Is Judge Kavanaugh a True Originalist?

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Is Judge Kavanaugh a True Originalist?

The one great fail­ure of those who wrote United States Con­sti­tu­tion was their fail­ure to prop­erly restrain the Supreme Court. They did not fore­see that the high­est court in the United States would aban­don the Con­sti­tu­tion as the ulti­mate basis for all of the rul­ings they issue. The framers of the Con­sti­tu­tion did not envi­sion that the mem­bers of that body of jus­tices would sub­sti­tute their own polit­i­cal opin­ions and biases, which are recorded in Supreme Court Prece­dent, for the actual text of the Con­sti­tu­tion and the plain mean­ing of that doc­u­ment as under­stood at the time of ratification.

Dur­ing his con­fir­ma­tion tes­ti­mony Judge Kavanaugh demon­strated that he would most likely be a Supreme Court Jus­tice that would rely more on the biased and flawed prece­dent than one of the great orig­i­nal­ists like Scalia. Judge Kavanaugh dis­cussed prece­dent fre­quently and in great detail dur­ing the con­fir­ma­tion hear­ings. Here is what I con­sider the most telling quote about the topic from the hear­ings, as quoted in this Bre­it­bart arti­cle:

The role of prece­dent is to ensure sta­bil­ity in the law, which is crit­i­cally important…It’s also to ensure pre­dictabil­ity of the law. Peo­ple who order their affairs around judi­cial deci­sions, need to know that the law is pre­dictable. Whether you’re an indi­vid­ual or busi­ness or worker, you need to have pre­dictabil­ity, Peo­ple rely on the deci­sions of the courts, so reliance inter­ests are crit­i­cally impor­tant to con­sider … so that peo­ple can rely on the decisions.

Prece­dent also rein­forces the impar­tial­ity and inde­pen­dence of the judi­ciary. The peo­ple need to know in this coun­try that the judges are inde­pen­dent, and we’re not mak­ing deci­sions based on pol­icy views. Part of that is to under­stand we’re fol­low­ing a sys­tem of prece­dent … the court, every time some­one [new] gets on [the Court], it’s not just bounc­ing around to do what think is best. It’s what’s the prece­dent of the Supreme Court is always part of the analy­sis, an impor­tant part.

For 12 years, I’ve been apply­ing prece­dent of the Supreme Court and of my court. Every day for 12 years, I haven’t been get­ting up say­ing, “How can I rewrite the law?” I’ve been get­ting up for 12 years every day, say­ing, “Okay, how can I apply this Fourth Amend­ment prece­dent to this fact pat­tern that comes before me?” So prece­dent is the foun­da­tion of our sys­tem. It’s part of the sta­bil­ity. It’s ensur­ing pre­dictabil­ity. And it’s just foun­da­tional to the Con­sti­tu­tion, as Arti­cle III [of the Con­sti­tu­tion] and Fed­er­al­ist 78 made clear.

It is clear from this quote that Judge Kavanaugh believes that Supreme Court prece­dent is the bedrock of our con­sti­tu­tional repub­lic. Is he cor­rect about that? Let’s con­sult Fed­er­al­ist 78 which was writ­ten by Alexan­der Hamilton.

It is far more ratio­nal to sup­pose, that the courts were designed to be an inter­me­di­ate body between the peo­ple and the leg­is­la­ture, in order, among other things, to keep the lat­ter within the lim­its assigned to their author­ity. The inter­pre­ta­tion of the laws is the proper and pecu­liar province of the courts. A con­sti­tu­tion is, in fact, and must be regarded by the judges, as a fun­da­men­tal law. It there­fore belongs to them to ascer­tain its mean­ing, as well as the mean­ing of any par­tic­u­lar act pro­ceed­ing from the leg­isla­tive body. If there should hap­pen to be an irrec­on­cil­able vari­ance between the two, that which has the supe­rior oblig­a­tion and valid­ity ought, of course, to be pre­ferred; or, in other words, the Con­sti­tu­tion ought to be pre­ferred to the statute…

But in regard to the inter­fer­ing acts of a supe­rior and sub­or­di­nate author­ity, of an orig­i­nal and deriv­a­tive power, the nature and rea­son of the thing indi­cate the con­verse of that rule as proper to be fol­lowed. They teach us that the prior act of a supe­rior ought to be pre­ferred to the sub­se­quent act of an infe­rior and sub­or­di­nate author­ity; and that accord­ingly, when­ever a par­tic­u­lar statute con­tra­venes the Con­sti­tu­tion, it will be the duty of the judi­cial tri­bunals to adhere to the lat­ter and dis­re­gard the former.

From this quote it is obvi­ous that the Con­sti­tu­tion itself is the foun­da­tion of our legal sys­tem not the opin­ions offered by the Jus­tices when they over­turn a law. To be fair to Judge Kavanaugh prece­dent is men­tioned in that Fed­er­al­ist Paper. Here is the passage:

There is yet a fur­ther and a weight­ier rea­son for the per­ma­nency of the judi­cial offices, which is deducible from the nature of the qual­i­fi­ca­tions they require. It has been fre­quently remarked, with great pro­pri­ety, that a volu­mi­nous code of laws is one of the incon­ve­niences nec­es­sar­ily con­nected with the advan­tages of a free gov­ern­ment. To avoid an arbi­trary dis­cre­tion in the courts, it is indis­pens­able that they should be bound down by strict rules and prece­dents, which serve to define and point out their duty in every par­tic­u­lar case that comes before them; and it will read­ily be con­ceived from the vari­ety of con­tro­ver­sies which grow out of the folly and wicked­ness of mankind, that the records of those prece­dents must unavoid­ably swell to a very con­sid­er­able bulk, and must demand long and labo­ri­ous study to acquire a com­pe­tent knowl­edge of them.

