That did not stop him from joining a decision in June that overruled a 40-year-old precedent in a decision that dealt a sharp blow to public labor unions. In general, though, a court with the chief justice at its center would most likely move steadily to the right in measured steps.
“I would be somewhat surprised if any of the cases relating to affirmative action, abortion, same-sex marriage or the death penalty are flat out overruled,” Professor Gornstein said. “But it would not surprise me in the slightest if the court never upholds another affirmative action plan, never finds another restriction on abortion to impose an undue burden, never extends the rights of gays and lesbians beyond where they are now, and never again expands the category of persons who may not receive the death penalty.”
Republicans are confident that they can quickly confirm Judge Kavanaugh. Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, said there was a good way to determine where the Supreme Court would head if that happens.
“The key is,” he said, “the many areas where Kennedy was with the liberals in 5-4 decisions: abortion, affirmative action, gay and lesbian rights, criminal punishments and allowing proof of discrimination based on disparate impact. In all of these areas of law, Kavanaugh replacing Kennedy likely will mean a significant change.”
In 2016, in Whole Woman’s Health v. Hellerstedt, Justice Kennedy joined the court’s four liberals to strike down parts of a Texas law that would have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.
That same year, he wrote the majority opinion in Fisher v. University of Texas, upholding a race-conscious admissions program at the state’s flagship university.
Both decisions would almost certainly have come out differently had Justice Gorsuch, Mr. Trump’s first appointee, and Judge Kavanaugh been on the court.