According to some, there is no good reason to oppose Donald Trump’s Supreme Court nominee, Brett Kavanaugh. He is experienced, credentialed, and intelligent. He is “an avid consumer of legal scholarship.” He is a reliable participant in carpools. He generously refrains from committing sex crimes against his female clerks. (“These days the press is full of stories about powerful men exploiting or abusing female employees. That makes it even more striking to hear Judge Kavanaugh’s female clerks speak of his decency…”) He sends thoughtful notes to people.
Notably, some of the praise for Kavanaugh has come from individuals who self-describe as “liberals.” Akhil Amar, one of Kavanaugh’s former professors at Yale Law School, has called Kavanaugh a “superb nominee” and cautioned Democrats not to “sour the hearings by attacking Judge Kavanaugh and looking to complicate the proceedings whenever possible.” Lisa Blatt, who calls herself a “liberal feminist lawyer” (though one can question whether the architect of the Washington Redskins’ legal defense is properly classified as a member of the left), says that “sometimes a superstar is just a superstar” and “Democrats should quit attacking Kavanaugh—full stop.” Blatt says that “it is unbecoming to block him simply because they want to, and they risk alienating intelligent people who see the obvious: He is the most qualified conservative for the job.”
Conservatives have suggested that opposition to Kavanaugh is born from a combination of ignorance and ideology. David Harsanyi in The Federalist says that “Democrats Don’t Fear Brett Kavanaugh, They Fear The Constitution.” For the left, he says, the nation’s charter is “a document they seem believe must bend to the will of their policy preferences rather than preserve legal continuity, limited government, individual liberty, or enlightenment ideals.” This line is standard on the right: the liberals are the Activists while the conservatives simply follow the Law. In the context of the Kavanaugh nomination, this means liberals are trying to stop Kavanaugh because he’ll be committed to faithful and honest jurisprudence rather than giving gay people free cakes and forcing nuns to buy birth control.
I will, of course, give this perspective a fair hearing. But let’s first note that many of the arguments being advanced in favor of confirming Kavanaugh are—and I have no polite way to put this—simply manure. Here’s one from The Hill:
Judge Kavanaugh was never rattled nor condescending. He was thoroughly decent and always respectful — well, maybe not always, as he has a wry sense of humor and loves to poke fun, even at himself, often followed by a choppy, contagious laugh.
Don’t even get me started on that Washington Post piece about how reliable he is as a carpool driver:
Brett’s contribution to our school’s community extends beyond the sidelines. He and his wife, Ashley, support their two daughters and other children at countless school and church functions throughout the year… And in a city where professional obligations can often take priority over personal ones, Brett is a steady presence at his daughters’ events, even if it means racing across town just to catch the last 15 minutes of a game or program.
Yes, and Lenin liked kittens, but he still shouldn’t be put in charge of a secret police. The Supreme Court’s decisions have serious implications for millions of people’s lives, so appointees should probably be measured by their judicial philosophies rather than by whether they attend their daughter’s softball games. Jay Willis, in a bluntly-titled commentary called “The Liberal Case for Brett Kavanaugh Is A Bunch of Horseshit,” suggested that these arguments are the absurd extreme of an elite political world “in which players prioritize comity and civility over the real-world implications of its work.” The more serious conservative argument is the one made by J.D. Vance, who says that the question should be “Who is best at being a judge?” and can neutrally apply the law. At judging, his supporters say, Kavanaugh excels. And while he applies a philosophy of “textualism” that is often associated with Justice Antonin Scalia, that philosophy is only ideological if honesty and reading comprehension are ideological. (Textualism, which is related to but distinct from “originalism,” means prioritizing the words of a law over the “spirit” or “intent” of the law. It is supposedly meant to keep judges from imposing their own subjective values. You will not be surprised to learn that it does not do this.)
