A Note to the Reader: The contents of this essay were written months before Brett Kavanaugh's nomination hearing. Therefore, this piece is not written with knowledge of Kavanaugh's alleged sexual assault in mind. This essay is only a review of Judge Kavanaugh's judicial philosophy and record, and discusses nothing at length to his character.
In regards to Kavanaugh's sexual assault accusation, I definitely commend Dr. Ford's decision to come forward and share her story. Dr. Ford is a brave and intelligent woman and deserves to be heard. I would be more than happy to stand by her should proper evidence convict Kavanaugh of sexual assault. Until so, the author of this piece will remain anonymous to avoid backlash.
The sudden retirement of Justice Anthony Kennedy on June 27 left many people shocked, including myself, and a lot of people excited. Since his appointment to the Supreme Court, Justice Kennedy was a major swing vote. Based on his judicial record, Kennedy would often decide cases on an individual basis rather than deciding on cases based on party ideology. For example, he upheld abortion rights in Planned Parenthood v. Casey (1992) while striking down federal laws banning corporations from spending unlimited amounts of money in Citizens United v. FEC (2010). Because of his unpredictability, the Supreme Court was balanced. When Justice Kennedy retired, many Democrats feared that the Supreme Court would lean conservative since President Trump would pick the new nominee, and many Republicans were excited to finally get an opportunity to change the Supreme Court for generations. When Trump announced Brett Kavanaugh as his Supreme Court nominee, a lot of fearmongering and harsh rhetoric followed the announcement. A lot of misinformation was spread. Let’s introduce the man in question.
Brett Kavanaugh is a 53-year-old Circuit Judge on the United States Court of Appeals of the District Colombia Circuit (CNN, 2018, para. 3). When on the DC Court of Appeals, his decisions indicate that he is an originalist and a conservative. There are two main ways to interpret the U.S Constitution: the originalist, and the “living document” approach. Originalism attempts to read the Constitution “as is” and aims to mimic what the Founder Fathers intended, whereas, interpreting the Constitution in the context of our current time is the “living document” approach. Out of these two interpretations, Kavanaugh is an originalist. However, his originalism is put under question in the case Seven Sky v. Holder in which Kavanaugh compared the Affordable Car Act’s individual mandate to a “tax.” This comparison, conservatives argue, describes the individual mandate incorrectly since most conservatives view the individual mandate as a “penalty” and not a “tax” (Singh, 2018, para. 2). With the individual mandate gone with the passage of the Tax Cuts and Jobs Act (2017), this comment does not hold too much substance, but it will come back if the Tax Cuts and Jobs Act is repealed or amended to reinstate the individual mandate. Despite that case, Kavanaugh has been strong on 1st and 2nd Amendment rights and is pro-law enforcement.
Another issue that Kavanaugh is clear on is Chevron Deference. Chevron Deference comes from the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. According to Oyez, this case called into question whether the Clean Air Act “permit[ed] the EPA to define the term ‘stationary source’ to mean whole industrial plants only, which allows plants to build or modify units within plants without the permit” (Oyez, 2018, para. 2). In a 6-3 decision, the Supreme Court ruled in favor of Chevron USA and argued that the regulations defined by the EPA are reasonable of the “stationary source” line within the Clean Air Act. This decision led to the Chevron Deference doctrine which allows the courts to use a federal agency’s definition of an unclear statute within a Congressional Act when interpreting said act (Oyez, 2018, para. 3).
For example, Congress decides to pass a law banning “unusual and offensive” books in schools. The law would specify that the Department of Education must decide what books to ban. The DOE could define “unusual and offensive” books as being racist, sexist, or bigoted in nature and banned The Catcher in the Rye, Adventures of Huckleberry Finn and The Canterbury Tales. Furthermore, if this book ban is challenged in the Supreme Court, the justices could apply the Chevron Deference when deciding whether the book banning act violates the First Amendment or not. If the Supreme Court decides that the DOE’s definition of “unusual and offensive” means racist or misogynistic the Court can uphold this law. Chevron Deference gives too much power to the federal agencies and blurs the lines between the executive and judicial branches, is easily exploitable by future presidential administrations, and future politicizes the federal agencies.
