Kavanaugh Will Move the Court to the Right of Even Most Republicans

Without a moderate like Kennedy, the middle will be missing on the Supreme Court — and the views of the American public left behind.

By Stephen Jessee and Neil Malhotra

Mr. Jessee is an associate professor of political science at the University of Texas at Austin. Mr. Malhotra is a professor of political economy in the Graduate School of Business at Stanford.

If Judge Brett Kavanaugh joins the Supreme Court, it will mark a sharp move to the right — away from the views of most Americans. CreditJose Luis Magana/Associated Press

The Supreme Court is supposed to be insulated from most political pressures. In fact, one of its primary roles is to serve as a counterweight to the will of the majority in cases where policies might impinge on the rights of other citizens.

Yet it is common to hear criticism that the court is out of step with the American public. How well does the court actually represent the views of the American public? And how might this change with the Supreme Court nomination of Judge Brett Kavanaugh, a more solidly conservative jurist than Anthony Kennedy?

Historically, it’s been difficult to determine the precise ideological position of the court. Standard measures of the political preferences of citizens are quite different in nature from the positions taken by justices on Supreme Court cases.

But we came up with a way to compare the ideological position of the Supreme Court and its individual justices with the views of Americans. In our study, we asked ordinary Americans to describe their views on issues that had recently been decided by the court.

What we discovered was shocking: Virtually all of the justices on the court occupied extreme ideological positions when compared with the American public. The justices in the court’s conservative wing, including Chief Justice John Roberts, are not just more conservative than a typical member of the American electorate — they are also all to the right of the typical Republican.

Similarly, the four liberal members of the court fall well to the left of the median American voter and are in fact more liberal than a majority of those who identify as Democrats.

In recent decades, the Supreme Court has had as its median voter a moderate — most recently, Justice Kennedy, preceded by Sandra Day O’Connor. This pivotal member of the court has fallen quite close to the public center.

The overall ideological position of the Supreme Court fell approximately at the position of Justice Kennedy. Despite the relatively extreme positions taken by most of its members, the court has been, on balance, representative of the views of Americans.

But with the nomination of Judge Kavanaugh, that could change. He seems likely to be at least as conservative as, and perhaps more so than, Chief Justice Roberts, which would make the latter the court’s new ideological median. And our study found that he is much more conservative than both the average American voter and the average Republican voter.

In fact, Chief Justice Roberts was estimated to be more conservative than nearly 90 percent of Americans — and even three-quarters of Republicans.

To give an example of how this might play out: Justices Kennedy and Chief Justice Roberts were on opposite sides of the Obergefell v. Hodges decision that legalized gay marriage. According to recent polling by Gallup, 67 percent of Americans agreed with Justice Kennedy’s position on the case. With Judge Kavanaugh on the court and Chief Justice Roberts as the swing justice, the court would shift to being out of step on this issue with the views of two-thirds of Americans.

Now, Chief Justice Roberts has shown that he is deeply concerned about preserving the legitimacy of the Supreme Court as an institution. Perhaps he will become more moderate over time.

But our study suggests that the Supreme Court’s ideological representativeness has been a result more of chance than of any fundamental tendency of the court or its members. Looking ahead, we would predict that the court will be even more polarized — and is unlikely to come even close to reflecting the views of most Americans.

Stephen A. Jessee is an associate professor of political science at the University of Texas at Austin. Neil Malhotra is a professor of political economy in the Graduate School of Business at Stanford.

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DealBook Briefing: The Supreme Court Is Open for Business



Mirko Ilic

The DealBook guide to blockchain

You’ve probably heard that blockchain is a technology that is going to change the world — it is the backbone of Bitcoin, the now infamous cryptocurrency. You might even have heard someone trying to explain it by describing it as a “trusted distributed ledger.”

You might or might not have found that helpful.

Don’t worry: DealBook has a comprehensive guide that aims to demystify the technology. Some highlights:

• Andrew explains why blockchain is important — even if it flops at first.

• Everything you need to know about how it works. (Plus a graphic guide.)

• A who’s who of blockchain.

• The biggest obstacles it faces.

• How it’s transforming industry, investment, and money management.

• And finally, a glossary of cryptoslang.


Eduardo Munoz/Reuters

Comcast’s Fox bid is headed for the rocks

Walt Disney gained a serious advantage in its effort to buy most of 21st Century Fox yesterday when the Justice Department approved its $71.3 billion deal. The only sale that regulators demanded was of Fox’s 22 regional sports television networks, which compete with Disney’s ESPN.

