OPINION: Brett Kavanaugh, Conservative or Constitutionalist?

How his appointment to the Supreme Court could make a difference, according to BU School of Law expert Gary Lawson

Photo by AP Photo/Alex Brandon

Over the next few months, during the confirmation process for Judge Brett Kavanaugh’s nomination to the Supreme Court, you are going to hear a lot of stories, on all sides, about how “he voted in favor of these people” or “he ruled against this party.” Tune all of that out. It is worthless. To evaluate a judicial decision, you need to know, at a minimum, (1) the applicable law, (2) the facts based on admissible evidence that formed the record in the case, and (3) the specific arguments advanced by the lawyers. Knowing which party won or lost a case is meaningless without that context. To the extent that news outlets talk about more abstract matters of judicial philosophy, they are likely to focus on front-burner issues, such as abortion, gay marriage, and religion in the public square. But such cases are a tiny fraction of the Supreme Court’s workload (and influence). There are broader currents in the law that potentially affect far more cases than do the headline-grabbing issues that dominate political discourse. Here are some of them that might fly under the radar in the coming weeks.

1. Music to a constitutionalist’s ears?

Among jurists on the right, the big divide concerns the methodology that courts should use to decide constitutional cases. On the one hand, legal conservatives favor a minimalist, or restrained, role for the undemocratic judiciary, often through granting considerable judicial deference to legislative or executive judgments. On the other hand, constitutionalists focus on correctly ascertaining the objective original meaning of the Constitution’s text, which sometimes will and sometimes will not lead to judicial restraint, depending upon what the Constitution’s original meaning prescribes in each case. Almost no one adheres purely to one camp or the other, although Justices Clarence Thomas and Neil Gorsuch are mainly constitutionalists, while Chief Justice John Roberts and Justice Samuel Alito tend to lean conservative on this scale. Justice Anthony Kennedy, to the extent that he had an identifiable methodology, was more often than not in the conservative camp.

Judge Kavanaugh, I predict, will align predominantly, but not consistently with the constitutionalist wing on the Court — a mixed conclusion that matches the mixed evidence. In a dissenting opinion on the court of appeals in 2008, which was eventually vindicated in the Supreme Court, Judge Kavanaugh wrote that analysis must “begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution.” Music to a constitutionalist’s ears. On the other hand, when his appeals court heard a constitutional challenge to Obamacare, Judge Kavanaugh during the oral argument famously said, “We’re courts of judicial restraint. It’s a delicate act to declare an act of Congress unconstitutional” — and then concluded that the relevant statutes simply did not give his court any power to decide the case before it. A legal conservative symphony. Why might this clash of orientations matter? Here are some specific ways in which a conservative vs. constitutionalist alignment could make a big difference.

2. Gundy v. United States will tell you a lot about his general approach

Many laws enacted by Congress are vague, to the point of being almost meaningless. Executive agencies and courts then fill in the laws with regulations and adjudicated cases to give them actual effect, which in practice allows the agencies and courts to determine the content of those laws with only minimal legislative direction. The Constitution has long been understood to forbid Congress from delegating its legislative power to other actors, but the Supreme Court, with full support from both the liberal and conservative wings, has not enforced this principle since 1936. Judicial conservatives strongly resist applying this “nondelegation doctrine” because it involves an activist role for courts in policing legislative choices; it is very hard to articulate precisely when laws are too vague, so applying this doctrine requires courts to second-guess legislatures about how clearly laws need to be written.

Justice Antonin Scalia exemplified this view almost 30 years ago in Mistretta v. United States: “while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by courts.” Justice Harry Blackmun expressed widespread liberal doubts about the nondelegation doctrine while writing for the full Court in Mistretta: “our jurisprudence [on nondelegation] has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Constitutionalists, by contrast, consider the nondelegation principle one of the most basic, obvious, and unjustly neglected of all constitutional principles, and Justices Thomas and Gorsuch have expressed interest in reviving this doctrine.

If Judge Kavanaugh is more a constitutionalist than a conservative, that would make a bloc of three. Three is fewer than five, but if a few other justices can be swung at some margins, the results could remake the structure of modern government. That is not an entirely fanciful prospect: The Supreme Court has agreed to hear a case next year (Gundy v. United States) involving the nondelegation doctrine, and because four justices must vote to hear a case, at least two members of the Court other than Justices Thomas and Gorsuch must think that the issue is at least worthy of consideration. As a result of delegation of legislative power, administrative officials — and ultimately, through the control and direction of administrative officials, the president — today exercise, by any measure, far more actual power over people’s lives, fortunes, and sacred honors (as the Founders would say) than does Congress. An even modest revival of the nondelegation doctrine could significantly change that balance, which would make congressional elections more important and presidential elections less important than they are now. If Judge Kavanaugh is confirmed, pay very close attention to what he does and says next year in Gundy v. United States. It will tell you a lot about his general approach to judging.

3. Good news for criminal defendants and bad news for prosecutors?

Many of the most commonly litigated constitutional provisions deal with the procedures in criminal trials. More than 10 million arrests are made each year in the United States, so the rules for criminal procedure potentially impact literally millions of people. Some of those criminal rules are the subject of major controversies that a new justice could help resolve. For example, the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Suppose that the government in a drug trial uses a laboratory report analyzing a substance that was seized from the defendant. Does the lab analyst who wrote the report have to be “confronted” — meaning cross-examined under oath? The question is hugely important for the administration of criminal justice and the rights of criminal defendants, especially in a world in which crime labs do not always resemble those in CSI and sometimes get caught fabricating evidence on a massive scale.

