Roberts vs. Trump: Barely Disguised Contempt (Part 2)

Many readers are understandably upset with the Roberts Court's dismantling of the Voting Rights Act and other decisions viewed as politically and socially regressive. But there is another side of Roberts and his Court--perhaps just a slice--that shouldn't be overlooked. Some of the decisions exhibit a different character.

In Part 1, we looked at two majority opinions of Chief Justice John Roberts. One sided with President Trump and one did not. But in both, the Chief Justice's utter disdain for Trump's words and actions could not have been more clear. While upholding the travel ban of Trump's first administration [Trump v. Hawaii (2018)], Roberts contrasted Trump's expressed religious bigotry to the magnanimous and tolerant welcoming of other presidents toward minority religions. And when Roberts more recently wrote to invalidate Trump's tariffs [Learning Resources, Inc. v. Trump (2026)], he made clear how the tariffs seemed the result of fitful recklessness rather than thoughtful consideration. 

There are more than a few other decisions--in which Roberts either wrote for the majority or was part of it--where Trump's major policies or pet preferences were blunted or rejected outright. Sometimes the Roberts majority did so summarily. As in, "give me a break!"

But whether the Roberts-led majority did so summarily or with full deliberation and opinion, recalling a sample of these decisions lends a less monochromatic picture of the Chief Justice and, particularly, his Court's perspective on Trump. Consider these:

(click to enlarge for a better view) 

In Moore v. Harper, Chief Justice Roberts wrote for a 6-3 majority--above dissenting Justices Thomas, Alito, and Gorsuch--to reject a pet constitutional theory advanced by Trump and his allies. The so-called "Independent Legislature Doctrine" would have barred any judicial review of any state legislative gerrymandering.

For example, that doctrine would prevent a state supreme court from ruling that the gerrymandering enacted by the state's legislature violated constitutional rights under the state's law. So, in this case, it would have prevented the North Carolina Supreme Court from ruling that the extremely partisan gerrymandering by North Carolina's Republican controlled state legislature violated the state constitution's guarantees of voting rights and equal protection. In short, the state legislature's gerrymandering would be final and the North Carolina Supreme Court could do nothing about it.

Trump and his allies' pet theory, which was advanced to help guarantee additional pro-Trump voting districts, was emphatically rejected by the Roberts majority. The Chief Justice, together with Justices Kavanaugh and Barrett, voted with the three liberal Justices--Sotomayor, Kagan, and Jackson. According to Roberts' opinion, despite the Supreme Court's hands-off approach to partisan gerrymandering by state legislatures, the state supreme courts are free to engage in the matter and prohibit such gerrymandering under their own state law.

The year before, a similar majority--again headed by Roberts, but before Justice Jackson replaced the retiring Stephen Breyer--had weighed in on another election-related matter against Trump and his allies.

(click to enlarge for a better view) 

In Ritter v. Migliore, the 6-3 Roberts-led majority refused to invalidate certain mail-in ballots--another pet-target of Trump and his supporters. In this case, via a mere order without opinion, the Roberts majority, against the wishes of Trump allies, granted certiorari (i.e., accepted review) and summarily allowed the counting of timely mail-in ballots whose lone defect was their undated envelopes. Once again, Thomas, Alito, and Gorsuch were in dissent.

Last year, despite what seemed to some to be consistent Trump victories at the Court, Roberts-led majorities did stymie numerous efforts by the President, his administration, and his allies. Let's start with foreign affairs.

(click to enlarge for a better view)

In Department of State v. AIDS Vaccine Advocacy Coalition, in another unsigned order, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily sustained a decision of a lower federal court that had directed the Trump administration to pay nearly $2 billion to a global non-profit health organization. In effect, a 5-4 majority mandated that the Trump administration disburse the funds for work already performed in the international AIDS prevention programs. Thomas, Alito, and Gorsuch were in dissent again, this time joined by Justice Kavanaugh.

Also in 2025, the same Roberts-led 5-4 majority rebuffed Trump's claim to immunity from New York State's criminal proceedings against him.

(click to enlarge for a better view)

In Trump v. New York, the then re-elected but not yet re-inaugurated Trump sought to expand the presidential immunity that the Court had recognized the year before in Trump v. U.S. The Court should go further, Trump argued, and recognize immunity for a president-elect--particularly against state court proceedings here. But again, the Chief Justice, joined by the three liberals plus Justice Barrett, summarily rejected Trump's request and allowed the New York proceedings to continue regarding Trump's multiple state convictions for business fraud. Also again, Thomas, Alito and Gorsuch, joined by Kavanaugh, dissented.

