showed him “the importance of women’s equality.”

Day three continued the questioning by the committee, and The New York Times reports Kavanaugh refused to state whether he believed Obergefell,the landmark case establishing a right to same-sex marriage was correctly decided. In response to questioning regarding his view of special counsel, Kavanaugh responded he is “not afraid” to “invalidate executive power when it violates the law.”

Notably, on the last day of the hearing, former Nixon era White House counsel John Dean testified and stated Kavanaugh’s confirmation would lead to the “most presidential-powers friendly” Supreme Court, according to The Washington Post. The day was filled with testimony by witnesses for and against the nominee. The American Bar Association remarked on their unanimous rating of “well qualified” of Kavanaugh, and one of their officials stated he is “absolutely” a mainstream jurist. His previous clerks praised the judge as a mentor and teacher, and former U.S. Solicitor General Theodore Olson stated he has heard nothing but the “highest praise” for his as a “human being, a lawyer, and a judge.” Congressional Black Caucus chairman Cedrick Richmond called Kavanaugh a “grave legal danger,” and other opposing witnesses, including a survivor of the Parkland, Florida shootings and a child with a serious medical conditions voiced concern with Kavanaugh’s positions on key rights affecting them, such a gun laws and access to healthcare.

 

Michael Karnish of the Washington Post reports that Vermont Democratic Senator Patrick J. Leahy, a minority member of the Senate Judiciary Committee, said on Friday—the day after the final day of the confirmation hearing—that Judge Kavanaugh likely knew about stolen Democratic emails from a shared server by GOP staffers. However Kavanaugh, denied recalling anything about it, and denied knowing what Leahy was referring to. However, In 2004 and 2006, when Kavanaugh sat for nomination hearings to his appointment to the federal bench, Leahy questioned Kavanaugh about his knowledge of the emails. Kavanaugh only disclosed some knowledge of their content and insisted he knew about the ordeal when it was released to the public Miranda viewed the emails on the server. However, newly disclosed emails may show Kavanaugh knew more than he originally alluded.

ISCOTUS Fellows Matthew Webber and Michael Halpin, Chicago-Kent Class of 2019 and 2020 respectively, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.

Kavanaugh Hearing Preview

Less than two months after President Trump announced his nomination, Judge Brett Kavanaugh will begin his confirmation hearing to sit on the Supreme Court on September 4.  The Senate Judiciary Committee has a dedicated webpage about the hearing here. On the first day, we can expect to hear opening statements by committee members, as well as from the nominee. Questioning will likely begin on the following day. On Friday, third-party witnesses will testify both in support of and in opposition to the nomination. (One of the more unusual witnesses in opposition will be John Dean, who served as White House Counsel to President Richard Nixon.) Because the Republican-controlled Senate eliminated the filibuster during the confirmation process for Justice Neil Gorsuch, Kavanaugh needs only 50 votes to be confirmed. Republicans hold 50 seats, although once the Arizona governor appoints a replacement for recently deceased Senator John McCain, the GOP will have 51 seats.

As Adam Liptak of the New York Times writes, Kavanaugh’s nomination has the potential to change the ideological direction of the Supreme Court. Not surprisingly, the nomination quickly drew supporters and opponents from both sides of the political spectrum.The National Rifle Association has been extremely vocal about their support for Judge Kavanaugh, having launched a seven-figure campaign calling for his confirmation (despite recent claims of “deep financial trouble”). Several pro-choice groups have come together with a campaign called “Rise up for Roe,” touring several cities to highlight the threat that Kavanaugh poses to abortion rights and Roe v. Wade. Some legal scholars have criticized his views on separation of powers as being one-sided, and religious groups have mused about how a Kavanaugh confirmation might lead the Court to “become more accommodating to conservative religious interests.” Coverage of the debates on the issues that underlie these movements is discussed in more detail below.

Separation of Powers and Individual Liberty

At the July 9 event when the President introduced Judge Kavanaugh as his nominee, Kavanaugh was quick to express his views on liberty, stating “I teach the Constitution’s separation of powers protects individual liberty” (click here to watch his full remarks.) ISCOTUS co-director Carolyn Shapiro has criticized his views as one-sided, solely concerned about how government regulations impede liberty, and ignoring the idea that regulations can actually enhance liberty. Her article compares his anti-regulatory views in PHH Corp. v. CFPB, which addressed the Consumer Financial Protection Bureau, with his willingness to uphold restrictions on abortion in Garza v. Hargan, and it explains how his views on the regulation-liberty relationship could also have implications for the Mueller investigation

On the other side, Peter Wallison in the Wall Street Journal praised Judge Kavanaugh’s recognition that regulations must come from democratically accountable entities, and looked forward to a Supreme Court that will cut back on deference to administrative agencies. Finally, some note that such reduced deference would apply to regulatory and deregulatory efforts alike, so might not lead to as much deregulation as some hope or fear.

Roe v. Wade

Abortion will be at the center of much of the hearing, although Kavanaugh is unlikely to provide a straightforward answer about his views on Roe v. Wade or the abortion cases decided since then.  In Garza, although Judge Kavanaugh didn’t explicitly deny the teenager’s right to obtain an abortion, he appeared sympathetic to the government’s position that it could discourage, and perhaps even prevent, her from having an abortion. He has also publicly stated his admiration for then-Justice William Rehnquist’s dissent in Roe, as this Vox article explains, and at Slate, Dahlia Lithwick and Jed Shugerman argue that Kavanaugh is clearly anti-choice. Indeed, President Trump himself promised to appoint justices who would “automatically” overturn Roe. Anti-abortion groups greeted Kavanaugh’s nomination with excitement.

But much of the discussion at the hearing will focus not on abortion itself but rather on stare decisis, the principle of standing by things decided. Stare decisis is a central principle in American law, but it is not absolute. In fact, this last Term, the Supreme Court overruled several longstanding precedents. In 1992, on the other hand, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court declined to overrule Roe on grounds of stare decisis. And even without overruling Roe outright, the Supreme Court could approve increasingly rigid restrictions on abortion.

Law and Religion

Judge Kavanaugh has been described as a warrior for religious liberty, with many praising what they see as his consistent support for and dedication to protecting religious liberty. That support, though, has others concerned about the collateral consequences of this for other individual rights, given (among other reasons) his support for the Court’s decision in Hobby Lobby. In Hobby Lobby, the Court held that a corporation has constitutional religious rights, and thus could deny employees healthcare coverage for birth control to which they would be otherwise entitled because of the owners’ religious objections. Click here for a more detailed discussion of specific cases that give some clue as to how he might rule on religious freedom issues in the future.

The Second Amendment, Guns, and the NRA

Judge Kavanaugh’s position on the Second Amendment has been described as so radically conservative that he is “outside the mainstream” — a term no doubt being used in an attempt to rally opposition to his confirmation similar to how Democrats used it to block Robert Bork’s confirmation 30 years ago. Some fear that gun safety laws could be struck down, such as the ban on semi-automatic weapons in California, given his dissent in Heller v. District of Columbia. In that dissent, he strongly opposed the decision of the D.C. Circuit Court to uphold the District of Columbia’s ban on most semi-automatic rifles and accompanying requirement for all guns in D.C. to be registered. On the other end of the spectrum, his views are being celebrated by many, and as described above, the NRA is strongly supporting his nomination.

What Else?

Of course, the coverage has not been limited solely to the issues discussed above. Senate Democrats have filed Freedom of Information Act requests for documents related to Judge Kavanaugh’s time working for George W. Bush. There will be many questions about his view of presidential power. ISCOTUSnow will continue to post summaries and links to thoughtful coverage, so check back often!

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent class of 2020, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.