That the Justice Department says Disney can to close its deal quickly strikes a serious blow against Comcast. As a regulatory filing earlier this week made clear, Fox is convinced that the cable giant’s $65 billion bid will face more antitrust scrutiny.

How can Comcast hit back? Only by offering way more money. But with its shareholders fretting over the debt it would take on to finance a deal, it would need partners to provide the extra cash, probably by buying some Fox assets. The WSJ reports such talks are in progress. They’ll have to move fast.

Why Wall Street stocks are getting pummeled

The S.&P. 500 Financials Index has fallen for 13 days straight. But weren’t rising interest rates and strong stress test results supposed to show that banks are in rude health? As it turns out, they could be weighing bank stocks down. Here’s how:

• A flattening yield curve. Long-term interest rates are normally higher than short-term ones, but the two are converging. That makes it less profitable to borrow short and lend long.

• Stress about the stress tests. The Fed publishes the final results today. All 35 banks in the test passed the first round. But some could fail today.


President Trump with Terry Gou, right, the C.E.O. of Foxconn, and House Speaker Paul Ryan.

Alex Brandon/Associated Press

How Trump is trying to rewrite the globalization rule book

For years, companies have built factories around the globe, to make things in the cheapest places they could. President Trump’s trade fight may unsettle that.

Mr. Trump, as Greg Ip of the WSJ explains, is trying to copy something that China and others have done: Forcing multinationals to build their products where they sell them. That could bring benefits to the economy. But it may also have unintended consequences.

Meanwhile, the president is in Wisconsin today to celebrate the Taiwanese company Foxconn building a factory there. (It happens to be up the road from Harley-Davidson, the motorcycle maker that Mr. Trump has attacked for shifting some production overseas to avoid new tariffs that he provoked.) He is touting the 13,000 jobs that Foxconn’s factory could bring to the state. But critics say the project could cost Wisconsin taxpayers dearly.

The bottom line: Trump’s trade policies are turning the rules of globalization on their head. The long-term effects remain to be seen.

Elsewhere in trade news: Senator Jeff Flake, Arizona’s outgoingRepublican, is holding up judicial appointments to fight the Trump tariffs. The looming global trade war is pushing China and India closer. What Trump’s new, tighter national security reviews of investments into the U.S. will look like. And the trade fight with China has turned America into Europe’s biggest supplier of soybeans.


Stephen Lam/Reuters

What a decade of smartphone patent wars achieved

Apple and Samsung have fought in courts over smartphones patents for seven years. That feud ended yesterday, when the two companies announced that they were settling for an undisclosed amount. (In May, a jury said Samsung should pay Apple $539 million for patent infringement.)

So what did all the countersuits, trials and appeals achieve? More from Jack Nicas of the NYT:

“If I had to characterize it, it didn’t really accomplish anything,” said Brian J. Love, a Santa Clara University law professor who tracked the case. “Close to a decade of litigation, hundreds of millions of dollars spent on lawyers, and at the end of the day, no products went off the market.”


Bill Shine

Mark Lennihan/Associated Press

Revolving door

Bill Shine, the former Fox News executive who was ousted over his handling of sexual harassment accusations there, is expected to become the White House communications chief. (NYT)

Qualcomm named Mark Fields, former C.E.O. of Ford Motor, and Neil Smit, a vice chairman of Comcast, to its board. (Qualcomm)

The speed read


• Global M.&A. volumes reached $2.5 trillion in the first half of the year, a record, lifted by flurry of giant deals. (FT)

• Lyft raised a $600 million round that prices the ride-hailing company at $15.1 billion, doubling its valuation in just a year. (Lyft)

• The Greek yogurt maker Chobani has struck a deal to buy out TPG’s stake in it, regaining control after turning to the investment firm for a financial lifeline years ago. (NYT)

Politics and policy

• The House rejected another immigration bill after Republicans split again. (WaPo)

• The White House’s nominee to lead the I.R.S. didn’t disclose ownership stakes in units at a Trump resort. (Bloomberg)

• Political activists’ latest battleground? Yelp. (Axios)


• Facebook’s inquiry into data misuse, prompted by the Cambridge Analytica scandal, has hit snags: Some developers won’t cooperate, and others have disappeared. (WSJ)

• Amazon will start leasing vans to small delivery companies, for deliveries that it says FedEx, UPS, and the U.S. Postal Service can’t handle. (Reuters)

• A close look at how Elon Musk is trying to increase production of Tesla’s Model 3. (WSJ)

• Apple is reportedly considering offering a single subscription for TV, music and news. (Information)

• We’ve hit Peak Screen. What now? (NYT)

Best of the rest

• U.S. companies hold a record $6.3 trillion of debt. (CNBC)

• The space race between Elon Musk and Jeff Bezos is hurting airlines. (Bloomberg)

• From the FT: “The ship tycoon, the €100m scam and an epic battle for justice.”