[Footnote: I trust you don't take it seriously when those same dissenting Justices--in cases where they like what the states are doing--insist that the Court should defer to the states and allow the states to do what the states think is best. You don't, do you? They certainly don't advocate deference when they don't like what a state is doing.]

A few years earlier, Roberts had authored an opinion for the Court to reject another Trump argument against state criminal proceedings. This case involved Trump during his presidency.

(click to enlarge for a better view)

In Trump v. Vance, during his first term, the president's lawyers made several arguments for immunizing Trump against state grand jury subpoenas. The chief executive of the national government, they argued, should be shielded from bothersome state proceedings; that allowing state investigations of a president would subject him to harassment by any number of states; that a president is too busy to be distracted by state proceedings; etc. The Roberts majority rejected all the arguments and refused to recognize any broad immunity for a president from state process. A president could challenge a faulty state subpoena just like anyone else. But that's it.

Not surprisingly, Justices Thomas and Alito supported Trump and dissented. Moreover, in a concurring opinion, Justice Kavanaugh, joined by Gorsuch, argued that the Court should require a more demanding level of justification for a state subpoena against a president before it can be approved. The Roberts majority declined to do that.

[Footnote: Same as above. You don't really take seriously the dissenters' "we should defer to the states" argument in other cases, do you?]

And here's a more recent case of Trump versus a state from the end of last year. The decision was another major loss for the administration.

(click to enlarge for a better view)

In Trump v. Illinois, the president--against the will of the Governor of Illinois and Mayor of Chicago--sought to activate the state's national guard. Trump claimed the power to do so. His lawyers argued that Trump has such power based both on the inherent constitutional authority of the office of the presidency, and on federal statutes providing for the protection of federal personnel and property. The Roberts-led majority, in response an emergency application brought by Trump, disagreed.

A five-Justice majority--Roberts, the three liberals, and Barrett--joined in an unsigned order rejecting Trump's claim that he could deploy the Illinois national guard to respond to an "invasion or a rebellion or danger of rebellion" in Chicago. That is, against large gatherings in Chicago protesting against Trump's immigration policies and, specifically, the tactics of ICE (Immigration and Customs Enforcement) agents in the city.

The majority held that the Trump administration failed to show that activating the national guard was necessary. Together with Justice Kavanaugh who wrote a separate opinion, the majority upheld the lower court's order halting Trump's actions.

Not surprisingly, Thomas, Alito, and Gorsuch dissented. They argued, among other things, that the president might have inherent constitutional authority to deploy a state's national guard under circumstances such as in this case. The Court, according to them, should have deferred to the judgment of the president--especially in his emergency application.

[Footnote: Same as above. "Defer-to-the-states" principle apparently applies only when the Justices advocating it like what the states are doing.]

In another immigration-related decision earlier last year, A.A.R.P. v. Trump, the Roberts-led majority put rebuffed Trump's deportation policy that elevated brutal efficiency over the barest of fair treatment.

(click to enlarge for a better view)

As part of Trump's policy of removing non-citizens who he claimed were part of a violent Venezuelan gang, he ordered that any Venezuelan citizen (over 14) could be “apprehended, restrained, secured, and removed" under the 1798 Alien Enemies Act. In fact, they were being sent to a hellish maximum-security prison in El Salvador. After winding its way to the Supreme Court, the emergency application of Venezuelan detainees was granted. 

The Roberts-led 7-2 majority, in an unsigned per curiam opinion, ruled that the non-citizens were entitled, as a matter of constitutional due process, to some meaningful opportunity to challenge their removal. According to that majority, the bare notice that was being provided to the Venezuelans, lacking any useful information and only delivered the day before deportation--a description the Trump administration did not deny--“surely does not pass muster.” 

In an opinion by Alito, he and Thomas dissented. Amidst technical, legal arguments, they evinced--[What can I say?]--as little sympathy for the hardship of the immigrants as the Trump administration. The majority was clearly wrong, Alito argued, because the Court didn't have jurisdiction to rule on this emergency application under the procedural posture of the case. Moreover, he labelled the petition for emergency due process relief an "extraordinary demand." 

