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 New Scotus Pick Could Be a Boon for Business


Today’s DealBook Briefing was written by Michael J. de la Merced and Jamie Condliffe in London.



Mario Tama/Getty Images

Uber’s scooter trip has an ambitious destination

The ride-hailing company is investing in Lime, a start-up best known for offering rides on those surprisingly popular electric scooters. Uber didn’t disclose how much it was putting in, but the deal is part of a $335 million fund-raising round that values Lime at $1.1 billion.

Despite appearances, this is not a novelty acquisition. It’s the latest of a series of moves by Uber and its rival Lyft to take control of city transportation. Each wants its app to be the only thing urbanites need to get around, offering cars, bikes, scooters and public transit (and some day maybe flying taxis).

But given Uber’s track record, will cities welcome these ambitions?


Jeff Bezos at last year’s Allen & Company conference.

Drew Angerer/Getty Images

Business moguls return to Sun Valley

Mark Zuckerberg and Jeff Bezos are expected in the Idaho resort this week. So too are Rupert Murdoch and John Malone, the cable mogul and the serial deal maker. It can only mean one thing: Allen & Company’s annual media conference is about to begin.

The gathering, which starts today, has been the birthplace of many deals, from Comcast’s purchase of NBCUniversal to Mr. Bezos’s takeover of The Washington Post. And with the media industry braced for a wave of consolidation, we can expect plenty of potentially important hushed conversations at the Sun Valley Lodge or on the resort’s patio.

Awkward pairings: Disney’s Bob Iger and Comcast’s Brian Roberts, battling for control of 21st Century Fox, were both invited. So too were Les Moonves of CBS and his boss, Shari Redstone, who are fighting each other for boardroom control.

McKinsey has stopped working for I.C.E.

The NYT reports that the consulting giant will no longer work for Immigration and Customs Enforcement after former partners became alarmed about ties to the agency given its role in separating immigrant children from their parents. (What the consultancy did for I.C.E. was unclear.)

McKinsey didn’t end the contract as soon as it heard concerns — three days after the NYT ran an investigation, the consulting firm merely modified the terms. But the disclosure that McKinsey was working with I.C.E. “caused a lot of discussions and alumni reactions,” according to one former partner.

In other government contract news: Activists marched outside the headquarters of Salesforce to protest its work with Customs and Border Protection.


Derek R. Henkle/Agence France-Presse — Getty Images

The trade war’s other fight: soybeans vs. economic history

The WSJ’s Greg Ip has a nice explanation of how imposing tariffs on imported goods can act as a tax on exports:

Exports and imports tend to rise and fall together, proof that the underlying relationship still holds. If the U.S., for any reason, cuts its imports from a trading partner, that country’s economy and currency both weaken, so it buys less from U.S. companies.

But in the U.S.-China trade war, one product could test that theory: soybeans. Beijing imposed a 25 percent tariff on American soybeans last week in retaliation to Trump administration levies. But Raymond Zhong of the NYT explains that China bought $14 billion worth of the crop from America last year, and while it is pushing its farmers to grow more — 90 percent of the soybeans it consumed last year were imported — its homegrown supply probably can’t keep up.

Until China expands its soy acreage or finances cultivation elsewhere, American soy exports look safe.

Revolving door

JPMorgan Chase has appointed Carsten Woehrn as head of infrastructure M.&A. in Europe, the Middle East and Africa, a new position.

Uber is hiring a manager for I.P.O. readiness, in case you weren’t aware that it intends to go public. (Uber)

The speed read


• Twenty-First Century Fox is said to be working on a higher bid for the European satellite broadcaster Sky. (FT)

• SoftBank plans to spin off its telecom business — a deal meant to highlight its value, when all anyone wants to talk about is the Vision Fund. (FT)

• Martin Sorrell has beaten his old firm, WPP, in the fight for a Dutch ad company. (Guardian)

Politics and policy

• Boris Johnson resigned as Britain’s foreign secretary, further weakening Prime Minister Theresa May’s government. (NYT)

• The casino magnate Sheldon Adelson is backing a Nevada ballot initiative on choice of power provider. On the other side: Warren Buffett, whose NV Energy is the state’s biggest utility operator. (Reno Gazette Journal)

• President Trump attacked Pfizer for its drug prices, but its shares ultimately shook off the tweet. (FT)


• Privacy and consumer groups are railing against Facebook’s facial recognition push. Lawmakers want answers from Alphabet over Gmail privacy and Apple and Alphabet about smartphone privacy.

• YouTube says it is fighting misinformation with “authoritative” context and links to reputable sources. Twitter is cracking down on fake accounts, but that raises questions about its recent growth.

• China is producing AMD-licensed chips almost identical to those made by the American firm, raising trade war and national security concerns. (Ars Technica)

Best of the rest

• The Dow and S.&P. 500 enjoyed their biggest gains in over a month yesterday. Thank the banks. (NYT)

• The U.S. economy might be growing faster than the government says. (WSJ)

• China’s economic reform might not be going as well as you might think. (CNBC)

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