• How technology became geopolitics. (Axios)

You can find live updates throughout the day at nytimes.com/dealbook.

We’d love your feedback. Please email thoughts and suggestions to bizday@nytimes.com.

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Live Briefing: Anthony Kennedy Retires From Supreme Court, and McConnell Says Senate Will Move Swiftly on a Replacement

“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” Mr. McConnell said. “We will vote to confirm Justice Kennedy’s successor this fall.”

Mr. McConnell had refused to consider President Barack Obama’s nomination of Judge Merrick B. Garland in the run-up to the 2016 election, saying that the Senate would not fill the vacancy left by Justice Antonin Scalia’s death in an election year. That maneuver infuriated Democrats, but Republicans say it was crucial to turning out their voters that fall.

Senator Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, said he stood ready to begin considering a nominee to the court as soon as Mr. Trump nominated one.

— Nicholas Fandos on Capitol Hill

Trump said the search for a nominee will begin immediately.

President Trump spoke to reporters in the Oval Office as he met with President Marcelo Rebelo de Sousa of Portugal. He told the reporters that Justice Kennedy had “been a great justice of the Supreme Court” and that “hopefully we are going to pick somebody who will be just as outstanding.”

At another point, the president said that he intended to choose a nominee from a list of 25 potential candidates that was published by the White House in November.

Schumer threatened to play hard ball, but may have little leverage.

Senator Chuck Schumer of New York, the Democratic leader, and liberal senators in his caucus quickly called on Mr. McConnell to reverse himself and hold off on considering a nominee until after November’s election. It would simply be consistent with precedent, he said, to let voters choose the senators who will vote on “the most important Supreme Court vacancy for this country in at least a generation.”

“Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year,” Mr. Schumer said on the Senate floor. “Anything but that would be the absolute height of hypocrisy.”

But in truth, as long as they are stuck in the minority, the Democrats have few tools at their disposal to actually block consideration, as Mr. McConnell did as majority leader in 2016. Even if every Democrat voted against the president’s nominee — an unlikely scenario in an election year when a handful of moderates are up for reelection in states Mr. Trump won — they would need a Republican to defect and vote with them. Mr. Schumer called on his colleagues to reject any nominee that would encroach on certain rights Democrats view as sacrosanct.

[Read more on the political battle brewing in the Senate from The Times’s Carl Hulse.]

“The Senate should reject on a bipartisan basis any justice who would overturn Roe v. Wade or undermine key health care protections,” Mr. Schumer said.

— Nicholas Fandos on Capitol Hill

The Supreme Court’s Biggest Decisions in 2018

The nation’s highest court faced a far-reaching list of cases that renewed its central role in American life.

Trump praised Kennedy for his service.

Shortly after Justice Kennedy’s announcement, the White House released a statement on his retirement:

Today, we thank Justice Anthony M. Kennedy for his thirty years of distinguished service on the Supreme Court of the United States. In 1987, President Reagan nominated him to the court, and he was swiftly confirmed without opposition. A Californian — like the president who appointed him — Justice Kennedy is a true man of letters. During his tenure on the court, he authored landmark opinions in every significant area of constitutional law, most notably on equal protection under the law, the separation of powers and the First Amendment’s guarantees of freedom of speech and religion.

Justice Kennedy has been a tireless voice for individual rights and the founders’ enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history.

The solicitor general also praised Kennedy.

Noel J. Francisco, the Justice Department’s solicitor general, said in a statement that he and the department were “grateful and appreciative for Justice Kennedy’s tireless years of public service in our federal judiciary and on our Nation’s highest Court.”

“His jurisprudence has left an indelible mark and his commitment to our cherished First Amendment freedom of speech will be a legacy for generations to come,” Mr. Francisco said. The solicitor general argues cases on behalf of the federal government before the Supreme Court.

Katie Benner in Washington

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