The NCSL Blog

08

By Mark Wolf

Nashville—And if you think the last U.S. Supreme Court term was big (census, partisan gerrymandering), well, buckle up. 

Lisa Soronen"The next term is going to be huge," Lisa Soronen, executive director of the State and Local Legal Center and regular contributor to the NCSL Blog, told a packed session at NCSL's Legislative Summit.

"It's possible we'll see an abortion case, Obamacare, DACA."

The smart money, she said, is that the Supreme Court will conclude DACA is "illegal" because it violates the Immigration and Nationality Act and can be rescinded.

DACA's fate almost certainly comes down to Justice Brett Kavanaugh, who, along with Justice Neal Gorsuch, is part of what she called a "seismic shift" on the court. Over the course of the past term, Gorsuch and Kavanaugh revealed they are not identical twins, despite very similar backgrounds. Kavanaugh, she said, voted along more pragmatic lines while Gorsuch revealed a libertarian streak."With a squishy conservative majority you couldn't tell how cases were going to turn out," she said.

"For my entire lifetime, even longer, the court had an unreliable conservative majority," she said, citing the swing votes of generally conservative justices William Powell, Sandra Day O'Connor and Anthony Kennedy. When Gorsuch replaced conservative justice Antonin Scalia, the balance was maintained, but when Kavanaugh, a reliable conservative, replaced Kennedy, an unreliable conservative, the balance shifted.

"With a squishy conservative majority you couldn't tell how cases were going to turn out," she said.

However, she said, the "conservative" majority is in name only because most cases aren’t decided on ideological lines: "Over the last decade, about 50% of cases have been unanimous, about 20% of cases have been 5-4 and almost half of those have been 'big' cases."

And, the Kavanaugh-for-Kennedy swap left Chief Justice John Roberts as the new swing vote.

"Spoiler alert, once a conservative, always a conservative," Soronen said, while analyzing Roberts' role.

The chief justice is a strong conservative on social issues, she said, but with a pragmatic streak, and he embraces his role as the institutional guardian of the court: He voted to preserve the Affordable Care Act's individual mandate as a constitutional “tax” and was the deciding vote in the census/citizenship question.

Where is Roberts today? Sorenen describes him as cautious and careful, says he doesn’t want the court to move too fast (to the right) on controversial issues and says he has a lot of power (and he must know it). He can't stop his conservative colleagues from granting petitions (it only takes four votes) but can decide not to vote with them on the merits.

What he hasn't done, she said, is "acted like a rabid conservative who just won the lottery and can’t stop spending money."

Watch Lisa's presentation on Facebook.

Mark Wolf is editor of the NCSL Blog.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.