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WASHINGTON — After the high drama of his confirmation, Brett Kavanaugh joins a U.S. Supreme Court term that is off to one of its least momentous starts in well over a decade, giving him an opportunity to settle in as the newest justice.
But the court could soon decide to take up some hot-button issues, and Kavanaugh will likely play a decisive role in the outcome.
When Kavanaugh takes his place in the empty spot at the far end of the bench for courtroom argument Tuesday and Wednesday, he’ll join his new colleagues in hearing four cases that are typical of most of the Supreme Court’s workload — disputes that have divided the lower courts over the precise meaning of federal laws.
Two cases present a question that comes up repeatedly: What did Congress mean when it said conviction for a “violent felony” could trigger a federal law requiring longer sentences for repeat offenders? A third case challenges the authority of the Department of Homeland Security to detain immigrants who are in the U.S. illegally and have served sentences for other crimes. And the fourth will decide who’s responsible if a U.S. Navy sailor becomes ill from exposure to asbestos that was added after a ship was built.
None of that is exactly front-page material, which probably suits Kavanaugh just fine, at a time when the justices undoubtedly worry that the sharply partisan confirmation fight could undercut the Supreme Court’s reputation as staying above the fray.
Their concern is heightened by the fact that all the current court’s conservatives were appointed by Republican presidents, and all the liberals were appointed by Democrats.
“Part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now,” said Justice Elena Kagan at a Princeton University event Friday.
Law professor Jeffrey Rosen, president of the National Constitution Center, agrees. “She and her other colleagues are concerned that the court cannot easily hit the reset button, that citizens will come to see it as five Republicans and four Democrats,” he said.
Rosen says Chief Justice John Roberts may urge the court’s other members to avoid taking up highly controversial cases this term, hoping to allow the climate to cool. Two potentially contentious issues could be added to the docket, on whether the federal civil rights law that bans sex discrimination on the job also applies to sexual orientation, and how far the government can go in allowing religious symbols on public property.
On both those issues, Kavanaugh would likely be more conservative than Anthony Kennedy, whose retirement over the summer gave President Donald Trump the chance to make his second Supreme Court appointment.
Kavanaugh was at the court Sunday, preparing for the arguments he’ll hear this week. And he kept a promise he made during his confirmation hearing by hiring only women as his four law clerks.
At the Princeton event, Justice Sonia Sotomayor said she and the other justices will rise above the kind of partisanship on display during Kavanaugh’s confirmation.
“We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share,” she said.
Tom Goldstein, the publisher of the SCOTUSblog website who has argued 41 cases before the court, said the confirmation fight won’t affect Kavanaugh’s ability to function as a justice.
“All the members of the court work hard to get along with each other,” he said.