Kate Shaw, a professor at Yeshiva University Benjamin N. Cardozo School of Law, is no head-in-the-clouds academic. She keeps up with the Supreme Court’s docket and, most recently, with the daily legal dramas of the Trump era.
That’s in part because she is a contributor to ABC News, especially on Supreme Court matters. Her experience as a former law clerk to Justice John Paul Stevens and Seventh Circuit Judge Richard Posner, as well as her time in the Obama White House counsel’s office, puts her in a position to analyze fast-breaking events with knowledge and enthusiasm. Plus, her husband is Chris Hayes, the MSNBC host.
In a conversation after the Senate hearing for Supreme Court nominee Brett Kavanaugh, Kate Shaw, a professor at Yeshiva University Benjamin N. Cardozo School of Law offered her insights with The National Law Journal about the court’s future as it replaces retired Justice Anthony Kennedy. The conversation was edited for length and clarity.
National Law Journal: What did you make of the Kavanaugh confirmation hearing?
Kate Shaw: From the time that the announcement of Judge Kavanaugh as a nominee was made, it was pretty clear that, if he were confirmed, the law would move in a significantly more conservative direction. But I thought going into the hearing that there were a lot of questions about the way that we would get there and the way the court would get there.
You probably have three members of the court—Clarence Thomas, Neil Gorsuch and Samuel Alito—who would argue for taking an express train there, going pretty directly in a sharp conservative direction. And then I thought you would probably have two members, the chief justice and judge Kavanaugh, who would advocate a much more incremental and measured move toward the same destination.
Coming out of the hearing, I actually felt like Judge Kavanaugh was more likely than I had imagined to be on the express train, which I think means that we’re going to be in a moment in which the chief justice writes the controlling concurrence in almost every area of law. If there are four justices who want to take up issues where it’s going to be really hard to avoid squarely confronting important precedents, it’s all going to come down to the chief.
NLJ: Do you see that shift happening as soon as this coming term?
KS: I don’t think it could happen that quickly but obviously a lot will depend on what state legislatures feel emboldened to do following the confirmation of Judge Kavanaugh. But I think that, within the next couple of terms, if there are four votes to take up a major abortion case or a major gun case, we could see it happen in relatively short order.
NLJ: Apart from that, what big cases do you see in the new term?
KS: From a law professor perspective, there’s a lot of fun and interesting stuff, but it’s a little sleepier I think in the first couple of months. The Gundy v. United States case is a significant nondelegation doctrine challenge [one branch delegating its duties to another], and I think that a couple of members of the court have been very eager to revive a robust nondelegation doctrine. They have a chance to do that very soon in a pretty interesting case that sort of scrambles the kind of ordinary ideological assumption that you might make. This is a case in which the nondelegation doctrine would be applied to the benefit of convicted sex offenders, and it’s a petition brought by a couple of liberal law professors from Stanford, Pam Karlan and Jeff Fisher. And yet it’s been the conservative members of the court who have advocated reviving nondelegation doctrine, so it will be interesting to see how that plays out.
NLJ: Do you think anything relating to the Mueller investigation will get to the Supreme Court? I remember that in 2000 I wrote that the Supreme Court would never get involved in the Florida recount case. I sure was wrong about that.
KS: I think it seems quite possible. A challenge to the attempt to compel testimony, or one of these challenges not brought by the president but by someone else who is making constitutional challenge to the appointment of Robert Mueller. I think it’s possible that the court could decide to steer clear, and so far the lower courts have upheld the appointment. But I do think, if you had a big lower court opinion finding the appointment unconstitutional, then it would be difficult for the court not to take the case up.
NLJ: In that case, does Justice Kavanaugh recuse himself?
KS: He declined to commit to doing it, and I think there probably will be a real push, but in the end I would be very surprised if he did. I would imagine he would participate.
NLJ: Stepping back, how different is the court now or in the future from the time you clerked there 10 years ago?
KS: With the replacement of Justice Kennedy with Justice Kavanaugh, you sort of have the final and perfect alignment of the party of the appointing president and the ideology of sitting justices. Justice Kennedy, a Republican appointee, voted with the liberal justices in a lot of important areas. Justice Stevens, for whom I clerked, was a Republican appointee, but voted with the liberal Justices most of the time. By the time I was with them, it was also true of Justice Souter. So that is a major historic shift.
NLJ: Final question, I have to ask: What was it like being on a podcast with your husband, and do you expect to be on his show anytime soon?
KS: With him? No, I won’t go on. He asks me all the time. I will say that—I think I said this on the podcast—I was extremely reluctant to do it, because he asks me to be on the show pretty regularly and I would say no, it just seems strange. And I’m a contributor with ABC; I’d have to get permission, and also I’m doing the kids’ bedtime, so I always say no.
Editor’s Note This Q&A,which first appeared in our October print issue, went to press after Judge Brett Kavanaugh’s first Senate hearing on Sept. 4 and before his second hearing on Sept. 27. It appears here online in its original form.