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,