What does President Donald Trump’s nomination of Judge Brett Kavanaugh spell for the future of American constitutional and democratic life? Like Trump’s first pick for the Supreme Court, Justice Neil Gorsuch, Judge Brett Kavanaugh is virtually certain to push the Court further to the right. It is entirely reasonable to expect that in the next few years Roe v. Wade will be overturned, or at least neutered, as the Court’s right wing majority approves increasingly draconian restrictions on a woman’s right to choose an abortion. But the consequences of Kavanaugh’s appointment will reach much further. Kavanaugh’s writings and judicial record make clear his hostility to a range of economic and environmental regulations, to unions, and to workplace safety rules. While a judge on the D.C. Circuit, he voted to uphold a South Carolina voter ID law that civil rights groups complained would suppress minority voting. And his writings suggest that he is skeptical either that the Constitution permits a sitting President to be indicted, or to even be criminally investigated.
But Kavanaugh’s nomination presents a question that is much deeper than whether the Court is destined to tack to the right on particular policy questions. At stake is what role the Court plays in our democracy — and, in particular, how frequently, and on what grounds, the Court’s rulings override and frustrate majority rule. For Brett Kavanaugh isn’t just a conservative. Like Justices Thomas and Gorsuch, Kavanaugh is a constitutional originalist.
Defining the Terms of Discussion: Originalism and Constitutional Democracy
Originalism. That term is used, and misused, often in the public debate. What does it mean to say that Brett Kavanaugh is an “originalist?” It means that Kavanaugh believes — or that he would at least like us to believe that he believes — that the meaning of the Constitution was fixed at the time of its adoption, and that judges are bound to adhere to that original meaning. Originalism is often contrasted with “living constitutionalism,” or the view that the meaning of the Constitution can evolve over time, and that judges are bound to interpret the text in a way that preserves the document’s deeper purposes and applies them to modern conditions.
A large measure of originalism’s appeal lies in its seeming simplicity. The meaning of the text, originalists maintain, was fixed at the time of the Constitution’s adoption. Unlike living constitutionalism, in which the meaning of the text may shift over time, originalism promises to align our democracy with a fixed star.
Another purported selling point for originalism is that it’s democratic. Judges who are committed to upholding the Constitution’s original meaning, proponents of this theory contend, are restrained from imposing their own political preferences on our democracy. In contrast, judges who believe in a “living Constitution” are practically invited to shape the Constitution’s meaning according to their own political whim.
Simple, stable, democratic, politically neutral. That is how originalism is sold. But that’s not at all how it actually works. In the real world, originalism doesn’t operate as a simple, stable, or even neutral, framework for understanding the meaning of the Constitution. And originalism does little to restrain the discretion of judges. Quite the opposite. Often originalism functions as a sort of rhetorical smoke-screen. Originalist judges pledge allegiance to the Constitution’s original meaning, while actually imposing their partisan — and almost uniformly conservative — political preferences.
I’ll say more about originalism’s close ties with political conservatism in a moment. But first, a few words about its infirmities both as a theory of how to understand the meaning of the Constitution, and as a tool for restraining judicial discretion.
The United States is a constitutional democracy. And for most Americans, those two words — “constitution” and “democracy” — seem to go together like (to use an old reference that an originalist might nonetheless find unbecomingly contemporary) Bogey and Bacall.
But that’s a naive view. Our Constitution and our democracy are indeed mutually supporting. Each gives structure and legitimacy to the other. But they are also in considerable tension.
This isn’t some academic point — it’s one with very real consequences. Many times every year, federal judges declare that some law passed by a legislative majority, or some action of a democratically-elected official like the President or the governor of a state, is inconsistent with the Constitution and is therefore invalid.
Courts striking down legislation, or thwarting the actions of democratically-elected officials, is something that happens so regularly in America that we take it for granted. But we should remember that what the courts are doing in these cases is extraordinary in a democracy. A judge is displacing the decision of a current majority in favor of some inconsistent rule put in place by people long dead. A judge is, in short, allowing the dead to govern the living.
That isn’t democratic. It’s necrocratic. And this “dead hand” problem is endemic to constitutionalism generally. All constitutions that are backed by judicial review sometimes privilege decisions made in the past, decisions that living voters never approved, over decisions made by democratic majorities today.
The question for how we govern ourselves isn’t whether this happens in a constitutional democracy. It does, and to some extent, it must. The question is how often, and on what basis. Originalist judges have shown little reluctance to override the decisions of current democratic majorities; they do so at least as often as judges who believe in a “living Constitution.” Are they doing so based on a reliable understanding of what the fixed, original meaning of the Constitution? Or are they acting out their political beliefs? Those are the vital questions.
