Kennedy no Swing Justice, Kavanaugh unlikely as dramatic upset to Court’s ideological baseline

As Judge Kavanaugh closes in on joining the Supreme Court, I’m reminded of some thoughts I had when Justice Kennedy first announced his retirement. Kennedy had long been hailed as a “swing vote” because, while a nominal conservative, he frequently broke ranks to side with the liberals. Now some are voicing concerns that another Trump pick, especially in the form of Kavanaugh, will signal a sharp and even unprecedented right turn that will last for a generation: last week, NPR’s Domenico Montanaro opined that this pick will be “replacing the swing vote on the Supreme Court” and that “for the first time in 75 years or so, there would be a conservative majority on the Court.”

There’s some truth that Kavanaugh would pull the Court to the right, but only because he is himself so sharply conservative in his jurisprudence. But Kennedy’s reputation as a swing judge is in fact quite undeserved. Kennedy was a pronounced conservative, and his “swing” decisions — typically involving individual civil rights — can be better understood through his relatively unsophisticated fear of government encroachment against finely scoped individual freedoms. If Kennedy was popularly understood to be a check on the more aggressively conservative inclinations of the modern Court, that understanding was mistaken. And if Kavanaugh is confirmed to replace him, that will most likely just cement the conservative-leaning majority the Court has actually enjoyed for most of the last 75 years.

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Clinton apologists and the popular vote

A lot of people have been trying to make sense of Clinton’s loss to Trump last week. Conservative pundits not necessarily pleased with the rise of Trump have blamed an aggressive backlash to “weaponized” political correctness. On the left are continued complaints about Russian interference, even motivating calls that the Electoral College deny Trump the office when they vote next month. And extremist elements to both the far-right and far-left have responded with vandalism and violence.

The situation is frantic and there doesn’t seem to be consensus on what got us here. Many blame racism at a high level, but that charge lacks specificity and therefore explanatory power. All meaningful approaches rightly address the Electoral College, but the underyling forces seem yet to be clearly articulated. A careful study of two pro-Clinton apologetic flavours of voting analysis is instructive in understanding just how Trump won in 2016.


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