Whatever the dissenters doubts about the procedural merits of the case, there is no doubt that here, as in other cases thus far identified, Chief Justice Roberts and his majorities were again displaying, at best, impatience with Trump and his policies.

Two more cases. In both of these, the "defer-to-the-states" dissenters did side with the interests of the respective states. But in these cases, the states involved had policies hostile to abortion--a hostility the dissenters favored. So you would certainly expect the dissenters to vote the way they did.

(click to enlarge for a better view) 

In the 2024 case of Oklahoma v. Department of Health and Human Service, the Roberts-led majority supported a pro-abortion position of the Biden administration. The majority rejected the strict hostility towards reproductive choice that has been a hallmark of Trump's presidencies and of his state allies.

In a bare unsigned order, the six-Justice majority--Roberts, the three liberals, Barrett and Kavanaugh--sided with the federal government's decision to deny to Oklahoma several million in funding because that state prohibited abortion referrals and even family-planning counseling. Oklahoma's strict anti-abortion policy contravened the federal Public Health Service Act. In a similarly bare unsigned order, Thomas, Alito, and Gorsuch voted to give Trump-friendly Oklahoma the funds.

As many readers surely know, the Court just issued another abortion-friendly order this month. Once again, the Roberts-led majority sided with reproductive rights and ruled against another Trump-friendly, abortion-hostile state.

(click to enlarge for a better view)

In Danco Laboratories v. Louisiana, the state had sought to stop any shipment of mifepristone into the state. The appeals court below granted Louisiana's request to stop shipments of the abortion-producing medication while litigation was pending. It reasoned that Louisiana was ultimately likely to succeed.

But in an unsigned order of a 7-2 majority, the Supreme Court blocked that ruling. The Chief Justice, the three liberals, Kavanaugh, Barrett, and, this time, with Gorsuch as well, sided with the mifepristone manufacturers and, of course with the women in Louisiana who order it. In ordering the shipments to continue, the majority were apparently not so sure that Louisiana would ultimately prevail.

As one would certainly expect, Justices Thomas and Alito dissented. In his separate opinion, Thomas argued that the 19th century Comstock Act, which prohibits all interstate distribution of contraception and abortion materials, should still be enforced. In his opinion, Alito argued that the interstate mailings of mifepristone effectively undermine the Court's 2022 decision in Dobbs v. Jackson which overruled Roe v. Wade. But the Roberts-led majority seemingly had no interest in expanding the effect of the Trump-instigated Dobbs decision--let alone reviving the Comstock Act.

That's all for now. Did I cherry pick decisions to make my point? Guilty. Did I identify a very limited number of Roberts-led decisions that happened to have a common thread? Yes, guilty.

But the point is that the Roberts Court has not been uniformly supportive of Trump. No, not at all. It might seem that way to some who abhor some of the pro-Trump decisions. To be sure, at times it does seem as though the Court has been issuing one pro-Trump decision after another. Especially after some that might seem shockingly contradictory to established constitutional principles.

But a candid, dispassionate review of the Court's decisions shows that the Court has not been unidirectional when it comes to Trump, his administration, and his policies. And regarding the particular purpose here, Chief Justice Roberts and his majorities have actually handed Trump some very important defeats, and they have increasingly shown an impatience and even utter contempt for this president and his policies.

Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.

In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).


Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).


Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:

• American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.

• Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.

• June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.

• Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.

• Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.

• Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.

• Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.

• Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.

• Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.

Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):

Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!

Some Late 2019 Commentary: Gorsuch, Kavanaugh, Indicting Trump, Cuomo's Court

To begin the New Year, here are a few appearances late last year on radio, TV, and podcast, commenting on a variety of constitutional and judicial matters of national and state interest.

In the coming posts, we'll tend to some other overdue matters.
Meanwhile, wishing all a very happy, healthy 2020!

December30, 2019: Cuomo’s reshaping of the Court of Appeals

In his nine years in the Governor’s Office, Andrew Cuomo has reshaped the state’s highest court. Vin Bonventre, Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School and Editor of the New York Court Watcher blog, shared his insights on the changing dynamic at the Court of Appeals.

 http://www.wcny.org/december-30-2019-cuomos-reshaping-of-the-court-of-appeals/

November 25, 2019: Can New York—or any other state—indict a sitting president?