Kavanaugh himself has said that he doesn’t let his politics affect his judicial decision-making. He has said that “a good judge . . . cannot act as a partisan.” Rather, “judges have to check any prior political allegiances at the door.” When first nominated to the judiciary, he pledged to the Senate that “if confirmed I will interpret the law as written and not impose personal policy choices,” because “as a judge…it is not your personal views that are relevant or your past affiliations that are relevant.” Kavanaugh says that on the bench, he is not a “conservative,” except insofar as conservatism implies a deference to text. He applies the law as it is written, and if someone finds the result appalling, they should take it up with the law’s drafters rather than with him. This is the conservative response to anyone who says something like “Kavanaugh has ruled against immigrants and workers, and in favor of big corporations.” It doesn’t matter who he has ruled against, it matters what the issues in the case were. He does not make his rulings on the basis of which party is sympathetic, but on the basis of what the law says, and if the law happens to be unfavorable to immigrants, that’s not because Kavanaugh is anti-immigrant but because lawmakers are.
Judges have made claims like this about themselves for a long time. In 1955, the legal realist scholar Fred Rodell said disparagingly of this point of view:
They may say—and often do—that it is not they who make the decisions, lay down the rules, give orders to every other governing official in the land; they may say they do nothing but ‘interpret’ the laws, including the Constitution; they may talk at times as though they neither had nor need human minds, as though they might almost as well be a nine-headed calculating machine, intricately adjusted to the words of the Constitution and of lesser laws, and ready to give automatic answers to any attorneys who drop their briefs in the proper slot and push the button. But even non-lawyers have come to find a trifle naive and unconvincing the old fantasy that our government, especially its judicial branch, is mechanically controlled by laws, not by men.
Rodell argued that for the entire history of the Supreme Court, “politics” has been crucial to the justices’ decision-making, since every judge is a human being with values shaped by their circumstances, and those values factor into their resolution of cases. But perhaps Brett Kavanaugh is the first judge in history who has managed to achieve a perfect neutrality, without his “personal views” entering into his work. Shall we see?
First, let’s look at a case called National Federation of Federal Employees v. Vilsack. The question in the case was whether the government had the right, under the Fourth Amendment, to require every employee in a Forest Service Job Corps program to submit to a drug test. The D.C. Circuit Court of Appeals held, in a 2-1 vote, that the government could not require the drug tests, because it didn’t have good reason to suspect that the employees had actually done drugs. The Court reaffirmed that to search somebody, the government needs to get a warrant and show probable cause, unless “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” But the government “offered no foundation for concluding there is a serious drug problem among staff” and instead “offered a solution in search of a problem.”
Judge Kavanaugh, however, disagreed. Kavanaugh felt that the Forest Service should be allowedto drug test the employees. He said that he “would conclude that the government’s strong interest in ensuring a drug-free workforce at these schools outweighs the infringement of individual privacy associated with this drug testing program.” In fact, he said, “it would seem negligent not to test.”
NFFE v. Vilsack is not a particularly historically notable case. It’s not about abortion, immigration, indefinite detention, or the other “hot button” issues that are talked about during Supreme Court confirmations. I cite it because it shows very clearly that Kavanaugh is being dishonest when he talks about not imposing his “views.” The case requires a judge to impose their views. The question in the case is whether the government’s stated interest is sufficiently important to exempt it from the Fourth Amendment’s presumption against suspicionless searches. The majority thinks the government’s interest is hogwash (“a solution in search of a problem”). Kavanaugh thinks the exact opposite (“it would seem negligent not to”). This is a straightforward disagreement over which value is more important: the employee’s right to privacy or the government’s anti-drug initiative. The text of the Fourth Amendment cannot answer that question, and what you think of it is going to depend on whether you’re the sort of person who thinks government justifications for the drug war are nonsense (i.e. a liberal, lefty, libertarian, or left-libertarian) or the sort of person who thinks drugs can be very harmful and governments have good reason to want to root out drug use (i.e. a social conservative). Law requires weighing different interests and that weighing process requires value judgments.
