Magazine | August 27, 2018, Issue

What Kind of Originalist?

(Roman Genn)
The conservative legal debates that a Justice Kavanaugh might influence

If the Senate confirms him to the Supreme Court this fall, Judge Brett Kavanaugh is universally expected to join the four justices in the Court’s conservative bloc. Because his replacement of Justice Anthony Kennedy would almost certainly make the Court significantly more conservative, the debate over Kavanaugh’s nomination has been and will continue to be conducted at a decibel level that drowns out nuance.

His supporters describe him as a well-qualified mainstream conservative, his opponents as a hard-right ideologue. The dispute, for the most part, turns not on the content of his views but on their characterization. We can infer that he is skeptical about the constitutional grounding of Roe v. Wade because most informed legal conservatives are, and because he has praised the late chief justice William Rehnquist for his judicial philosophy while mentioning Rehnquist’s opposition to Roe as an instantiation of it. Whether someone considers that skepticism a qualification or disqualification tells us more about the observer than about the observed.

There are, however, varieties of judicial conservatism, and Kavanaugh could do a lot to influence the direction of conservative legal thought by taking positions in several overlapping debates.

Mostly because of Roe, the debate that is currently getting the most attention concerns the status of judicial precedents. Among the sitting justices, Clarence Thomas has staked out the strongest view for minimizing their status in constitutional cases. If a precedent contradicts the proper reading of the Constitution — which for him means the prevailing understanding of a constitutional provision at the time it was ratified — he would have the Court overrule that precedent. A majority of the Court that took that view would find a lot of precedents worth overturning, the better to align constitutional law with the Constitution.

But other considerations — especially the stability of the law, and perhaps respect for the Court — militate in favor of respecting precedent, even if that precedent was erroneous when established. The late justice Antonin Scalia believed in respecting precedent as a pragmatic exception to a jurisprudence of original meaning. Allowing such exceptions comes, however, at the price of sacrificing part of originalism’s appeal. One of the advantages of the method is that, compared with other approaches to interpreting legal texts, it constrains the ability of judges to decide cases on extralegal bases such as their own views about public policy. To the extent they can choose which precedents to follow and must do so on some basis other than the original understanding of the texts, that constraint is relaxed.

If a justice believes a precedent needs correction, how quickly and thoroughly should he pursue it? That brings us to a second distinction among legal conservatives. Chief Justice John Roberts seems to prefer narrow rulings with eight or nine justices in the majority over broad rulings with only five. In part that is because getting conservative and liberal justices to agree on the disposition of a case encourages respect for the Court and perhaps even for the law as something distinct from partisan politics. Narrow rulings with wide support may also serve the goal of legal stability. They may, finally, help tether courts to the judicial function of deciding cases rather than setting policies. But the Supreme Court can also reach a consensus by ducking hard but crucial issues. If it ducks too often it could acquire a reputation for doing so, undermining the goal of earning respect that motivated it in the first place.

Another intra-conservative division pits “judicial restraint” against “judicial engagement.” For decades, conservative legal thinkers and allied politicians have emphasized the need for judges to defer to the elected branches of government. While the advocates of “restraint” believe that courts must sometimes set aside legislation to resolve a case properly, they also think it should be done sparingly. More recently, the advocates of “engagement,” who tend to be libertarians (or conservatives with a strong libertarian streak), have argued that both the posture and the rhetoric of restraint discounts the judicial duty to protect constitutional rights.

Judicial restraint still dominates conservative rhetoric. Consider President Trump’s nominees to the Supreme Court: Both Justice Neil Gorsuch’s and Judge Kavanaugh’s opinions frequently warn against the judicial usurpation of a legislative role. The engagers’ biggest coup has been to convert columnist George Will, who has turned more libertarian, to their side. One of Trump’s appellate-court appointments, Don Willett, is a prominent engager; he is also on the president’s list of possible Supreme Court nominees.

These camps might be able to reach a limited accord on a set of issues related to the separation of powers. In the 1980s and 1990s, legal conservatives tended to believe that judges should defer to administrative agencies, letting their regulations stand as valid interpretations of statutes when those interpretations were plausible. Conserva­tives at that time were chiefly concerned about limiting the misuse of judicial power. In recent years, however, conservatives have become more alarmed by the agencies’ combination of executive, legislative, and judicial roles. Justice Scalia began to rethink the question of deference to agencies in his last terms on the Court.

The engagers would like the courts to serve as a stronger check on the agencies, and in many cases even the restrainers view reining them in as itself a form of deference (to legislatures that didn’t intend to hand the agencies a blank check). In other cases, though, the two sides would still diverge. The restrainers would give Congress more room to hand agencies discretion. The engagers would be more likely to deny that Congress may delegate legislative powers to them.

The conservatives on the Supreme Court may also disagree on cases involving the scope of executive power. Since the Reagan administration, conservatives have increasingly emphasized that the Constitution vests all executive power in the president and therefore immunizes his management of his branch from legislative regulation. The Robert Mueller investigation may force the conservative justices to decide how far to take this concept of the “unitary executive.” President Trump has already complained that the investigation is “unconstitutional,” and whether he has the power to shut it down unilaterally is a contested question.

The conservative justices have already shown themselves to be split on how much deference they should show states in economic matters. The Constitution authorizes Congress to regulate commerce among the states. Since at least the 1870s, the Supreme Court has inferred from that grant of power that it should act to limit states’ regulation of that commerce. But since this “negative” or “dormant” commerce clause is a doctrine rather than an explicit part of the Consti­tution, Justices Gorsuch and Thomas are hostile to it. Many conservatives share that hostility because it fits with their general preference for state governments over the federal government. But other conservatives note that protecting national commerce from the depredations of state governments was one of the central reasons the Founders wrote the Constitution in the first place and that courts act on inferences from the constitutional text all the time.

There will be enough time during Kavanaugh’s Senate hearings for some of these questions to be broached. But while the judge may give some clues about his thinking on them, he will surely follow the modern practice of avoiding direct answers. To have a strong sense of where he will pull judicial conservatism, we will have to wait to see him in action on the Supreme Court.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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