As the impeachment hearings continue in Washington, New York has been at the center of President Donald Trump’s legal woes. From Federal cases concerning his family charity to investigations of business dealings with banks by State Attorney General Leticia James, the majority of his legal battles are being fought hundreds of miles from Washington—in the Empire State.

On this episode of New York Now, host Ray Suarez sits down with two Constitutional law scholars—Paul Finkelman of Gratz College and Vincent Bonventre of Albany Law School—to discuss what the future may hold for the president’s legal troubles, and what role New York state might play in that future.

https://nynow.wmht.org/blogs/politics/can-new-yorkor-any-other-stateindict-a-sitting-president/

October 7, 2019: Judicial Records of Gorsuch & Kavanaugh, Supreme Court Preview

New York State Bar Assn Podcast: Miranda Warnings

Albany Law Professor Vincent Bonventre returns to discuss the judicial records of Associate Justices Neil Gorsuch and Brett Kavanaugh and the tribal voting nature of the current Supreme Court.

Professor Bonventre then gives us a primer on what types of cases he expects the Supreme Court to hear this Fall, including some hot button issues like abortion, gerrymandering, the death penalty, and immigration.

Make sure you stay tuned to the end as Professor Bonventre continues his tradition of singing a few lines from one of his favorite crooners, Bobby Vinton.

Miranda Warnings is hosted by NYSBA's 118th President David Miranda

https://www.nysba.org/Podcast/MirandaWarnings/Judicial_Records_of_Gorsuch___Kavanaugh,_Supreme_Court_Preview/

Nov. 15, 2019: Discussing President Trump's Tax Returns and the Legal Process

By Nick Reisman 

President Donald Trump has kept his tax returns private, breaking with tradition that candidates for president release them. But now, a subpoena to an accounting firm with the taxes could lead to them being released to New York prosecutors.

Albany Law Professor Vin Bonventre says the question over whether the president can be prosecuted in a criminal case is unclear.    

"Anybody tells you they're certain one way or the other is just speaking nonsense. There isn't anything in the constitution that suggests one way or other the president can be prosecuted or can't be prosecuted while in office," Bonventre said.

In similar cases, like when the court forced President Nixon to turn over recorded conversations in the Oval Office, those help provide a guide.  

"Can we really allow all 50 states to be interfering with the president doing his duties? That may be too much," Bonventre said.

Governor Cuomo this month suggested President Trump changed his residency from New York to Florida to avoid having his taxes released.  

"My hypothesis is Mr. Trump changed his residence for legal purposes," Cuomo said.  

But Bonventre says that's unlikely.  

"That shouldn't have anything to do with it. If one person commits a crime in one state and then goes to another state, that doesn't immunize them from prosecution," Bonventre said.

The president's legal team has said he is immune from prosecution while he is in office.

https://spectrumlocalnews.com/nys/capital-region/news/2019/11/15/discussing-president-trump-s-tax-returns-and-the-legal-process?cid=share_email

(Part 2) Questions for Nominee Kavanaugh

So what about this "originalism" and "settled principles" approach to judicial decision-making that Judge Kavanaugh touts? Sounds fine. We'll see.

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. [1928]--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 [1942]--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.

Questions for Nominee Kavanaugh (Part 1)

The battle now begins.

As we all now know, federal appeals court Judge Brett Kavanaugh of the D.C. Circuit was nominated for the Supreme Court this week by President Trump. To Republicans, he is apparently the greatest thing since sliced bread. To Democrats, he is apparently the prince of darkness. Well, like most of us, he's somewhere in the middle.
(His official biography is linked below.)

He is ideologically conservative. Maybe very much so. Maybe extremely so. To liberals--or  progressives or whatever we call ourselves today--his views are diametrically opposite. Anathema.

And this is not about judicial activism versus restraint. (Do conservatives--whose Justices in the modern era have been even more active than the liberals ever were in overturning the choices of the other branches and the states--speak in those terms anymore? Except perhaps the uninformed when speaking to the uninformed.)

Nor is it really about any interpretive methodology--i.e., strict versus loose construction, literalism versus consequentialism, originalism versus a living Constitution, etc., etc. Nor, relatedly, about the proper role of the judiciary in applying law versus making it. No, it's about the substantive issues.

Come on. Let's put the cards on the table. The substantive issues are what these nominations and confirmations have been all about. The talk about the properly restrained judicial role versus activist judges, etc. etc.--and also about credentials, qualified or unqualified--is the thinnest veil of what is really driving the support or opposition to a nominee.