Part of the answer may be found by asking whether originalism succeeds, on its own terms, as a theory of constitutional interpretation. The short answer: it does not. Originalism is easy to describe in the abstract. But it is actually very difficult to do either well or honestly in practice.
How Originalism “Works” in Judicial Decision-Making
A good example of how originalism falls short is Justice Antonin Scalia’s opinion in District of Columbia v. Heller, the landmark 2007 decision. The Supreme Court, divided 5-4 along partisan lines, found (for the first time more than 200 years after the Constitution and Bill of Rights were adopted) that the Second Amendment guaranteed an individual right to bear arms, rather than simply guaranteeing the right of states to maintain “well regulated militia” (as the preface to the Second Amendment suggests), or a narrower individual right to bear arms only in connection with militia service. On the basis of this broad interpretation of the right granted by the Second Amendment, the five-justice majority struck down a DC ordinance banning handgun ownership.
In his opinion for the majority, Justice Scalia inquires into the original understanding of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Consider first what Justice Scalia (tellingly) labels the Second Amendment’s “prefatory clause” — the piece about a “well regulated Militia, being necessary to the security of a free State …” Does this language limit the scope of the right found in what Justice Scalia (also tellingly) labels the “operative clause” — i.e., the part about “the right of the people to keep and bear Arms” — or is it best understood as some sort of constitutional throat-clearing?
Justice Scalia, rejecting the arguments of professional linguists, held that the prefatory clause simply provided a broad purpose with which the right must be consistent, but did not itself limit the right. Justice Stevens, in his dissent for the Court’s four liberal justices, disagreed. He argued that the Court should have read the two clauses together, and that under ordinary interpretive principles the first clause must be understood to limit the scope of the right granted by the Second Amendment read as a whole. Both Justice Scalia and Justice Stevens mustered substantial textual and historical arguments and citations in favor of their positions.
Justice Scalia next proceeded to consider the original meaning of what he called the operative clause; in particular, the words “keep and bear arms.” Is this a phrase that, at the time of the adoption of the Bill of Rights, referred specifically to the military use of firearms? Or did it refer to a personal right unconnected to military service?
On this question, Justice Scalia consults founding-era dictionaries and treatises, as well as English and colonial laws. Reading these, he concludes that meaning of “keep and bear arms” was not restricted to military uses, but sets forth a broad individual right to bear arms. On the other hand, Justice Stevens, consulting similar sources, including an 18th-century thesaurus and a different edition of one of the same old dictionaries on which Justice Scalia relied, reached the exact opposite conclusion. The original understanding of “keep and bear arms,” Justice Stevens concluded, focused on military service.
One may tilt toward Justice Scalia, or Justice Stevens. Most fair-minded readers, I believe, find both the majority and the dissent entirely plausible — both make some nice points and both contain a few serious vulnerabilities. Crucially, neither the majority opinion nor the dissent are commanding. And this is a problem. A five-member majority of the Supreme Court announced in Heller a constitutional rule that invalidates a wide array of gun control laws that have been or could otherwise be democratically enacted. And those five people did so based not on some powerful, clear constitutional command, but rather on a so-called original meaning that is, at best, hotly contested.
So originalism promises certainty, but in most cases that reach the courts it delivers, at best, “plausibility.” That should not be enough for judges to set aside the decisions of contemporary democratic majorities. For even if one accepts that we should defer to the preferences of the Founders — and to be clear, I don’t accept that uncritically — our democracy belongs to the living. We should at least not substitute the Founders’ preferences for our own unless the Constitution is speaking clearly. It’s an old, terse document, written by people we’ve never met, according to a process that was poorly documented, and in an antique language of vague generalities that rarely gives clear answers when applied to modern problems. We should heed the Constitution’s commands. Not its faint suggestions.
Which brings me back to the connection between judicial originalism and political conservatism. Originalists claim that their interpretive method is politically neutral. However, on the federal bench, originalism is a right-wing sport. That is no accident. Originalism pins us to the distant past. A past that predates both the tremendous growth in U.S. population and in the scope and power of the federal government starting with the New Deal and continuing through the Second World War and the Great Society programs. Originalism valorizes a distant past that can be weaponized to halt and even reverse the progressive transformation of society accomplished during that long era of liberal dominance.
Some right wing judges are hiding behind originalism, using it as a stalking horse for the very thing that originalism promises to prevent — partisan judging. These judges exploit originalism’s usefulness in imposing conservative policy preferences, but have no deep dedication to the method itself. You can see this in the selectivity with which some judges will either use or ignore originalism, depending on which way it points in a particular case. As Eric Segall and others have noted, Justice Scalia, in particular, was known for this sort of “opportunistic originalism.” For these judges, they have the choice of either picking up originalism when it suits their favored outcome and discarding it in other important cases, or they may very well stick with originalism across cases as they know the framework will in general and on average provide the policy results they have come to believe are just.
