In the last post (see Part 1), we scrutinized one branch of the originalist/textualist judicial "philosophy" embraced by Judge Brett Kavanaugh. Specifically, the "not-in-the-text" insistence that judges ought not to "make up" rights that are "not in the text of the Constitution."
That superficially appealing, pseudo-constitutional nonsense--yes that's harsh, but that's really all it is--ignores the fact that most of our most basic liberties don't happen to be in the text. They are nowhere to be found in the Constitution. That document is not, and absolutely was never intended to be, a catalog of rights in American free society--let alone an all-inclusive catalog.
Beyond that, the Founders and Framers actually anticipated that such "not-in-the-text" nonsense would be raised. Madison, Hamilton, and others were originally opposed to any declaration of rights that might possibly be deemed to be a complete list. So when they eventually decided to include such a list, which we now call the Bill of Rights, they included a 9th Amendment which makes explicit that the list is anything but complete.
And yet, Judge Kavanaugh--like others who don't happen to like some of the unlisted rights that have nevertheless been recognized--has somehow repeated that nonsense. It is really difficult to believe that he actually believes it. (Or that his hero, the late Justice Scalia--who opposed gay rights and same-sex marriage and a woman's right to choose and the "incorporation" of the Bill of Rights as due process protections against the states--actually believed it either.) Unless, of course, Judge Kavanaugh means something very different than what he is saying.
(Again, see Part 1 for a very small sampling of the most basic rights we enjoy in American free society which Kavanuagh's "not-in-the-text" nonsense would preclude.)
Now, let's consider that other branch of the originalist/textualist judical "philosophy" that Judge Kavanaugh has embraced. This branch has to do with limiting constitutional rights and liberties to what was specifically intended when the provisions were originally adopted. So no policy-making decisions, and especially not those that diverge from--or enlarge--what was originally intended. But Kavanaugh does seem to be a little flexible on this score. He also speaks about "settled principles" that should bind judges. Apparently, even if those settled principles were not part of the "original intent."
Here is how he put it himself last year, in an address at Notre Dame law school, in honor of Justice Scalia:
Justice Scalia...explained that federal judges are not common-law judges and should not be making policy-laden judgments. Along the same lines, Chief Justice Roberts has famously articulated the vision of the judge as umpire.
I believe very deeply in those visions...By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences....
There is often a debate about originalism versus living constitutionalism. Justice Scalia famously promoted originalism. Originalism is akin to textualism, but it takes account of the fact that the meaning of a word might have changed from the time of enactment to today. When that has occurred, the meaning at the time of enactment controls.
So 1) original meaning of the text and 2) settled principles. Does Judge Kavanaugh--like Justice Scalia before him--really believe that? In the abstract? In practice?
To be fair, it should be acknowledged that this original intent and settled principles vision of the judicial role is not preposterous. No, it is not utter nonsense like "not-in-the-text." It is actually one view of judicial restraint that leaves change and policy-making, as much as possible, to the two democratic--i.e., popularly elected--branches of government. It views judicial review--especially when it results in invalidating the actions of those other branches--to be largely anti-democratic, because it not based on popular will.
Accordingly, in a democratic society, such a restrained view of the judicial role calls for considerable deference to the politically elected branches.
(Of course, as even Judge Kavanaugh would presumably agree, judicial review is most essential when it actively protects fundamental rights despite what is popular and, indeed, despite being contrary to what the politically elected branches have done.)
But if this vision of "original intent" and "settled principles" is not utter nonsense, it is at the least very troublesome. The consequences of its application would be drastic. And that is why it is rarely, if ever, adhered to or admitted to by the self-proclaimed devotees when confronted with its implications. That vision is typically raised only to criticize those still-controversial decisions that the devotees happen to dislike.
When confronted with judicial landmarks that we cherish as Americans, insistence upon "original intent" or "settled principles" almost always diminishes or is more palatably redefined. Because these landmark decisions, most of which we now take for granted, were possible only because "original intent" and "settled principles" were disregarded or rejected by the Supreme Court.