Kavanaugh shows some uncertainty on abortion rights issues. When pressed on his personal opinion on Roe v. Wade, Kavanaugh refused to answer the question outright. He told Senator Schumer that it would not be “appropriate” to provide his personal opinion on the case (Foran & Biskupic, 2018, para. 1). Furthermore, in the case involving a 17-year-old illegal immigrant seeking an abortion, Kavanaugh voted to delay her abortion arguing that granting her abortion on demand would create “a new right” for illegal immigrants. Furthermore, he also argued that delaying her abortion does not put an undue burden on the woman (Foran & Biskupic, 2018, para. 2). Because Kavanaugh did not clearly oppose the minor’s abortion and refused to give a clear stance on Roe v. Wade, I believe that he will be either liberal or conservative on the issue of abortion.
Overall, I think that Brett Kavanaugh’s judicial philosophy is mostly conservative, thus a positive candidate for President Trump to choose. Personally, I think that Kavanaugh would be enough to guarantee the conservative tilt of the Supreme Court and whether that is good or bad for the country can only be decided on future cases. I do not believe that Kavanaugh will join with the other conservative justices to overturn Roe v. Wade. Kavanaugh is a person who follows precedent. It is clear that Justices Thomas, Alito, and Roberts are opposed to Roe v. Wade as exemplified through their decisions in Burwell v. Hobby Lobby and Whole Woman’s Health v. Hellerstedt (Oyez, 2018, para.4). Furthermore, Justice Gorsuch is a reliable anti-abortion vote because of his decision in Little Sisters of the Poor v. Burwell and Hobby Lobby Stores v. Sebelius (Howe, 2017, para.8). I believe that Kavanaugh’s moderate conservative stance will hamper the case’s overturning.
However, I do believe that in a case involving religious freedom vs. abortion rights, Kavanaugh will definitely vote against abortion rights in favor of religious freedom. Kavanaugh’s record on religious freedom is very solid, for example, in the case Archdiocese of Washington v. WMATA, Kavanaugh argued that WMATA’s ban on Christmas advertisements is “pure discrimination” and in Priest for Life v. HHS Kavanaugh sided with the Priest for Life arguing that forcing Priest for Life to provide contraceptive coverage “substantially burdened the individual’s exercise of religion” (Lucas, 2018, para.12). If in the future, the Supreme Court is faced with an abortion vs. religious freedom case, then religious freedom will be heavily favored to win.
Although he decides cases based on the Constitution, Kavanaugh would look at precedent and the evidence when deciding cases. In his acceptance speech, he remarked, “a judge must interpret the Constitution as written, informed by history and tradition and precedent” (National Law Journal, 2018. para.6). The aforementioned factors will further hinder the full repeal of Roe v. Wade because the Supreme Court does have a history of upholding abortion rights in Webster v. Reproductive Health Services (1989) and Stenberg v. Carhart (2000) but rolled back against abortion rights in Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007).
It is important to note that Supreme Court decisions are not set in stone. After all, Supreme Court cases are decided on a diverse array of ideas and backgrounds; however, I am not arguing that certain ideas, certain justices are “smarter” or more “correct” than others. What I propose is that each case and decision rationale should be analyzed on whether the decision and the rationale upholds or undermines the Constitution. The Supreme Court’s rollercoaster of originalism and “living document” approaches have shaped the United States as it is today. Because of the Supreme Court’s inconsistency on Constitutional interpretation, some preceding decision should be looked at with skepticism especially those made with politics in mind.
For example, Dred Scott v. Sandford was a precedent case for decades until it was nullified by the 13th and 15th Amendments. Although this case is on the extreme side, it demonstrates that Supreme Court justices are fallible. They will make decisions that will be morally and Constitutionally questionable. Many would argue that Citizens United v. FEC tramples on the First Amendment of the common people and needs to be overturned. Other will argue that Roe v. Wade is an overreach of the court and is the pinnacle of judicial activism. Precedent should always be taken with a grain of salt, and it should not be a frame by which to judge cases. Look to precedent for inspiration not as a legal cheat sheet.