So, for example, today it is really about a woman's right to choose, about gay rights, about religious exemptions from anti-discrimination laws and religion in the public arena, about gun rights, about affirmative action, about campaign finance, about racial and partisan gerrymandering, about voting rights, about worker protections versus business freedom, about rights of the accused, about privacy protections in the digital age, etc., etc.

That's what it's really about. But, of course, we don't get candor about that from a Supreme Court nominee or from the nominee's supporters. And we almost certainly will not get candor from nominee Kavanuagh or his Republican supporters. (We wouldn't --and did not--get that from Democratic nominees or their Democratic supporters either.)

Instead, we are sure to get lots of the routine, blah blah pablum about faithfully applying the Constitution, about simply interpreting the Constitution and other laws according to what they say and mean rather than one's personal views, and about not making policy from the bench because that is the province of the other branches. But little if anything of real substance about the actual substantive issues of the day--which is what everyone really wants to know about.

But answering such questions is dangerous for a nominee. The revelations might prove extremely unpopular or open other delicate areas for questioning. So the responses will either be finessed or the nominee will simply refuse to give an answer based on some ethical pretext. (Judicial ethics only prohibits actually promising to rule a particular way or expressing firm views about a pending case. As conservative idol Justice Scalia explained, we would not want a judge who was actually devoid of views about the important issues of the day. Yes, I'm agreeing with Scalia on that one!)

So what to do when questioning a smart, politically experienced, well-schooled nominee like Judge Kavanaugh at the confirmation hearings? How to get some actual insight about the kind of Justice he would be? Yes, he can be questioned about his opinions as an appellate judge. But any that might seem wrongheaded or be unpopular could be explained away by Kavanaugh as simply following the Supreme Court's precedents which bind the lower courts, or as applying existing law without regard to his own personal views.

But then there are his personal views about the judicial role. Views that he has expressed about how courts and judges should interpret the law. Particularly the Constitution.

Kavanaugh is being lauded for being an "originalist" and "textualist" in the mold of the late Justice Scalia. That is, the Constitution should be interpreted according to the original or historic meaning of the text. Period. No "living Constitution" to adapt to the changing values of justice and equality of the day. Whether he is actually an "originalist" or or a "textualist" not is another story. So let him speak for himself:

The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution.
(George Mason University, Antonin Scalia Law School [2016])

Judge Kavanaugh said "It’s not complicated."

It sure isn't. It's simplistic, contrary to the Constitution itself and, if actually followed, would have profoundly drastic implications for the most basic liberties Americans today enjoy and take for granted.

And that is why neither conservative nor liberal Justices actually adhere to such originalism/textualism, except when it suits them. And more to the point here, at confirmation hearings, the self-proclaimed originalists and textualists--and other species of supposed judicial restraintists--will nevertheless embrace cherished landmark decisions that were utterly non-originalist, non-textualist, and very activist. E.g., Brown v. Bd. of Educ, outlawing racial segregation--which was certainly not what the 14th Amendment was intended to do, nor what its text requires.

Guaranteed, no Supreme Court nominee today will decry that activist, policy-making Brown landmark. And there are plenty of others. In fact, most landmarks are exactly that--activist and policy-making. They change what had been original or what the text itself means.

But before continuing with other landmarks, about which Kavanaugh ought to be asked to reconcile with his originalism/textualism (and they cannot honestly be so reconciled), let's turn to something even more basic. In fact, maybe the most basic. It has to do with the nonsensical complaint, repeated ad nauseam as though religious dogma, that a right should not have been recognized and enforced by the Court because it is not mentioned in the Constitution. Or as Judge Kavanaugh put it in the excerpt above: "Don’t make up new constitutional rights that are not in the text."

Yes, it sounds good. It sounds "uncomplicated," to quote Kavanaugh again. But it is the purest nonsense. And it's a danger to the American scheme of "ordered liberty"--to borrow from Benjamin Cardozo.
[He, of course, was one of the greatest jurists in our history, and he well-understood that such originalism and textualism and not-mentioned-in-the-text (as well as judges-should-not-make-law-or-policy) to be utterly contrary to what judges necessarily do. And to Cardozo, you can add Holmes and Friendly and Posner and countless others of our most venerated and candid jurists who understood and acknowledged the same.]