Let's consider just a few such landmarks--and the constitutional doctrines they adopted that we now take for granted. Again, none of them would have been possible if the Court had adhered to "original intent" or "settled principles." What about these:
- Outlawing racial segregation--contrary to original intent and to the settled principles at the time. In its 1954 decision in Brown v. Bd. of Ed., the Court disregarded the original narrow purpose of the post-Civil War 14th Amendment, specifically the Equal Protection Clause, which absolutely was not meant to end the separation of the races. It would never have been ratified in 1868 with such an understanding. Also, the Court in Brown overruled the settled principle of "separate but equal," which had been the law of the land, endorsed by the Court in 1896 in Plessy v. Ferguson.
- Legalizing interracial marriage--contrary to original intent and to settled principles at the time. In its 1967 decision in Loving v. Virginia, the Court again disregarded the original purpose of the Equal Protection Clause. It held that discrimination against interracial couples was unconstitutional. It also disregarded the original meaning of the Due Process Clause and recognized a constitutional right to marry. A right of interracial marriage was absolutely no part of the 14th Amendment's purpose in 1868, and ratification of that amendment would have been doomed if it were. Moreover, the Court's ruling in Loving was contrary to the settled principles at the time that states were free to regulate marriage, and that anti-miscegenation laws were constitutional, just as the Court had held in its then-longstanding precedent in Pace v. Alabama (1883).
- Applying Equal Protection to women--contrary to original intent and to settled principles at the time. In its 1971 decision in Reed v. Reed [Yes, it took that long!], the Court once again disregarded the original narrow purpose of the 14th Amendment's guarantee of equal protection (i.e., insuring citizen rights to the newly freed black slaves), and applied it to require that laws treat women equally to men--something absolutely not intended in 1868. Indeed, the "settled principles" at the time Reed was decided in 1971 had allowed discriminatory treatment of women--e.g., Bradwell v. Illinois (1873) [women may be barred from practicing law]; Strauder v. West Virginia (1879) [women may be barred from jury service]; etc., etc., etc. [BTW, Judge Kavanaugh's originalist hero did insist that the Equal Protection Clause did not apply to women.]
- Legalizing birth control for married couples--contrary to original intent and to settled principles at the time. In its 1965 decision in Griswold v. Connecticut, the Court recognized a fundamental right of marital privacy--including intimate relations--which was not part of the original meaning of any particular provision in the Constitution. Moreover, the Court disregarded the well-settled principle that the regulation of marriage and sexual morality were left to the states.
- Outlawing racial discrimination in hotels and restaurants--contrary to original intent and to settled principles at the time. In its 1964 decision in Heart of Atlanta Motel v. U.S., the Court upheld the Civil Rights Act of 1964, which prohibited racial discrimination in public accommodations, even if privately owned. The Court did so by enlarging the original meaning of Congress's commerce power, extending it to the impact of travelers on interstate commerce. The Court also disregarded the settled principle, from the Civil Rights Cases of 1883, where it had held that the similar anti-discriminatory provisions of the Civil Rights Act of 1875 were unconstitutional exercises of congressional authority.
- Requiring a warrant for searches of private activities--contrary to original intent and to settled principles. In its 1967 decision in Katz v. U.S., the Court enlarged upon the 4th Amendment's original search and seizure rights and held that protections were not limited to the items specifically mentioned in that Amendment--i.e., "persons [bodies], houses, papers, and effects [personal property]." Rather, the Court in Katz applied 4th Amendment protections to the privacies that people could reasonably expect in our free society. So, for example, a warrant would be required to electronically eavesdrop on a private phone conversation--even though neither "phone" nor "conversation" is mentioned in the 4th Amendment. Also, the Court rejected settled principles from a long line of cases that had interpreted the 4th Amendment in that much more restricted literalist manner. (E.g., Olmstead v. U.S. --upholding the wiretapping of private phone conversations without a warrant.)
- Right to counsel for the poor--contrary to original intent and to settled principles. In its 1962 decision in Gideon v. Wainwright, the Court rejected the restricted original understanding of the 14th Amendment and held that the Due Process Clause guaranteed more than the right of an accused to hire a lawyer. It also included--to insure basic fairness in criminal prosecutions--the right of to have a lawyer appointed for those who could not afford one. That decision also rejected the well-settled principles at the time that 1) the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and 2) that the appointment of counsel for the poor was not required, except in capital cases and other special circumstances. (E.g., Betts v. Brady --no right to the appointment of counsel in a robbery prosecution.)