What I like most about Brett Kavanaugh is his devotion to interpreting the Constitution as is as he remarked many times in his acceptance speech. Interpreting the Constitution as a living document leaves open the possibility of confirmation bias. In 2006, at a Senate Confirmation hearing, Kavanaugh said, “I believe very much in interpreting text as it is written and not seeking to impose one’s own personal policy preferences into the text of the document” (French, 2018, para.10). Because of his judicial record, writing, and explanations of how he decides cases, he is less of a judicial activist and practices judicial restraint. Judicial activism politicizes cases and decisions will be made on party lines and not on what the Constitution has to say. Furthermore, I agree with many of his court decision, and I mostly align with him politically. As I mentioned before, Brett Kavanaugh is pretty center-right because of his stance on religious freedom, the powers of the federal government and the 1st Amendment. He seems like a rational person who wants to see the evidence before making a decision on a case. Kavanaugh is definitely not some zealot who decides on emotional or political ground and because of those reason I would like to see Kavanaugh placed on the Supreme Court.
Moving forward, the Supreme Court was established to interpret the Constitution and use said interpretation to settle civil or national suits and take on tough legal questions. Cases taken before the Supreme Court will vary on rights, governmental powers, and legal constitutionality. It is the job of the Supreme Court to answer these questions so that the Executive and Legislative Branches will have to shape their policies and regulations around the Constitution. The Supreme Court and any other Court system in the United States is not a place to “legislate from the bench” based on political whim or grant privileges to one group over another. The job of the Supreme Court is to keep the two other branches in check and uphold the Constitution when the other two branches fail to do so.
The Supreme Court should remain independent of any political biases and just stick to interpreting the U.S Constitution and checking the power of the Legislative and Executive Branch as the Founding Fathers intended. However, that ideal of the Supreme Court has changed since the founders died. Currently, the Supreme Court nomination is very political. The Trump Presidency has polarized the country with no room for middle ground. Any person he picks will be grilled by Democratic Senators and the mainstream media. Nowadays, the politicization of the Supreme Court is almost irreversible with justices having clear stances on major political issues.
Would Brett Kavanaugh reverse or contribute to the court’s politicization? In my opinion, Kavanaugh would cut back the Supreme Court’s politicization. As I mentioned before, Kavanaugh is an originalist; he is a person who follows the Constitution when deciding cases. What the Supreme Court needs is a justice who knows the law well and has a fair and reasonable judgement. Kavanaugh fits both criteria.
Brett Kavanaugh Fast Facts. (2018, July 16). Retrieved from https://www.cnn.com/2018/07/16/us/brett-kavanaugh-fast-facts/index.html
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (n.d.). Oyez. Retrieved August 16, 2018, from https://www.oyez.org/cases/1983/82-1005
French, S. (2018, July 26). What Brett Kavanaugh's Previous Hearings Tell Us About His Judicial Philosophy. Retrieved August 144, 2018, from https://www.dailysignal.com/2018/07/24/what-brett-kavanaughs-previous-hearings-tell-us-about-his-judicial-philosophy/
Foran, C., & Biskupic, J. (2018, July 10). Where Supreme Court nominee Brett Kavanaugh stands on key issues. Retrieved August 10, 2018, from https://www.cnn.com/2018/07/09/politics/kavanaugh-on-the-issues/index.html
Howe, A. (2017, March 09). Gorsuch on abortion, religion and reproductive rights. Retrieved September 9, 2018, from http://www.scotusblog.com/2017/03/gorsuch-abortion-religion-reproductive-rights/
Lucas, F. (2018, July 19). These 6 Cases Show How Brett Kavanaugh Might Rule on Religious Freedom. Retrieved September 9, 2018, from https://www.dailysignal.com/2018/07/18/these-6-cases-show-how-brett-kavanaugh-might-rule-on-religious-freedom/
Singh, T. (2018, July 19). Kavanaugh on the Affordable Care Act: Seven-Sky v. Holder. Retrieved from http://www.scotusblog.com/2018/07/kavanaugh-on-the-affordable-care-act-seven-sky-v-holder/
Staff, A. (2018, July 09). TRANSCRIPT: Brett Kavanaugh's Full Remarks at SCOTUS Nomination | National Law Journal. Retrieved August 11, 2018, from https://www.law.com/nationallawjournal/2018/07/09/transcript-brett-kavanaughs-full-remarks-at-scotus-nomination/?slreturn=20180716181456