Let’s look at another minor but telling case. In Island Architectural Woodwork v. National Labor Relations Board, the union for employees at a “manufacturer of custom modules for office interiors” had filed an unfair labor practices complaint. They alleged that the company, Island Woodwork, was avoiding bargaining with its union by farming some work out to a “separate” non-unionized company (“Verde Partitions”) that was actually just the main company’s “alter ego.” The National Labor Relations Board determined that the union was correct, and found that Island had violated its agreement with the union. The appellate court, 2-1, found the NLRB’s decision reasonable and upheld it. Kavanaugh dissented.
It’s obvious to anyone who knows much about labor relations that Island had simply set up a shell corporation in order to avoid having to use union labor. The court said that “Verde picked up where Island left off— manufacturing the Island-Verde Partition for the same customer with the same equipment in the same place in the same way with many of the same employees and managers,” and it was even owned by the same family. Island’s CEO “repeatedly misled the Union about Island’s relationship to Verde,” lying and pretending to have “sold” equipment to the new shell company, when he had actually just granted it free use. Kavanaugh, however, either playing dumb or actually dumb, said that Company 2 was totally not just a scheme to evade the union. The majority, he said, “seems to have found something shady in the fact that Verde was started and primarily owned by two daughters of Island’s primary owner.” Kavanaugh could see nothing shady in this.
This case shows Kavanaugh’s bias. Because he clearly hasn’t spent any time among laborers or read much about labor politics and labor history, he doesn’t understand how companies work. He doesn’t, or won’t, realize that this exactly the sort of maneuver one would expect of a profit-maximizing company that was, as Island’s CEO was, frustrated with the costs of a unionized workforce. Kavanaugh’s bias means that when cases involving unions come to the Supreme Court, he’s not going to actually understand what’s going on, because he will have a conservative’s naive understanding of corporate motives. If Island v. NLRB is a clue, he will rule against workers even in cases where the law is on their side, because he sees the facts through a lens that is more sympathetic to business than business’s actual behavior warrants.
To me, Kavanaugh’s decisions on labor law are especially troubling, because at a time when workers urgently need their few existing legal protections scrupulously honored, his bias in favor of employers has even led him to disregard sound principles of legal reasoning in limiting workers’ rights. Consider Agriprocessors v. NLRB. Agriprocessors was a meatpacking company that treated its employees like garbage, overworking them, underpaying them, and firing them if they complained. The employees voted to unionize. The company then declared that it would not recognize the union because many of the employees who voted were unauthorized immigrants. Agriprocessors argued that unauthorized immigrants should not legally be considered “employees,” even if they were, in fact, employed. The National Labor Relations Board scoffed at this, requiring the company to recognize the union. The appellate court agreed, treating it as an easy case. The National Labor Relations Act actually defines “employees,” and its definition is all about whether you work for someone. There is nothing about legal status. The Supreme Court had also confirmed explicitly that “since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” Immigrants get, then, the rights that workers would ordinarily have under the NLRA.
But Kavanaugh dissented. He did not think unauthorized immigrants were “employees,” even if they were employed, and thought they should have no such rights. This was, he said, because in the time since the NLRA and the Supreme Court’s decision, Congress had made it illegal to hire unauthorized immigrants. If it was illegal to hire them, Kavanaugh said, they were not employees because they were never employed. Now, one can criticize this as a simple absurdity: how can it be illegal to employ unauthorized immigrants if it’s also impossible to employ them? Kavanaugh’s dissent was also shoddy from a purely legalistic perspective. (Skip rest of paragraph if you find arcane legal discussions tedious.) Even though Congress had never actually said unauthorized immigrants weren’t covered by the NLRA, Kavanaugh believed that by criminalizing their employment Congress had implicitly amended the relevant section of the NLRA—though it had never said it intended to do this. And even though the Supreme Court had said anyone not expressly exempted must come under the NLRA’s provisions, Kavanaugh believed the Court had (again, implicitly) meant that if Congress criminalized employing undocumented people, this would count as exempting them. In response to this, the majority pointed out that Kavanaugh was ignoring tons of settled court precedent that disfavors finding “implicit” repeals of one law by another instead of trying to reconcile them. (So much for textualism!)
So Kavanaugh tried to strip away a fundamental right from undocumented workers, even if it meant using bad reasoning and concluding that you can be an employee (in that you fit the longstanding statutory definition) but not really an employee (in that you don’t get any of the rights). This alarms me, because while judges who see themselves as merely “applying” the law do not care about the law’s consequences—the facts about what it was actually like to work at Agriprocessors do not, of course, appear in either the court’s opinion or Kavanaugh’s dissent—I do care about those consequences, and I do not want Supreme Court justices who are going to deny abused workers their legal rights.
Now, do I think Kavanaugh is a man who consciously dedicates himself to harming workers, and cackles as he comes up with justifications for letting them suffer? No. I think he is like many of the people I met in law school: simply indifferent to the lives of people different from himself, unaware of his biases, and overly confident in his ability to be “objective” and to free himself from prejudice. I don’t think he cares very much about what happens to immigrant laborers, and because his decisions on the Supreme Court have the power to cause great harm or great benefit to immigrant laborers, and his prior decisions have been affected by his prejudices, I believe he must be kept off the court.
I say that Brett Kavanaugh is indifferent to the lives of people different from himself. That is a serious charge. Can I prove it? Well, there are plenty of places where he has made it clear. See, for example, this article about Hawaiians, which derisively claims native activists seek a “racial spoils system” without actually considering why these Hawaiians might feel the U.S. owes them a little something. But to see it in his judicial opinions, I’d invite you to take a look at Saleh v. Titan Corp, in which Iraqis who had been detained at Abu Ghraib tried to sue American private contractors who, the Iraqis alleged, had tortured them. The majority opinion, which Kavanaugh joined, dismissed the Iraqis’ claims. Tellingly, the majority opinion also went out of its way to minimize what happened to the Iraqis, writing that “while the terms ‘torture’ and ‘war crimes’ are mentioned throughout plaintiffs’ appellate briefs and were used sporadically at oral argument, the factual allegations in the plaintiffs’ briefs are in virtually all instances limited to claims of ‘abuse’ or ‘harm,’” and there was “only one specified instance of activity that would arguably fit the definition of torture (or possibly war crimes) is alleged.” The court’s remarks on the merits were gratuitous—it was supposed to decide whether the ex-detainees could sue the contractor, not whether the ex-detainees could prove their claims. But the court downplayed the seriousness of what was alleged, and even cast doubt on whether the plaintiffs were telling the truth, so that it wouldn’t seem so outrageous to rule that contractors wouldn’t be liable for it.
In a scathing dissent, Merrick Garland took the majority to task, detailing all of the facts alleged in the case that the majority somehow forgot to mention:
“The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison. The plaintiffs contend that CACI and Titan employees subjected them to the following acts, among many others: “Torturing Plaintiff Ibrahim’s husband by repeatedly inflicting blows and other injuries to his head and body, thereby causing extreme physical and mental pain and suffering and, ultimately, his death. Torturing Plaintiff Aboud by beating him with fists and sticks, urinating on him. and threatening to attack him with dogs. Torturing Plaintiff Hadod by beating him with fists and striking his head against a wall and forcing him to watch his elderly father being hung up and then beaten. Torturing Plaintiff Al Jumali’s husband by beating him, gouging out one of his eyes, electrocuting him, breaking one of his legs, and spearing him, thereby causing his death. Roping Plaintiff Saleh and 12 other naked prisoners together by their genitals and then pushing one of the male detainees to the ground, causing the others to suffer extreme physical, mental and emotional distress repeatedly shocking Plaintiff Saleh with an electric stick and beating him with a cable; and tying his hands above his head and sodomizing him. Stripping Plaintiff Al-Nidawi, tying his hands behind his back and releasing dogs to attack his private parts. Forcing Plaintiff Haj Ali to stand on a box, with electrical wires attached to his wrists and shocking him with intense pulses of electricity.” [gigantic pile of internal quotes, ellipsis, and brackets omitted]
I quote this at length to give the context for the opinion’s comment that there was only “one instance” that would “arguably” fit the definition of torture. This is what Kavanaugh said contractors could never be held liable for doing, even if it was fully provable in court. And, as Garland pointed out in dissent, this was despite the fact that the Federal Tort Claims Act explicitly states that contractors do not have the kind of exemption from liability that the U.S. government has.
This wasn’t the only case in which Kavanaugh shielded a powerful corporation from being held liable for acts it (allegedly!) committed against poor foreigners. In Doe v. Exxon Mobil Corp., the D.C. circuit court dealt with a lawsuit filed by a group of Indonesian villagers against Exxon. The villagers “allege[d] that Exxon’s security forces committed murder, torture, sexual assault, battery, false imprisonment, and other torts.” Exxon attempted to have the suit dismissed. The court, 2-1, found that Exxon hadn’t shown that the suit should be dismissed, and allowed it to proceed.
Kavanaugh, you won’t be surprised to hear, dissented. The “plaintiffs claim they were injured in Indonesia by members of the Indonesian military who provide security for Exxon in Indonesia,” he wrote, but the U.S. government “has stated that the lawsuit will adversely affect the foreign policy interests of the United States… in the ongoing war against al Qaeda.” The State Department said the case could have an adverse impact on “interests related directly to the on-going struggle against international terrorism,” and since “the federal courts give deference to reasonable explanations by the Executive Branch that a civil lawsuit would adversely affect the foreign relations of the United States,” the villagers shouldn’t be allowed to sue.
So, George W. Bush’s State Department said that if the villagers sued Exxon, it would harm the fight against Al-Qaeda and undermine the War On Terror. Kavanaugh accepted this as “reasonable.” Kavanaugh does not apply the slightest bit of skepticism, or try to figure out whether there is a way to adjudicate the claims without playing into the hands of Osama bin Laden. Instead, as soon as the government asked for Exxon to be let off the hook, he would have cast the villagers out of court.
Note, too, the difference between the way the majority describes the claim and the way Kavanaugh does. Kavanaugh says the plaintiffs allege they were “injured.” Not that they were tortured and sexually assaulted. Of course, they are stating a legal “injury.” But if Kavanaugh was more clear about the actual implications of his decision—namely that if a U.S. corporation tortured people abroad, they couldn’t be held accountable so long as the State Department said the word “Al-Qaeda”—he would look, well, a little monstrous.
Kavanaugh, then, is both a bad judge and a bad person. He is a bad judge because, in Saleh v. Titan, he joined an opinion that, even though Congress had never given contractors immunity from being held accountable for torturing people, found a way to shield these contractors, and did so while misleadingly presenting the alleged facts of Abu Ghraib and casting doubt on the claims before they had been litigated. He is a bad judge because he suggested the very explicitly-defined term “employee” in the National Labor Relations Act doesn’t apply to undocumented people, and he’s a bad judge because he can’t tell when a company is obviously trying to pull the wool over the court’s eyes for the purpose of subverting its labor agreements.
More importantly, though, he’s a bad person. He is a bad person because, well, he needlessly kept a group of Iraqis from litigating important claims against companies that had allegedly committed horrific atrocities. He’s a bad person because, in multiple cases, he has shown himself uninterested in harms inflicted on workers by employers. When the question is whose judgment to defer to, he readily defers to the reasoning and position of corporations over workers, and the executive branch over victims. Whether or not he’s aware that he’s doing this, it’s evident from his work that he considers those players more credible, more honest, and more worthy of protection. (As a purely empirical matter he has “written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.”) And he’s a bad person because, well, he’s a “textualist,” and textualism involves shedding morality and being blind to the stakes and consequences of one’s decision-making. (To see why a judge who simply “applies the law as written” and excises every ounce of human compassion from their work will end up being a horrible person, take our “You Be The Judge!” quiz.)
Kavanaugh is not, however, unique among judges in this respect, and it’s worth—as briefly as possible—explaining why “political” judging is inevitable, and there is no “unbiased” judge that Donald Trump could possibly pick. The “textualists,” of which the late Justice Scalia was the most prominent, repeat the line Rodell mocks, about the judge’s job being to simply apply the laws as written. They claim, as Kavanaugh did, that “preference” doesn’t enter into it.