The Founders and the Framers of the Constitution themselves also understood this. Indeed, we nearly didn't have a Bill of Rights because they feared that "it's not in the text" or "it's not mentioned" would be argued in the future. They worried that by including any rights in the text of the Constitution, those that were not mentioned in the text would later be denied.

To allay such fears, a provision was included in the Bill of Rights to foreclose such a "it's-not-in-the-text" argument. That 9th Amendment make clear, in no uncertain terms, that the rights specified elsewhere in these first amendments was necessarily a very limited list, and that unmentioned rights--i.e., those not in the text!!!--were not to be denied.
(9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

This was James Madison's attempt to put a nail in the coffin of the "it's-not-in-the-text" argument. It was his way of saying to Americans at the time and in the future, "don't worry that a right doesn't happen to be mentioned."

That is not to say that every right that might be claimed is entitled to constitutional recognition and protection--i.e., that it is "implicit in the American scheme of ordered liberty." (To again quote Cardozo.) But the mere fact that such a right is not "enumerat[ed]" in the text is irrelevant.

Judge Kavanaugh ought to be questioned about the 9th Amendment. And he ought to be asked whether his "not in the text" argument is exactly what the Founders and Framers feared, and whether he knows that his argument nearly killed the idea of having a Bill of Rights.

Let's consider a few of those "constitutional rights that are not in the text" and which, supposedly, according to Judge Kavanaugh (and other advocates of originalism and textualism), the courts ought not to "make up." What about:

• the right to get married--yes, even for heterosexuals. NOT in the text.
• the right to have sexual relations with another consenting adult--yes, even if with a spouse. NOT in the text.
• the right to have children--yes, even if for lawfully married couples. NOT in the text.
• the right to raise one's children--yes, absent abuse or neglect. NOT in the text. 
• the right to hug or kiss your spouse or parents or children or friend--NOT in the text.
• the right even to have a friend--NOT in the text.
• the right to associate in a group of friends or like-minded individuals or to play games. NOT in the text.
• the right to choose whether or not to eat lunch or another meal, or when to eat dinner or any other meal. NOT in the text.
• the right to go for a stroll in your neighborhood. NOT in the text.
• the right to sing in the shower or listen to music or read poetry. NOT in the text.
• "the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men" (Justice Louis Brandeis). NOT in the text.

[The entire oft-cited excerpt from Brandeis's renowned and later vindicated and adopted dissent in Olmstead v. United States (1928):

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."] 

Need I go on? Most of the most basic rights and liberties in living in a free society are NOT in the text of the Constitution. That document is not, and was never intended to be, a catalog of such rights. And again, to make that point clear, the 9th Amendment was included among the original ten, in the hopes of warding off the "it's-not-in-the-text" argument. But that argument keeps rearing its ugly and ignorant head. One must wonder if Judge Kavanaugh, his ilk and his supporters actually believe it.
[For further discussion, see Supremely Awful Arguments: Constitutional Nonsense (Part 2).]

In fact, it's a sure bet they actually don't believe it and don't practice it unless it gets them where they want to go. (More about that in the next post.) But for now, the point is that Judge Kavanaugh's insistence, that judges ought not to "make up" rights that are "not in the text of the Constitution," is actually contrary to the Constitution itself, which explicitly warns against denying rights that are NOT in the text.

Judge Kavanaugh ought to be questioned about all of those "NOT in the text" rights, and others. He ought to be asked which ones the courts and judges--and especially the Supreme Court--should not be recognizing and protecting, simply because they are "not in the text" as he says. And does he really believe that the fundamental principles of liberty that underlie the body of the Constitution and the Bill of Rights do not protect such basic freedoms--just because they are "not in the text?"

In addition to being at odds with the Founders' and Framers' understanding that rights did not need to be enumerated in the Constitution, this not-in-the-text argument is in fact contrary and irreconcilable with most of the essential and cherished rights that courts and judges--including the Supreme Court--have recognized and protected in landmark decisions. They were recognized and protected only because the pseudo-constitutional nonsense of not-in-the-text was disregarded.

It is these rights, protected by courts and judges--and specifically in Supreme Court landmarks--that will be the focus of the next post on Judge Kavanaugh and his avowed originalism and textualism.


[For Judge Kavanaugh's official U.S. Court of Appeals biography: https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK]