ISSUE BRIEF: Supreme Court Nominee Brett Kavanaugh: Will He Respect The Whole Constitution?
During his tenure on the D.C. Circuit, Judge Kavanaugh has taken a dim view of a number of critical constitutional protections, while stretching the rules of precedent to vastly expand others. Judge Kavanaugh therefore will have a heavy burden to meet when he testifies before the Senate Judiciary Committee, which will soon consider his nomination to the United States Supreme Court. He will have to demonstrate that he is willing to enforce the whole Constitution—both the Founding document and the Amendments that made our Constitution more protective of freedom, equality, and democracy—not just the parts that match his conservative political beliefs.
Our Constitution is, in its most vital respects, a progressive document. At a time when monarchies reigned in much of the world, our Constitution’s Framers created a democratic system based on the sovereignty of “We the People” and a system of checks and balances to better secure liberty and prevent any one branch from aggrandizing its power. The Framers created the Article III judiciary to vindicate individual rights and prevent abuse of power by the government, recognizing that “[t]here is no other body that can afford such a protection.” In the Bill of Rights, our Constitution requires that the federal government respect fundamental rights and ensure fair legal treatment for all persons, citizens and noncitizens alike.
However, our original Constitution was far from perfect; it sanctioned slavery and permitted massive violations of fundamental rights by state governments. But the Amendments ratified in the wake of the Civil War, often termed America’s Second Founding, eliminated these blights on our Constitution. The Thirteenth Amendment abolished slavery; the Fourteenth Amendment guaranteed birthright citizenship to all persons born or naturalized in the United States and wrote into the Constitution sweeping new guarantees that required state and local governments to respect the liberty, dignity, and equality of all persons; and the Fifteenth Amendment guaranteed the right to vote free from racial discrimination. All three of these Second Founding Amendments gave Congress broad enforcement power to make these new constitutional guarantees real. In the 20th century, a host of other Amendments broadened the right to vote and made our system of government more democratic. Each of these voting rights Amendments—like the Second Founding Amendments—explicitly gave enforcement power to Congress.
Both in his writings and his opinions, Judge Kavanaugh has exalted the Constitution’s structure over the Amendments that have been added to the Constitution over the course of more than two centuries. Kavanaugh has discounted the Constitution’s “majestic generalities” and celebrated the “nitty-gritty details of specific government structure” in the original Constitution over the broadly worded guarantees of individual rights added by the Bill of Rights, the Second Founding Amendments, and other amendments. For Kavanaugh, the Constitution’s structure is “where our liberty is really protected,” a view that ignores that many parts of our Constitution are designed to protect liberty by preventing the abuse of power by state governments in addition to federal structured protections. Not surprisingly, virtually all of Judge Kavanaugh’s opinions that discuss the Constitution’s text and history concern the Constitution’s structure, and even in those opinions, Judge Kavanaugh often gets the text and history wrong, taking a view of the Constitution’s structure that turns our foundational charter on its head. Kavanaugh’s jurisprudence would tip the scales of our systems of checks and balances decisively in favor of an all-powerful executive.
Where Judge Kavanaugh does not purport to rely on constitutional text and history, he looks to precedent, but he often interprets prior Supreme Court decisions to move the law sharply to the right. He has sought to vastly expand protections for some rights, while permitting the government to run roughshod over others. These results may please conservatives, but they are badly out of step with the Constitution’s text, history, and values. Indeed, even his conservative colleagues have chided him about his approach to precedent. As Judge Janice Rogers Brown pointedly reminded Judge Kavanaugh, “[s]tare decisis means nothing if we are only bound by those cases with which we already agree. Like it or not, we cannot ignore Supreme Court precedent.” Given this record, Judge Kavanaugh has a heavy burden to convince the Senate that he is a judge who will be faithful to the entire Constitution if he is confirmed to a seat on the Supreme Court.