Confirmation hearings for Judge Brett Kavanaugh will, if past is prologue, subtract significantly from the public understanding of what a Supreme Court justice is supposed to do. Senators will invoke impressive-sounding principles with the weight of cotton candy. We will hear that “judges should not legislate from the bench,” even as no one will discuss when exactly the Supreme Court is supposed to have done that in the past 50 years. We will hear platitudes such as the one offered by John Roberts, when he compared a judge to an umpire who calls “balls and strikes,” ignoring that in baseball, umpires have radically different strike zones. We will hear calls for “judicial restraint,” which translated means, “I want the court to exercise restraint except when it can reach a decision I approve of.” We will hear Kavanaugh, like every nominee before him, solemnly intone that Roe v. Wade is a “precedent,” which means precisely nothing because all Supreme Court decisions are precedents — until the court overrules them.
Mostly, we will hear political arguments disguised as constitutional questions. But when the Senate Judiciary Committee ponders the nomination of Kavanaugh, its most urgent task is to delve not into Kavanaugh’s politics — he’s a lifelong, committed conservative — but to reach a reasonable conclusion about his judicial philosophy. Fortunately, Kavanaugh himself has given us a way to cut through the political posturing of committee members — some of whom would be reduced to incoherence were it not for the talking points provided by their staffs, others of whom will give 10-minute speeches disguised as questions — and to cut through the bland assurances of Kavanaugh that he will not pass any laws, that he will be restrained, and that, yes, these cases are precedents. Kavanaugh has given us a road map by which we can see with near certainty how he would approach Roe and similar cases as a Supreme Court justice. It comes in the form of a lecture delivered last September at the American Enterprise Institute, a lecture devoted to “the Constitutional Statesmanship of Chief Justice William Rehnquist.”
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The right to privacy first announced (or discovered, or invented) in 1965’s Griswold v. Connecticut is the foundation for some of the most controversial cases since: the right to an abortion, the nullification of anti-sodomy laws, the enshrining of same-sex marriage as a constitutional right. Each of these decisions rested on that landmark case, which overturned a Connecticut law that made birth control illegal.
The debate between “originalists” like Scalia, and advocates of a “living Constitution,” exemplified by Justice Stephen Breyer, is really a debate about Griswold. Originalists believe, in the words of Northwestern law professor Steven Calabresi “that the constitutional text ought to be given the original public meaning that it would have at the time that it became law. “Living Constitution” justices believe, in Calabresi’s words, “that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment.” The more ardent an “originalist” a justice is, the more likely she or he will find the reasoning in Griswold — the reasoning that underpins Roe v. Wade as well as the right to same-sex marriage announced in Obergefell v. Hodges — unpersuasive, and thus the more likely that justice will be to limit or even overturn these rulings.
And in his lecture on Rehnquist’s judicial philosophy, Kavanaugh identified himself as an “originalist” from beginning to end. Compared to the anodyne answers that Kavanaugh — like most nominees before him — is likely to provide to the Senate Judiciary Committee, this lecture could not be clearer about how he would act as a Supreme Court justice.
Kavanaugh summarized his view of the Constitution this way: “As I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning, which absent constitutional amendment continue to bind us as judges, legislators, and executive officials.” This is the foundational belief of the originalists: If you want the Constitution to guarantee a right of privacy, pass an amendment. If you want a state to repeal a stupid, intrusive law, pass a bill. And if, say, the political power of the Catholic church in Connecticut makes it impossible to repeal a ban on birth control, so be it.
He returned to the theme a few moments later: “In the views of some,” he said, “the Constitution is a living document, and the Court must ensure that the Constitution adapts to meet the changing times. For those of us who believe that the judges are confined to interpreting and applying the constitutional laws as they are written and not as we might wish they were written, we too believe in a Constitution that lives and endures and in statutes that live and endure. But we believe that changes to the constitutional laws are to be made by the people through the amendment process and, where appropriate, through the legislative process, not by the courts snatching that constitutional or legislative authority for themselves.”
But Kavanaugh’s praise for a 1976 law review article by Rehnquist makes his judicial philosophy even more clear. In the article, as Kavanaugh describes it, Rehnquist rejected the idea that “nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.” Kavanaugh goes on to say, “In short, Rehnquist stated, the Constitution does not put the popular branches in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by then, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”
What may be most interesting here is what Kavanaugh does not say about a controversy that dogged Rehnquist for years. In 1952, when the Supreme Court as wrestling with the issue of school segregation, one of the realities was that, thanks to the rules of the Senate, a relatively small minority was able to bottle up any attempt to deal with state-sponsored white supremacy by federal legislation, much less by constitutional amendment. It was also a reality that the Southern states, by denying most blacks the right to vote, were themselves illegitimate political institutions. It was in this context that the court was considering overruling Plessy v. Ferguson, an 1896 case that had upheld segregation. As a Supreme Court law clerk, Rehnquist wrote a memo to Justice Robert Jackson that said, “I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.” Rehnquist later claimed— less than convincingly — that he was simply encoding the tentative views of Jackson. Either way, declining to join the unanimous majority in that case — you might have heard of it; it’s called Brown v. Board of Education — would be consistent with the notion that courts are not to step in just because the political branches have not acted.
If it seems unfair to saddle Kavanaugh with the views of one law review article, it is Kavanaugh himself who willingly placed that saddle on his back. “I read Rehnquist’s Texas Law Review article when I was a first-year law student,” Kavanaugh says, “and it’s impossible to overstate its significance to me and how I first came to understand the role of a judge in our constitutional system. The article stood then as a lonely voice against the vision of the Supreme Court that was being promoted by most Supreme Court justices and by virtually all law professors at the time. … In my view, Rehnquist’s article is one of the most important legal articles of all time.”
Rehnquist was not on the bench when Griswold was decided, but he was one of the two dissenters when Roe v. Wade “constitutionalized” a right to abortion. “Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights,” Kavanaugh said. “But he stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion, even where the mother’s life was in jeopardy, would violate the Constitution, but otherwise he stated the states had the power to legislate with regard to this matter.” (Question: are rights “rooted in the traditions in conscience of our people” any more derived from the Constitution’s text than the “unenumerated rights” mentioned in the Ninth Amendment?)
“It’s fair to say,” Kavanaugh summarized, “that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either on Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of … judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
If all this does not provide a clear enough view of how a Justice Kavanaugh would regard the argument over Griswold and its creation of a constitutional right to privacy, consider his admiring use of a Rehnquist dissent in a 1977 case involving birth control devices. Referring to the men who fought the Civil War and then shaped the 14th Amendment, Rehnquist wrote: “If those responsible for these amendments by feats of valor or efforts of draftsmanship could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men’s room of truck stops, notwithstanding the considered judgment of the New York legislature to the contrary, it is not difficult to imagine their reaction.”
Despite all this, we still don’t know that a Justice Kavanaugh would leap at the first chance to overturn Roe v. Wade or Obergefell v. Hodges. He might prefer the less provocative route recently taken by conservative court majorities to steadily limit their reach — to permit states to make abortion increasingly difficult to obtain, or to broaden religious objections to accommodating gay Americans.
But there is no way to read Kavanaugh’s words without concluding that he roundly rejects the core foundation in Griswold on which those rights, and a raft of other decisions, rest. The Senate hearings offer a chance to paint a clear picture of Judge Kavanaugh’s philosophy, assuming the senators can put aside their canned talking points and their lust for TV time to take it.