This article first appeared in the August print issue of NC Capitol Connection.
The nomination of Brett Kavanaugh to be the next Supreme Court justice was both smart and shrewd. Judge Kavanaugh is a brilliant, experienced, and widely-respected jurist who will be more conservative than Anthony Kennedy, the justice he will replace. His impeccable credentials virtually assure his confirmation, despite the Republicans’ razor-thin majority in the Senate. One Yale law professor called it President Trump’s “finest hour, his classiest move.”
Kavanaugh has written more than 200 opinions in his 12 years as judge on the U.S. Court of Appeals for the District of Columbia Circuit. They are carefully reasoned and well within mainstream current legal thought. He has a long track record of supporting free speech, religious freedom, and Second Amendment rights. He also is a strong proponent of the separation of powers and has worked to rein in the vast power of federal administrative agencies. He has written or joined opinions in at least 75 cases finding agency action to be unlawful.
Kavanaugh’s judicial opinions, speeches, and articles suggest that his approach to judging most closely resembles that of the late Justice Antonin Scalia, who championed originalism as the best approach to constitutional interpretation.
Originalists believe that the only authoritative meaning of the Constitution is the ratified meaning—the meaning that was approved by super-majority vote when the constitutional text was adopted. The originalist judge thus seeks to understand the meaning that an ordinary reader placed on the constitutional text at the time of its enactment (i.e., the public meaning that was approved when ratified).
For originalists, the meaning of the constitutional text was fixed at the time of its adoption and establishes the rule of law going forward. That meaning, of course, must be applied to a myriad of modern circumstances, but the meaning itself does not change. This approach is not radical or extreme; in fact, it’s the way judges typically construe the meaning of other legal texts such as contracts, wills, or property deeds.
Say you enter into a contract to buy a parcel of land for $100,000. The contract specifies that you will pay the seller $10,000 a year over 10 years. In year five, the value of the land suddenly increases tenfold. The seller takes you to court, claiming that you now owe him a total of $1,000,000 for the land. He asks the judge to interpret the contract’s purchase price according to the value of the land today, not what it meant five years earlier. The judge rightfully would reject the seller’s claim on the ground that the contract language means what the parties understood it to mean at the time the contract was signed, not what it should mean five years later.
Nonoriginalist judges—sometimes called “living constitutionalists”—seek to determine the meaning of Constitution for our time, not what it meant when adopted. They believe that judges have the power to change the meaning of constitutional language to reflect modern values and circumstances. Because there is no consensus on what meaning should replace the original meaning, these judges are free to impose on the rest of us their own personal values and political views under the guise of constitutional decision-making. In short, they can make up constitutional law as they go along.
The nonoriginalist approach transforms judges into policy-makers, and those policies almost always reflect the views of the political Left. Nonoriginalist judges have expanded federal powers to advance statist policies and devalued constitutional rights essential to individual liberty (e.g., free speech, religious freedom, right to arms). They have created rights that promote sexual autonomy, such as abortion and gay marriage, despite those rights not being mentioned in the constitutional text or deeply rooted in our nation’s history and tradition.
To be sure, originalism isn’t perfect. It does not completely eliminate judicial subjectivity, the original public meaning cannot reliably be ascertained in every case, and originalism has not always been applied consistently by the judges who espouse it. Still, originalism is better than nonoriginalism in determining the real meaning of the Constitution and constraining judicial mischief.
That’s why Judge Kavanaugh’s adherence to originalism is so important. During his confirmation hearing for appointment to the D.C. Circuit, he explained that “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.” At another venue, he highlighted former Chief Justice William Rehnquist’s opposition to the “free-wheeling judicial creation of unenumerated rights.”
Perhaps the greatest insight into Judge Kavanaugh’s judicial philosophy is found in a 2016 address he gave at the Antonin Scalia School of Law at George Mason University. Kavanaugh confessed that he considers Justice Scalia to be “a hero and a role model”—
What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound and worth repeating often. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures. Remember that the structure of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are at least as essential to protecting individual liberty as the individual rights guaranteed in that text. And remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. Simple but profound.
Kavanaugh’s appointment should give the Supreme Court greater legitimacy in its constitutional decision-making and help move policy-making back to the political branches where it belongs.
He will be a first-rate justice.
Gregory Wallace is a Professor of Law at Campbell University School of Law in Raleigh, North Carolina. The views expressed are his own.