- Right to a trial by jury--contrary to original intent and to settled principles at the time. In its 1968 decision in Duncan v. Louisiana, the Court enlarged the meaning of the 14th Amendment as originally understood and held that the Due Process Clause entitled the criminally accused to be tried by a jury for all but minor charges. The Court also persisted in rejecting the formerly well-settled principle that the 14th Amendment had made only a few rights of the accused in the Bill of Rights applicable to the states, and it rejected longstanding precedents that the right to a jury was not a fundamental of constitutional due process.
- Etc., etc., etc.
Judge Kavanaugh ought to be questioned about these and similar cherished landmarks, where the Court refused to be restricted to the original intent of particular constitutional provisions and where it rejected settled principles.
Does he believe that these landmarks were wrongly decided? Correctly decided, even though the Court disregarded original intent and rejected settled principles? Or correct because, in some amorphous sense of original intent or settled principles, the Court's decision was somehow faithful to one or both? Or does he really not believe in a judicial philosophy of original intent and settled principles?
To be sure, as is typical for Supreme Court nominees, Kavanaugh will almost certainly decline to say whether those cases were wrongly decided or how he would have voted in those cases.
(Although nominees will usually say that Brown v. Bd. of Ed. was correctly decided and that the nominee would have voted that way--because to say otherwise at this point in time would be shameful. But at the same time, self-proclaimed originalists will rarely acknowledge that the Brown decision was entirely contrary to the original intent of the Equal Protection Clause.)
But there are surely ways of questioning Kavanaugh to elicit the same sorts of insights into his thinking. The former trial lawyers among the Senators should be able to do that. Perhaps one approach might be, "How would an originalist Justice have voted in those landmarks?" And "How would a Justice who believed in following settled principles have voted?" Or "How would a judicial philosophy of original intent be applied to those landmarks?" And "How would a judicial philosophy of following settled principles apply?"
Would Judge Kavanaugh be honest and acknowledge that those landmarks were possible only because the Court disregarded original intent and rejected settled principles?
Or would he dissemble and attempt to explain how those landmarks are actually true to original intent or settled principles? That, of course, would be extremely disingenuous--either because such an attempted explanation would be untrue and he undoubtedly understands that, or because the "original intent" and "settled principles" that he embraces are so devoid of any concrete meaning as to be utterly deceptive.
Or would Judge Kavanaugh surprise everyone and deny that he believes in originalism or in following settled principles?
In any event, Judge Kavanaugh must be pressed on these issues at the confirmation hearing. That doesn't mean that he will be. Either because the questioning will be uninformed or inept or timid or all of those. Or because any such substantive, probing questions will be blunted by his being unresponsive or by the protective wrangling and obsequiousness of his supporters.
Having faithfully watched many confirmation hearings, I don't expect too much in the way of revealing, forthright, enlightening exchanges between the senators and Judge Kavanaugh. It's more likely that we will hear supporters telling him how wonderful he is and lobbing softball questions to him; opposing senators being frustrated in trying to get direct and candid responses to their questions; and the nominee himself serving up some nice sounding pablum to appeal to his supporting senators and to their voters.
Yes, that's more likely. But let's hope for some surprising substance--every once in a while we get some. Perhaps Judge Kavanaugh will address the cherished landmarks discussed above and others, and acknowledge that they would have been decided differently if the Court had applied "original intent" and "settled principles." In that unlikely event, the Senate and the American people might understand just how drastic the consequences of his vision of judicial decision-making would be.
On the other hand, if Judge Kavanaugh does not respond honestly, then at least those who follow these nomination proceedings closely will know that he avoided giving truthful answers, and we will have learned something disquieting about his integrity.
There's also the possibility--the likelihood in my view--that any answers he gives would be unresponsive, or that he would simply refuse to answer for some ethically-sounding reason. In that case, we can be sure that he'd rather conceal his answers than to acknowledge them publicly.
Unfortunately, as polarized as the Senators and the country are, none of Judge Kavanaugh's answers or non-answers may make any difference. Virtually all the senators are likely to vote along party lines. Nevertheless, the tough questions about his vision of judicial decision-making should be asked. At the least, one way or the other, we would get some sense of the Justice we're getting.