SCOTUS 'Rule of Four'

PUBLISHED: 5:36 PM 12 Jul 2018

Kavanaugh’s Addition To Court Means ‘Rule Of Four’

Now that the court can count on another constitutionalist vote, granting cert to big cases is no longer the risk it was with Kennedy.

Kavanaugh's addition to the Supreme Court, if it occurs, would mean that the court has a stable majority without fear of a swing vote. That could greenlight a conservative agenda.

Many people are not aware of this, but the United States Supreme Court does not hear the vast majority of cases that are brought before it. In fact, they only hear about 130, at most, of the 7,000 to 8,000 cases brought before them every year. Of those, the court will decide around 80 quickly, and the remaining 50 will move on to oral arguments. The cases that they will hear are chosen by the ‘rule of four.’

The ‘rule of four’ simply means that four of the justices must agree to hear a case before the court will actually listen to it. Sometimes, they make that choice tactically, fearful of a bad ruling undermining the law. Now that Brett Kavanaugh could be on the bench instead of Justice Anthony Kennedy, the court could produce rulings on more important conservative issues without fear, which is precisely why the people of America elected Donald Trump in the first place.

However, liberals are weaving tales of how the ‘rule of four’ and Kavanaugh’s appointment could undermine leftist judicial activism at the court, and how Chief Justice Roberts would be the key to that plan.

For years, Anthony Kennedy could not be trusted to be a conservative-leaning. Instead, he was a swing vote, and it showed not only in his decisions, but in the cases that he decided to ‘grant cert,’ the ones he decided that the court should hear.

However, there is another reason to vote against granting cert to a case for a judge, and it may have been why John Roberts, the current Chief Justice of SCOTUS, withheld his own support on cases that he would otherwise want to rule on.

A bad ruling, or a bad case, can produce bad law and bad precedent.

Furthermore, since Justice Roberts, who is fairly conservative in his leaning and rulings, couldn’t trust that Kennedy wouldn’t swing his vote in the ‘wrong’ direction, choosing to bring certain cases before the court could have allowed the court to vote against important constitutional rights, such as the Second Amendment.

During the Reagan era, the Department of Justice had a Solicitor General named Rex Lee.

He would begin his briefings every month with a reminder to the Justice Department’s attorneys that he didn’t want them to pursue cases for which there was no chance of getting five votes.

Solicitor General Lee didn’t want the Department of Justice to lose cases, and he didn’t want to waste his time pursuing lost causes. He wanted to win cases and protect the government’s standpoint, and he wanted to make sure that he created good precedents when he did.

Because of this, during the Ronald Reagan administration, the Supreme Court wasn’t pumping out ‘big cases’ with frequency.

The DOJ was filtering out cases that they felt were unwinnable or too risky to fight, and then the court was declining to hear cases as well.

Kennedy is no longer on the USSC, though.

Barring some sort of horrible performance in front of the legislature when they question him on his legal philosophies, opinions, and his background, it seems fairly evident that Kavanaugh is cruising toward a spot on the court.

Though it’s hard to predict a judge’s future rulings, it seems almost certain that he would be more reliably an originalist in his rulings than Kennedy would be.

With only three sure votes (plus his own being fairly certain), Roberts was wise to not risk putting big issues before Kennedy.

Doing so could have allowed the liberal portion of the course to score a 5-4 ruling against Second Amendment rights and other important issues.

However, with an assured five votes in favor of constitutional rights, individual liberty, and limited government, it seems more hopeful that the court could take on cases concerning the right to keep and bear arms, for example, such as laws pointing out that California has basically banned an entire class of firearm and that many large cities in California have a de facto ban on concealed carry for anyone who is not rich, famous, or politically-connected.

The court could even safely take on the infamous Roe v. Wade verdict, which created a ‘right,’ at the federal level, to abortions via an extremely absurd reading of the existing right to privacy.

Whether the political left likes it or not, the abortion debate is, and should be, a state-level debate. States like California should be free to have abortions funded with state tax money, while states like Kentucky should be free to ban the practice altogether, save in cases of medical necessity.

Now that there’s a more reliable vote on the court, it seems likely that the cases coming before the court will be a bit more important, and that maybe the constitutionalists on the court will stop punting the important cases or simply ignoring them altogether.