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10/09/2018

Justice Kavanaugh, Originalist?
Michael Ramsey

Congratulations to Justice Brett Kavanaugh, 114th Justice of the U.S. Supreme Court.  But will he be an originalist Justice?

At the confirmation hearings (before they took an unpleasant turn), he said he would be (see this excerpt of the hearings compiled by Randy Barnett).  In an essay for Politico (for the symposium linked yesterday), Professor Geoffrey Stone (Chicago) says instead that he will be a politically motivated conservative.  He writes

But the five “conservative” justices now on the court ... will eagerly invalidate all sorts of laws that violate their own ideological values, including laws regulating guns, affirmative action, the Voting Rights Act, campaign finance and so on.

On the other hand, following their political and ideological values, they will exercise “judicial restraint” when it comes to upholding laws that they like, for example, laws that restrict the voting rights of minorities, that gerrymander political districts, that restrict the reproductive rights of women, that limit the rights of criminal defendants, that restrict the rights of gays and lesbians, and so on.

Now, for the first time in living memory, there will be five justices on the court who embrace this highly results-oriented, often unprincipled, and profoundly politically conservative approach. This takeover of the highest court in our nation will in all likelihood turn it into an entity governed by partisan political interests rather than neutral principles.

But Professor Stone is a nonoriginalist.  I do not understand how his criticism is anything other than saying that Justice Kavanaugh will reach decisions that Professor Stone disagrees with on the outcome.  Nonoriginalist professors and commentators such as Professor Stone have for decades celebrated Justices who decided according to their (liberal) ideas of the best outcome.  Now that there is the prospect of the Court's majority deciding according to its (conservative) ideas of the best outcome, Professor Stone is upset.  But the current Court exists in the world that he, and his like-minded commentators and the Justices they celebrated, created -- a Court where the Justices decide according to the outcomes they prefer.  Professor Stone's complaint reduces to the objection that the outcomes Justice Kavanaugh prefers won't be the outcomes that Professor Stone prefers.  This is not a compelling criticism.  The solution to ideological judging is judging tied to an objective standard apart from the judge's outcome preferences.  But liberals such as Professor Stone have made careers out of disparaging objective standards such as originalism.  (To be clear, I have nothing against Professor Stone in particular, and I thought his contribution to the symposium was the most substantive and forceful on the liberal side; but he is an appropriate representative).

A more interesting question (to me) is whether conservatives should hope for an originalist Justice Kavanaugh or an ideological Justice Kavanaugh.  One could argue that, in a world in which liberal Justices and liberal commentators call for adjudication based on preferred outcomes, conservative Justices should embrace adjudication based on preferred outcomes once they gain the majority.  Otherwise the playing field is permanently tilted.  One could further argue that only the prospect of a conservative Court deciding according to conservative values could lead liberal commentators, and the legal culture as a whole, to embrace objective principles such as originalism.  On the other hand, one might prefer to see Justice Kavanaugh and the Court's majority to lead by example, by following originalism wherever it may point, even to liberal results.