Monday, April 22, 2019

The media's magical thinking about the Supreme Court

The Wall Street Journal reports:

The Supreme Court on Monday said it will consider three cases to decide whether federal law protects gay and transgender workers from employment discrimination.

The cases mark the first major consideration of gay rights by the justices since the retirement of Justice Anthony Kennedy, who led a closely divided court through a series of landmark opinions culminating with the constitutional recognition of same-sex marriage.
The Wall Street Journal says this is going to "put[] the spotlight squarely on Justice Brett Kavanaugh, the former Kennedy clerk who succeeded his former boss last year." But I see no reason to think Justice Kavanaugh is any more significant in this way than Justice Gorsuch (who isn't mentioned in the WSJ article). What matters is that they're the two who joined the Supreme Court after its 2015 same-sex marriage decision; it's irrelevant who replaced Justice Kennedy and who replaced Justice Scalia. The media made the same mistake when Justice Alito replaced Justice O'Connor, shortly after Chief Justice Roberts replaced Chief Justice Rehnquist; journalists would act as if Alito were especially important because his direct predecessor, O'Connor, was more often in the majority than Rehnquist. But that's magical thinking. When two judges replace two judges on a court, it doesn't matter who replaced whom, as long as the judges' votes all count equally.

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