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07/13/2018

Anthony Gaughan on Judge Kavanaugh and Originalism
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan: A Window into Brett Kavanaugh’s Judicial Philosophy (discussing this roundtable discussion from 2011 published in the George Washington Law Review).  From the core of the post:

To a striking degree, Judge Kavanaugh’s 2011 remarks suggest that his judicial philosophy most closely resembles that of the late Justice Antonin Scalia, a frequent ally of Justice Thomas.

Although the roundtable’s topic was the importance of history in judicial interpretation, Judge Kavanaugh took a contrarian view, indicating that he does not think historical context is all that helpful to judges. During the dialogue, he pointed out that the framers were not “all of one mind” and in fact had “wildly different views.” As an example of the diverse viewpoints expressed at the Constitutional Convention, Kavanaugh noted the stark contrast between how Alexander Hamilton of New York and George Mason of Virginia viewed the proper role of the federal government.

According to Kavanaugh, the framers’ diverse and often conflicting opinions should make judges skeptical of historical evidence, even in the case of a document as renowned and influential as the Federalist Papers. As the judge explained during the roundtable:

“The point being, be careful about even The Federalist . . . point of view. That’s not the authoritative interpretation of the [Constitution’s] words. You’ve [also] got to be careful about some of the ratification debates. You’ve got to be careful about different people at the Convention itself. They had different views.”

As an aside, compare this view to the claim, discussed in a post earlier this week, that originalists must think the framers all agreed on everything.

More from Professor Gaughan:

Under Judge Kavanaugh’s approach, history has value only if it helps judges “figure out what the words meant.” But since almost every word in the Constitution resulted from some sort of compromise, history ultimately offers very little of value to judges according to Kavanaugh. But that conclusion did not trouble him at all. History, he maintained, isn't really all that necessary in any case because “the words actually tell us a lot more than we often assume. . . [T]hey’re not so complicated. It’s not mystifying to actually read this and get some meaning out of it.”

Above all, Judge Kavanaugh made clear the tremendous interpretive importance he places on the Constitution’s text:

“The text of the document is not just something that we’re supposed to look at just for interest. It’s law. It is binding law. It says in Article VI it’s the supreme law of the land, and it is binding on us. Those words in the document are binding on us in all three branches of the federal government, not just as judges, unless it’s amended.”

And further:

To the extent that the 2011 roundtable provides a window into his thinking, Judge Kavanaugh’s judicial philosophy bears all the hallmarks of Antonin Scalia’s judicial philosophy.

As Justice Scalia famously declared, “The text is the law.” Both an originalist and a textualist, Scalia insisted that courts should resolve constitutional disputes by ascertaining the original public meaning of the Constitutional text. Likewise, in statutory cases, he maintained that the courts should stick to the text and reject the use of legislative history, which he derided as the “last hope of lost interpretive causes, that St. Jude of the hagiology of statutory construction.” For example, in a 2007 case he rebuked the majority’s reliance on legislative history and announced in his dissent that “today’s decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.”

Kavanaugh’s 2011 remarks embrace Scalia’s interpretive approach and apply it to the Constitution’s text. Accordingly, to the extent the roundtable discussion reflects Kavanaugh’s current views, it seems likely he will build a Supreme Court voting record every bit as conservative as that of Justice Scalia, which in turn would position Kavanaugh much closer to Justice Thomas than to Chief Justice Roberts. 

Replacing Kennedy with a Scalia-type justice will produce a seismic change in the Court’s center of gravity on social issues. Justice Kennedy provided a reliably conservative vote on economic and regulatory issues, but he sided with the liberal wing on abortionsame sex marriagejuvenile sentencing, and the death penalty, using reasoning and sources that went far beyond the Constitution’s text. Kavanaugh’s laser-like focus on constitutional wording will likely place in jeopardy all of the 5-4 decisions in which Kennedy sided with the liberals. 

Although I generally agree with the analysis, I think it may overstate the Scalia/Kavanaugh rejection of history.  Scalia used history quite a lot.  What Scalia objected to (and what I suspect Judge Kavanaugh objects to) is appealing to history to speculate about the Framers' intentions (described in an abstract and malleable way), as opposed to appealing to history to resolve the meaning of ambiguous words and phrases in the Constitution.