In light of the President’s nomination of Judge Brett Kavanaugh, Law Professor Dwight Duncan gave his insight into the nominee and the state of the Supreme Court.
Duncan is an honors graduate of Georgetown University Law Center. He has written articles on legal, moral, and religious issues and has argued several cases before the Massachusetts Supreme Judicial Court and the Appeals Court. Duncan has also written briefs for the U.S. Supreme Court.
He is a member of the Massachusetts and Washington, DC bars, the Board of Directors of the Pro-Life Legal Defense Fund, and serves on the Board of Advisors of Massachusetts Citizens for Life.
What are the likely cases and issues to come before the Court over the next few years?
Some that immediately come to mind: the continued use of racial preferences (affirmative action) in university admissions; the constitutionality of political gerrymandering; free speech on college campuses; a wide range of legal challenges to executive action by the Trump administration; conflicts between religious freedom and free speech with antidiscrimination laws; constitutionality of restrictive abortion laws; challenges to regulatory authority of administration agencies (the Chevron doctrine), etc., etc. Farther out, the sky is the limit in terms of creating or imagining further "emanations from penumbras" of specific provisions of the Bill of Rights.
How do you expect the new makeup of the Court to affect people’s lives in America?
I think the primary result will be to empower the political branches (Congress and the President) to establish binding laws by means of legislation and regulation rather than depend on the Court to resolve all disputed issues: a rededication to the Constitution as written and the laws that have been enacted. If you don't like what happens, then hold the political branches accountable through democratic elections. But do not expect government by judiciary.
What are the pros and cons of lifetime appointments to the Supreme Court?
The leading pro is basically an institutional commitment to judicial independence. The con, so to speak, is basically that if the Justice turns out to be a dud, we are stuck with him or her for what amounts to a life sentence (the Justice's or ours, whichever comes first).
What are your thoughts on the President’s nominee?
Judge Brett Kavanaugh is an outstanding jurist with a proven record of judicial integrity and fairness on the United States Court of Appeals for the District of Columbia Circuit. A former Kennedy law clerk, he will be an intellectual force on the Court for decades to come and most likely an advocate of judicial restraint vis-a-vis elective lawmaking and politics.