Political pundits almost always speak of “winners” and “losers” following a major political event.  In my view, the Republican brand in New Jersey is a major loser resulting from the Senate confirmation of Justice Brett Kavanaugh to the United States Supreme Court.  Notes follow: 

1. I don’t think the Roe v. Wade U.S. Supreme Court decision of 1973 guaranteeing a woman’s right to an abortion during the first two pregnancy trimesters will be overturned.  Even with the confirmation of Kavanaugh, anti-abortion advocates would still need the vote of Chief Justice John Roberts to reverse the Roe decision.

Chief Justice Roberts is very much an adherent to stare decisis (precedent) and the notion of well-settled law.   Roberts would be very inclined not to overturn Roe, a decision that has been the law of the land for 45 years and on which women have justifiably strongly relied.

2.  Having said that, the political context for Roe reversal changes completely if President Donald Trump has the opportunity to appoint a new Supreme Court justice to replace either Ruth Bader Ginsburg or Sonia Sotomayor, both of whom have health problems.  The appointment by Trump of a new anti-abortion justice would provide the necessary fifth vote for the reversal of Roe.  This definitely keeps the Supreme Court issue very much at the forefront for women and Democratic Party voters, particularly in liberal, blue state New Jersey in both the 2018 midterm elections and the 2020 presidential race. 

3.  The situation is much different with regard to the 2015 Obergfell v. Hodges U.S. Supreme Court decision guaranteeing the right of same-sex marriage.  The Kavanaugh confirmation makes it highly possible, in fact even probable, that Obergfell will be reversed in the near future.  Chief Justice Roberts wrote a vigorous and vehement dissent in Obergfell.  It was retiring Justice Anthony Kennedy, whom Kavanaugh is replacing, who both provided the decisive vote and wrote the majority Obergfell opinion.

It appears that Trump’s Evangelical supporters have realized the present difficulties in obtaining a reversal of Roe and are more focused on Obergfell. I fully expect them to institute litigation to overturn Obergfell – and I expect the new Supreme Court to rule in their favor.  The stare decisis considerations that would inhibit Roberts from voting to overturn Roe do not exist in Obergfell.   

Obergfell is a case of much more recent vintage than Roe, a decision issued 45 years ago.  It would be difficult for affected parties to claim reliance for precedental purposes on the Obergfell decision, which has only been in effect for three years. 

4.  The overturning of Obergfell will leave to state governments the responsibility to protect the right of same sex marriage.  This will create a serious crisis for the LGBT community nationally.  No Republican controlled state legislature in the era of Trump dominance will pass legislation to protect the right of same sex marriage.  At present, Republicans control both legislative houses in 32 states and Democrats have similar control in 14 states, including New Jersey. Only four states have divided control of their legislative houses. 

New Jersey thus becomes a legislative haven for the protection of gay rights.  Same sex marriage has been recognized as legal in New Jersey since October 21, 2013, the date on which Mary C. Jacobson, Assignment Judge of the Mercer Vicinage of the State Superior Court issued her decision in Garden State Equality v. Dow invalidating existing laws in New Jersey limiting marriages to persons of different sexes.  If the overturning of Obergfell has any impact on the Garden State Equality decision, there is little doubt that the Democratic-controlled legislature in New Jersey will pass legislation, which Governor Phil Murphy will sign, protecting gay marriage. 

5.  Bottom line:  The confirmation of Brett Kavanaugh increases in salience and significance as never before the issues of abortion choice and gay marriage.  The New Jersey electorate is decidedly pro-choice on abortion and pro-marriage equality.  The political demographics of New Jersey, in which the Democrats have a voter registration edge over the GOP in all but six counties, make it most difficult for the Republicans to win either the governorship or legislative control. The identification of the Republican Party by New Jerseyans as being anti-gay marriage and anti-choice in the Trump era makes such GOP success on either the gubernatorial or the legislative electoral fronts virtually impossible for the next decade.  Accordingly, the damage to the Republican brand in New Jersey from the Kavanaugh hearings and confirmation is monumental. 

Trump toxicity in New Jersey is at an all-time high.  The best news for the New Jersey Republican Party would be an early exit by Trump from the White House before his term expires, or barring that, his defeat in his reelection campaign of 2020.

Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush and as Executive Director of the New Jersey Meadowlands Commission under former New Jersey Governor Christie Whitman.