Many ordinary people know instinctively that this is horse pucky. They know that Bush v. Gore was a “political” decision based on judges’ preferences, Obergefell v. Hodges and Janus v. AFSCME were political decisions based on judges’ preferences, as are so many others. They know that there are “conservative” judges and “liberal” judges. And they know that however much Kavanaugh may deny he’s going to impose his “preferences,” he’s definitely going to impose his preferences.
But there are some small few who still suggest there can be such a thing as an “apolitical” court. Here’s a conservative writer amusingly begging other conservatives to stop admitting they want “conservative” justices and say they want Totally Neutral Text-Applying Justices instead:
Conservatives, stop saying we need a conservative on the court. Pro-lifers, stop saying we need a pro-lifer…. The danger in seeking a “conservative” justice or a “pro-life” justice is that it frames the pick in precisely the wrong way: politically… The Supreme Court was never intended to be a robed legislature…
The Court, however, has always been a robed legislature, and will never stop being one. To see why, why don’t we glance at the Constitution itself, just to remember what it looks like:
What do you see? When you read that cruel and unusual punishments shall not be inflicted, do you see that as permitting torture like long-term solitary confinement? When you read that Congress “shall make no law abridging the freedom of speech,” do you think that permits the prosecution of whistleblowers? Is the collection of telephone metadata an “unreasonable search”? When you read that “no person shall be deprived” of life or liberty without “due process of law,” how does that make you feel about the death of Armando Frank? Do you see a small government or a big one? Do you see a strong executive branch or a weak one, an autonomous administrative state or a highly constrained one? Whatever your answers are, if you’re a judge, you will likely insist that they are not only your preferred interpretations, but the correct interpretations, the ones to be found in the document itself. (And indeed, you won’t be wrong about that, considering how much can be observed in inkblots.)
Questions of interpretation are inseparable from what is called our “politics,” even as conservatives like to insist that all they do is “read the text and apply it.” Consider the case of Janus v. AFSCME. The court’s conservatives, the ones who simply apply the law as written rather than imposing their “political preferences,” decided that it was a violation of the First Amendment for government employees to have a fee deducted from their paycheck to pay for union representation. The text of the First Amendment, of course, is silent on the question of union dues. But Samuel Alito said that workers were being “forced” to “speak,” and that the situation was analogous to one in which the government required everyone to sign a form saying they believed something that they didn’t believe. But the conservative justices do not hold this view of “force” in all circumstances. Requiring employees to pay for a union is force, but making them do any of the other million things employers require of employees, well, that’s just an ordinary part of the contractual relationship.
But the left’s view of Janus is affected by politics, too. We think unions actually increase employees’ abilities to speak (because they do), and we think this requirement is defensible partly because we think it’s important. It’s possible to decide the Janus case without having any opinions on unions specifically. But it’s not possible to intelligibly decide the Janus case without having a set of normative values, some beliefs about which things ought to be protected and what the government ought to be doing. In other words, politics, a vague word that has been used to obscure the fact that judges face “ought” questions as well as “is” questions.
For confirmation that there are necessarily value judgments involved in law, we can turn to a somewhat unexpected witness: Brett Kavanaugh. Despite publicly insisting that he doesn’t make law, but only applies it, Kavanaugh wrote an article last year in which he very persuasively made the case that in many important areas of law, judges cannot actually be neutral, that their sense of what matters and what doesn’t will inevitably be part of their reasoning.
First, Kavanaugh repeated all the stuff about judges as disinterested, valueless machines whose job is to state the rules rather than make the rules:
I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.
But Kavanaugh then focuses on two areas of law in which the whole “umpire” idea somewhat collapses because subjective judgment matters a lot. First, “there is no definitive guide for determining whether statutory language is clear or ambiguous,” and this “matters in a way that threatens the vision of the judge as umpire.” Second, when it comes to deciding how Constitutional rights should apply, people have differing ideas of what words like “speech,” “equal,” “process,” “arms,” and even “no” should be taken to mean.