But other originalist judges, the ones operating in good faith, are perhaps no less prone to imposing their partisan preferences in the name of the Constitution. These judges presumably tend to suffer, as all of us do, from a version of the confirmation bias that afflicts decision-making. Without systematic mechanisms in place to overcome such bias, they will often see certainty in uncertain arguments for original meaning when those arguments reinforce policy outcomes they like. An originalist judge who unconsciously aligns what the Constitution means with what he wants it to mean is behaving in a way that is altogether human. But it’s no way to run a constitutional democracy.
A Way Forward?
So what to do about Brett Kavanaugh, the conservative originalist? In the end, and barring some change in the current political situation, Kavanaugh probably gets confirmed. But this is where I hope that Americans are ready for some new thinking. The problem isn’t just the man, or his politics, or his interpretive ideology. The problem is, more deeply and more fundamentally, that our system has slid too far away from democracy, and too far down a road that leads to the rule of judges. The answer, I’d submit, is not to demand the appointment of fewer originalists, and more living constitutionalists, to the federal bench. Viewed from a certain altitude, originalism and living constitutionalism aren’t all that different. They are both ways of interpreting the Constitution that tend to expand judicial power at the expense of democracy.
The answer is to shrink the power of the federal courts over our lives, including the power of the Supreme Court. But how to do that given the systems we have inherited and the norms we have come to accept?
One way to do that would be to end life tenure for judges – in a system where judges don’t serve for 40 years, politicians have less incentive to try to stock the bench with partisan ideologues. With Congress in the hands of bold lawmakers, that could perhaps be done without amending the Constitution. This may be too innovative by half but Article III of the Constitution only says federal judges “shall hold their Offices during good Behavior.” As Stuart Taylor noted, the first 10 justices served an average of under eight years. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68. Given life spans in the late 1700s, the Founders probably didn’t foresee the prospect of federal judges ruling over multiple generations. Couldn’t Congress simply pass a law defining “good Behavior” as service for a maximum of 12 years, or until the age of 68, whichever comes first? And then Congress could strip the federal courts of power to review that law using the Constitution’s Exceptions Clause (the Exceptions Clause (article III, § 2, cl 2) allows Congress to make exceptions to the Supreme Court’s appellate jurisdiction. Article III also gives Congress power to “ordain and establish” inferior federal courts; the power to establish the lower federal courts includes the power to limit their jurisdiction. Or perhaps the Senate could impose a rule that it will only confirm judges who commit to serving for a limited time, with impeachment of judges as a device for enforcing the commitment.
If those sound extreme, well, maybe they are. But maybe they aren’t, compared to another strategy. It’s worth remembering that there’s nothing in the Constitution that says that courts have the power to strike down legislation. Or that, if they do, that Congress cannot simply override their decisions by an ordinary majority.
So, if we are worried that judicial review is out of control, and that democracy is being subverted by the rule of judges, we may benefit by looking north. By which I mean, to Canada.
In the Canadian constitution is something called the “Notwithstanding Clause.” That clause allows the legislature to declare that a law shall operate “notwithstanding” a judgment of the Supreme Court of Canada. That is, the clause allows national or provincial legislatures to override a court’s decision to strike down a law. The Notwithstanding Clause has seldom been used (but Canada has other mechanisms in place like mandatory retirement ages, which makes it less necessary). Regardless, the presence of the clause in the Canadian system resets the balance of constitutionalism in a way that favors democracy.
We could have the equivalent of a Notwithstanding Clause in the U.S. And again, we wouldn’t have to amend the U.S. Constitution to get it. How could that be done? Congress could pass a law stating that Congress may override any Supreme Court decision (other than the negligibly small area of the Court’s original jurisdiction) by the ordinary legislative process.
This undoubtedly sounds like a recipe for conflict. So be it. Americans — and liberals in particular — need to get over their false belief that the Constitution is sacrosanct. The Constitution is a human creation; worshiping it is a form of idolatry. Americans need to understand that too much constitutionalism, like too much democracy, can be dangerous to self-governance and even destroy a society. And most of all, they need to rediscover a fact that liberals in the New Deal era understood implicitly — that the surest and most durable route to progressive change is through the ballot box, and not the courthouse doors.
Which brings me, finally, back to Brett Kavanaugh. The confirmation battle to come is important, but not as important as what should come next. The best future for America is one in which we have curbed the power of federal courts, and reestablished the primacy of democracy. In such a future, Supreme Court confirmation hearings may even generally pass mostly unnoticed by the public. As they should, in a working constitutional democracy.
Photo: Judge Brett Kavanaugh listens to Sen. Rob Portman (R-OH) talk about Kavanaugh’s qualifications before a meeting in the Russell Senate Office Building on Capitol Hill July 11, 2018 (Chip Somodevilla/Getty Images)