Kavangh visits the Hill / Photo by Chip Somodevilla, Getty Images
At Kavanaugh’s confirmation hearing, senators should cut through all the gauzy rhetoric about “originalism” and “judicial restraint” and press him on what he actually believes. It’s their only chance.
By Daniel I. Weiner, J.D. and Joanna Zdanys, J.D. / 08.31.2018
Weiner: Senior Counsel
Zdanys: Counsel
Brennan Center for Justice
During Judge Brett Kavanaugh’s confirmation hearings, we are sure to hear much rhetoric about originalism, deference to the democratic process, and respect for precedent.
Judicial conservatives have long accused their more liberal colleagues of ignoring these principles, and — especially in cases involving contentious social issues — imposing their personal preferences in the guise of judicial rulings.
But that begs the question: Have the Court’s more conservative members themselves been faithful to the principles they espouse? At least when it comes to decisions about the rules of democracy, the answer too often is an emphatic no.
Modern judicial conservatism has many variations, but they all tend to be guided by the overarching principles of originalism and judicial restraint.
Originalism, as extolled by leading proponents like the late Justice Antonin Scalia, requires judges to interpret the provisions of the Constitution as they would have been understood when adopted, using the language itself and longstanding tradition as guides. For instance, originalism holds that a punishment should only be considered “cruel or unusual” for purposes of the Eighth Amendment if that would be consistent with the meaning ascribed to those words at the time the Bill of Rights was ratified in 1791, when practices like the death penalty were widespread. The right to “due process” guaranteed by the Fourteenth Amendment should likewise generally mean what it meant when the amendment was ratified in 1868 (when, among other things, nobody would have thought police were required to deliver a “right to remain silent” warning when someone is arrested).
Judicial restraint focuses primarily on deference to the democratic process and elected leaders. Advocates for judicial restraint have often pointed out, as Chief Justice John Roberts did in his dissent from the Court’s 2015 ruling that gay and lesbian couples have the right to marry, that “[the] Court is not a legislature” and can only “say what the law is, not what it should be.” Restraint further encompasses the principle (also championed by Roberts) that the Court should avoid unnecessarily broad rulings when narrower grounds are available.
Conservative-leaning justices (like their liberal colleagues) have also long invoked the principle of stare decisis, under which the Court should normally avoid discarding existing precedent, even if erroneous. Justice Samuel Alito, for instance, recently dissented from a decision striking down unconstitutional racial gerrymandering that he viewed as contrary to the Court’s past cases, intoning that “[a] precedent of this Court should not be treated like a disposable household item — say, a paper plate or a napkin — to be used once and then tossed in the trash.”
But do Alito, Roberts, and their like-minded colleagues practice what they preach? Not when it comes to the laws of democracy.
If there is one ruling that symbolizes the activism of the current Court’s conservative majority, it is Citizens United v. FEC, which struck down limits on corporate political spending and paved the way for the super PAC era in which we live today.
There is nothing restrained about the majority’s ruling in Citizens United, which invalidated critical parts of the McCain-Feingold campaign reform law that was passed by substantial bipartisan congressional majorities. Moreover, the Court had not even been asked to pass on the law’s basic constitutionality. All the plaintiff sought was an exemption for itself from campaign finance restrictions, but the Court went to extraordinary lengths to justify why such an exemption required that the law be invalidated for everyone.
There is also nothing originalist about the decision. As Justice John Paul Stevens noted in his dissent: “To the extent the views of the Framers are discernable and relevant to the disposition of this case, they would appear to cut strongly against the majority’s position … not only because the Framers conceived of speech more narrowly than we think of it … but also because they held very different views about the nature of the First Amendment right and the role of corporations in society.” Indeed, limits on corporate campaign spending had existed in some form for more than a century when Citizens United was decided. The Court brushed that history aside.
Finally, the decision made a mockery of stare decisis. The exact same provisions the Court struck down had been upheld a mere seven years earlier in McConnell v. FEC. The only thing that changed during the intervening time was the makeup of the Court.
Citizens United is no aberration in any of these respects. The majority’s disregard for originalism and unwillingness to defer to the democratic process (or to the expertise of legislators who actually lead campaigns) pervade its campaign finance jurisprudence.
Moreover, these issues are not limited to money in politics. In Shelby County v. Holder, for instance, the majority discarded decades of precedent to strike down key portions of the Voting Rights Act. The Act had recently been reauthorized by overwhelming congressional majorities (including a unanimous vote in the Senate), which Scalia suggested was due not to its efficacy but to a pervasive sense of “racial entitlement.”
That decision also finds little support in any original understanding of the Constitution’s protections for voting rights. Indeed, as Justice Ruth Bader Ginsburg noted in dissent, the Fourteenth and Fifteenth Amendments were expressly intended to give Congress “sweeping enforcement powers” to guard against state voter suppression.
In these cases and many others, the Court’s conservative majority seems to have been guided primarily by distaste for the laws it was reviewing. That, of course, is exactly what doctrines like originalism, restraint, and stare decisis are supposed to prevent.
The point here is not to suggest that the Court’s liberals are more faithful to such principles (or that these principles are invariably the right ones). But if judicial conservatives are going to invoke these ideas to reassure political opponents that they will judge cases in an evenhanded fashion, it is fair to ask whether such assurances are grounded in reality.
Of course, sitting Supreme Court justices are under no obligation to answer questions from Congress. But nominees are. Judge Kavanaugh has presented himself as a faithful originalist who will give due deference to the democratic process and governing precedent. Senators should take the opportunity afforded by next week’s hearing to probe these assertions. It may be their only chance.
Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.