The last time there was a major case on this question, in 2012, the Supreme Court split 4–1–4, and it was not the kind of left-right split that one might expect. For decades, the Court allowed the government to convict people on the basis of statements that were never exposed to in-court confrontation as long as the Court deemed the statements “reliable.” Then in 2004, an opinion by Justice Scalia invoked the original 1791 meaning of the Sixth Amendment to make the government produce for cross-examination all of the people who make statements that they expect to be used in court against criminal defendants. This was quite possibly the most consequential case in this millennium about the administration of criminal justice.

In recent years, a perhaps surprising coalition of four justices — Scalia, Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor — have mostly held to that 2004 opinion. Four other justices — Roberts, Alito, Stephen Breyer, and Kennedy — have openly called for a return to the old “let the unconfronted evidence come in as long as we think it is reliable” approach, because requiring the government to produce all of these witnesses makes prosecutions more costly and possibly less accurate (since it might push the government to use less reliable evidence instead of lab reports). Justice Thomas, idiosyncratically even among constitutionalists, agrees with Justice Scalia’s approach in principle, but in practice has a much narrower view of the original meaning of the Sixth Amendment that sometimes aligns him — as it did in the case in 2012 — with those seeking to let the government use unconfronted statements in criminal trials.

If both Justice Gorsuch and Judge Kavanaugh adopt Justice Scalia’s reading of the Sixth Amendment, as one would expect from original-meaning constitutionalists who will not be swayed by arguments about a minimalist judicial role or what would be good or bad policy, it will create a solid majority in favor of that view, so that Justice Thomas will no longer be the swing vote. That would be good news for criminal defendants and bad news for prosecutors. If Judge Kavanaugh instead leans conservative and takes Justice Kennedy’s position in this melee, the split may continue.

4. A substantial rollback in executive administrative power?

The methodology for deciding cases drives decisions in statutory as well as constitutional cases. A huge portion of the Supreme Court’s workload involves the interpretation of federal statutes rather than interpretation of the federal Constitution. There are several ongoing disputes on the Court about how to decide those numerous statutory cases, for which the appointment of Judge Kavanaugh could be crucial. One concerns the extent to which courts interpreting statutes should rely on legislative history — the reports and debates in Congress that led up to the passage of laws — in addition to (and sometimes rather than) the actual texts of the laws that Congress enacts. Three justices — Thomas, Alito, and Gorsuch — flatly said last year that courts should not look at legislative history, and Justice Kagan is often skeptical as well of the value of such extratextual resources. Judge Kavanaugh, in a 2016 article in the Harvard Law Review, strongly echoed these doubts about the use of legislative history in statutory interpretation, so it is a fair bet that he will join this textualist bloc, with potentially sweeping effects on a very broad range of cases across all subjects.

A second dispute, which has hugely important implications for how power is distributed among administrative agencies, Congress, and the courts, concerns whether courts should give significant, and often decisive, weight to the views of administrative agencies about the meaning of laws that those agencies enforce. For the past three decades, the answer has largely been “yes.” If you hear a reference to the “Chevron doctrine,” that is what it is about. A coalition has possibly been building on the Court to change this doctrine of judicial deference to executive agencies. Justices Thomas and Gorsuch have openly criticized the idea that courts should defer to executive views on legal meaning, Justice Breyer has been a vigorous critic of the doctrine in the past, and Justices Roberts and Kennedy on occasion have suggested that the doctrine be significantly limited.

Judge Kavanaugh, in his 2016 Harvard Law Review article, described the Chevron doctrine as “[i]n many ways…nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” although he said that the doctrine might make sense “in certain circumstances” when statutory cases really involve policy (which he does not think is the business of the courts) rather than law. Even if he does not align with Justices Thomas and Gorsuch, a substantial rollback of this Chevron deference doctrine is quite possible, with a resultant substantial rollback in executive administrative power.

5. Potential impact on abortion, gay marriage, and other front-burner issues

This brings us to abortion, gay marriage, religion in the public square, and other front-burner issues that are widely thought to hang in the balance because Justice Kennedy was the swing vote. Whatever their personal moral or social views may be, anyone who is either a legal conservative or an original-meaning constitutionalist probably thinks, as a legal matter, that Roe v. Wade (abortion), Obergefell v. Hodges (gay marriage), and Lemon v. Kurtzman (public religious expression) were all mistaken interpretations of the actual meaning of the Constitution. (Keep in mind that the legal issue in all of these cases concerns the extent to which the federal Constitution dictates answers in such cases, not which answers would be morally or socially best.) That does not mean, however, that any or all of those decisions are likely to be overruled if Judge Kavanaugh is confirmed. Indeed, Judge Kavanaugh might well decide — as have legal conservative Supreme Court appointees for decades — that concern for precedent requires retaining those decisions even if they are mistaken interpretations.

I said earlier that Judge Kavanaugh has written that constitutional analysis must “begin with the constitutional text and the original understanding.” That does not mean that it must end there; precedent is always a force, and although one cannot precisely gauge its force with anyone on the Supreme Court in advance, it is telling that Judge Kavanaugh is one of the authors of the leading scholarly treatise on the law of precedent. Precedent is obviously something that he takes very seriously. And entirely apart from Judge Kavanaugh’s take on precedent, there might well be existing members of the Court who, while agreeing that those front-burner cases were mistaken when they were decided, will think it institutionally inappropriate for the Court to undo settled decisions on such sensitive matters, even if those settlements have little basis in the actual meaning of the Constitution. In other words, meet your potential new swing vote: Chief Justice John Roberts.

Gary Lawson, the School of Law Philip S. Beck Professor of Law, can be reached at glawson@bu.edu. He is a founding member, and on the board of directors, of the Federalist Society for Law and Public Policy Studies and is also on the editorial board of the Heritage Guide to the Constitution, a reference tool for legal scholars. He clerked for the late Supreme Court Justice Antonin Scalia.

Originally published at www.bu.edu.

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