Would Alexan­der Hamil­ton con­sider prece­dent that con­stantly dis­re­gards the actual text of the Con­sti­tu­tion and plain mean­ing as wor­thy bedrock? I do not believe he would. The Supreme Court has erred far too often when reach­ing deci­sions and prece­dents are noth­ing more than a volu­mi­nous record of these fail­ures. Also the prece­dents men­tioned by Hamil­ton were never meant to be granted the full force of law, as it is now. They were just a guide con­sist­ing of opinions

James Madi­son stated quite clearly what the true foun­da­tion of con­sti­tu­tional under­stand­ing is when he wrote this in a let­ter from James Madi­son to Thomas Ritchie

As a guide in expound­ing and apply­ing the pro­vi­sions of the Con­sti­tu­tion, the debates and inci­den­tal deci­sions of the Con­ven­tion can have no author­i­ta­tive char­ac­ter. How­ever desir­able it be that they should be pre­served as a grat­i­fi­ca­tion to the laud­able curios­ity felt by every peo­ple to trace the ori­gin and progress of their polit­i­cal Insti­tu­tions, & as a source per­haps of some lights on the Sci­ence of Govt. the legit­i­mate mean­ing of the Instru­ment must be derived from the text itself; or if a key is to be sought else­where, it must be not in the opin­ions or inten­tions of the Body which planned & pro­posed the Con­sti­tu­tion, but in the sense attached to it by the peo­ple in their respec­tive State Con­ven­tions where it recd. all the author­ity which it possesses.

Despite his poten­tial over reliance on prece­dent I believe Judge Kavanaugh will be an ade­quate Supreme Court Jus­tice. I believe he will be another Jus­tice in the mold of Jus­tice Roberts rather that a true orig­i­nal­ist giant such as Scalia, Gor­such, and Thomas. I believe he is infi­nitely bet­ter than any­one Hillary Clin­ton would have nom­i­nated and con­sid­er­ably bet­ter than Jus­tice Kennedy. Hope­fully Pres­i­dent Trump does bet­ter with his next pick,

The one great failure of those who wrote United States Constitution was their failure to properly restrain the Supreme Court.  They did not foresee that the highest court in the United States would abandon the Constitution as the ultimate basis for all of the rulings they issue.  The framers of the Constitution did not envision that the members of that body of justices would substitute their own political opinions and biases, which are recorded in Supreme Court Precedent, for the actual text of the Constitution and the plain meaning of that document as understood at the time of ratification.

During his confirmation testimony Judge Kavanaugh demonstrated that he would most likely be a Supreme Court Justice that would rely more on the biased and flawed precedent than one of the great originalists like Scalia. Judge Kavanaugh discussed precedent frequently and in great detail during the confirmation hearings.  Here is what I consider the most telling quote about the topic from the hearings, as quoted in this Breitbart article:

The role of precedent is to ensure stability in the law, which is critically important…It’s also to ensure predictability of the law. People who order their affairs around judicial decisions, need to know that the law is predictable.  Whether you’re an individual or business or worker, you need to have predictability, People rely on the decisions of the courts, so reliance interests are critically important to consider … so that people can rely on the decisions.

Precedent also reinforces the impartiality and independence of the judiciary. The people need to know in this country that the judges are independent, and we’re not making decisions based on policy views. Part of that is to understand we’re following a system of precedent … the court, every time someone [new] gets on [the Court], it’s not just bouncing around to do what think is best. It’s what’s the precedent of the Supreme Court is always part of the analysis, an important part.

For 12 years, I’ve been applying precedent of the Supreme Court and of my court. Every day for 12 years, I haven’t been getting up saying, “How can I rewrite the law?” I’ve been getting up for 12 years every day, saying, “Okay, how can I apply this Fourth Amendment precedent to this fact pattern that comes before me?” So precedent is the foundation of our system. It’s part of the stability. It’s ensuring predictability. And it’s just foundational to the Constitution, as Article III [of the Constitution] and Federalist 78 made clear.

It is clear from this quote that Judge Kavanaugh believes that Supreme Court precedent is the bedrock of our constitutional republic.  Is he correct about that?  Let’s consult Federalist 78 which was written by Alexander Hamilton.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute…

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

From this quote it is obvious that the Constitution itself is the foundation of our legal system not the opinions offered by the Justices when they overturn a law.  To be fair to Judge Kavanaugh precedent is mentioned in that Federalist Paper.  Here is the passage:

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.

Would Alexander Hamilton consider precedent that constantly disregards the actual text of the Constitution and plain meaning as worthy bedrock?  I do not believe he would.  The Supreme Court has erred far too often when reaching decisions and precedents are nothing more than a voluminous record of these failures.  Also the precedents mentioned by Hamilton were never meant to be granted the full force of law, as it is now.  They were just a guide consisting of opinions

James Madison stated quite clearly what the true foundation of constitutional understanding is when he wrote this in a letter from James Madison to Thomas Ritchie

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.

Despite his potential over reliance on precedent I believe Judge Kavanaugh will be an adequate Supreme Court Justice.  I believe he will be another Justice in the mold of Justice Roberts rather that a true originalist giant such as Scalia, Gorsuch, and Thomas.  I believe he is infinitely better than anyone Hillary Clinton would have nominated and considerably better than Justice Kennedy.  Hopefully President Trump does better with his next pick,