Assuming he’s confirmed, a court with Justice Kavanaugh rather than Justice Anthony Kennedy is going to be more conservative, but not much more. While it’s possible that some longstanding precedents are on the chopping block, our current political polarization will help keep the court’s hand from being too disruptive.
Supreme Court justices understand the somewhat precarious place the court inhabits in our constitutional system. If its judgments are to be enforced, the court depends upon respect from the legislative and executive branches and broad support from the public.
In the words of Alexander Hamilton, writing in the “Federalist Papers,” the judiciary has neither “the sword or the purse” and it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Throughout American history, Supreme Court justices, and particularly chief justices, have been sensitive to public opinion. While many would argue they shouldn’t be, the court ignores public opinion at its own peril. Without sword or purse to enforce its rulings, how will the people react if a Supreme Court decision undermines their deeply held convictions?
That question was put to the test in 1954, when the Supreme Court decided the landmark case of Brown v. Board of Education and all hell broke loose. America was polarized then, too, with the Southern states being much more in favor of segregation than the Northern ones. When the Supreme Court announced its ruling, the resistance began almost immediately. Gov. Orval Faubus of Arkansas called out the Arkansas National Guard to help block nine African–American children from entering a high school. In response, President Dwight Eisenhower sent the 101st Airborne to Little Rock to escort the children into school. It was a true constitutional crisis, the likes of which had not been seen since the Civil War.