The retirement of Justice Anthony Kennedy last summer threw the future of the U.S. Supreme Court into flux. The open seat led to a bitter confirmation fight over now-Justice Brett Kavanaugh. And even though his appointment solidified a 5-4 conservative majority, alliances for the court’s 5-4 decisions during the past term have been less predictable than when Kennedy still sat on the court.
A panel discussed the court’s future and its notable cases from the just-ended term at the University of Colorado Law School’s annual U.S. Supreme Court review CLE. Colorado Supreme Court Justice Melissa Hart moderated the panel that included CU Law professors Helen Norton and Scott Skinner-Thompson, as well as Aaron Van Oort of Faegre Baker Daniels’ Minneapolis office.
Van Oort said during the 2018–2019 term, there were 10 distinct voting lineups among the court’s 5-4 decisions, reflecting how much the Supreme Court is still finding its jurisprudential identity just a year post-Kennedy.
“My own personal prediction at the time was that Chief Justice Roberts was going to be the swing justice on a lot of things. It turns out that I was right, and I was wrong,” he said. Van Oort discussed the philosophies the court’s conservative justices tended toward this past term when they swung 5-4 votes.