Kavanaugh cites the First Amendment: “Congress shall make no law abridging the freedom of speech…” But the First Amendment cannot be read literally to mean “no law,” because that would mean Congress couldn’t make laws punishing libel or fraud or threats or the infamous “shouting fire in a crowded theater unless the theater is actually on fire in which case it’s probably fine.” There necessarily have to be exceptions, and it’s the judges’ job to figure out which exceptions are constitutionally permissible. But since the Constitution doesn’t actually say which exceptions are permissible, judges have developed tests: how strong is the individual’s right to speak when compared with the government’s interest in regulating that speech? A judge can’t answer that question without introducing their own values, because their values are going to factor into whether they believe the government’s interest is “strong” or “weak.” Here’s Kavanaugh:
If nothing else, I want to underscore that the compelling interest/ important interest/strict scrutiny/intermediate scrutiny formulations are rather indeterminate…. On one hand, judges must evaluate the strength of the government’s interest in the regulation. On the other hand, judges must evaluate how big a burden the regulation places on the relevant right. But those verbal formulations offer little principled guidance for making either determination, much less for weighing the two sides against one another. Those formulations are sometimes empty of real, determinate, objective meaning. At most, they are a mood-setter, but they don’t tell us in the end whether to uphold a state ban on semiautomatic rifles or a particular state regulation of doctors who perform abortions or a law that proscribes or limits expenditures in support of political candidates. Judges have no objective way of deciding whether an interest is “compelling” or “important” without making a judgment about the desirability of that interest. Nor do they have an objective way of deciding whether legislation is sufficiently tailored to that interest without making a judgment about how well the legislation aligns with the state’s goals. These verbal formulations therefore do not constrain or guide judges in meaningful or predictable ways. They put judges in the position of making judgment calls that inevitably seem rooted in policy, not law.
Kavanaugh says that given this problem, it wasn’t surprising that Citizens United came out the way it did:
In recent years, the big expenditures case is Citizens United. That case applied the compelling governmental interest test. And perhaps not surprisingly, we see Justice Kennedy writing the majority opinion tilting toward liberty and the dissent emphasizing deference to the reasonable judgment of the legislature. Who’s right? Well, that depends on what test you think the Court should apply to assess constitutional exceptions, and then how you would apply that test to this particular issue.
Now, Kavanaugh claims he is just criticizing the way that judges resolve these difficult questions, by applying tests such as whether an interest is “compelling” or not. He makes it sound as if he is calling for judges to stop using these “verbal formulations” and return to his vision of the judge as someone who “strive[s] to find the best reading of the statute, based on the words, context, and appropriate semantic canons of construction.”
But in many cases, that’s not actually possible. And it’s obvious why it’s impossible. Before it is decided, there isn’t a legally “correct” answer to Citizens United, just as there isn’t a legally correct answer to Brown v. Board of Education. Does the 14th Amendment’s Equal Protection clause prohibit segregated schools? It doesn’t say. The people who drafted the Amendment didn’t think it did—schools stayed legally segregated for nearly 100 years after the Amendment passed. How you answer this question is going to depend on what substantive meaning you give to the word “equality,” and how much you think we should defer to the 19th century conception of it. This is going to depend on your values. (Justice Scalia flailed when he tried to explain why Brown was correctly decided, given that “equality” never meant desegregation until activist judges said it did. The explanation he gave could be used to justify banning solitary confinement under the cruel and unusual punishment clause. Scalia would never admit that his distinction between the two cases was based on his own moral temperament rather than a difference in The Law.)
Kavanaugh ultimately isn’t able to come up with any definitive way to replace interest-balancing tests with something more “objective”:
I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases. But regardless of what the solution may be, I think we should square up to the problem.
We could indeed simply “require” judges to focus on “tradition.” But that would just mean solving the problem by requiring judges to think like political conservatives, who think things are valuable because they’re old. (And would mean Brown v. Board was wrongly decided.) Likewise, we could proffer a rule that in ambiguous cases involving management versus labor, we always defer to management. Fixing the problem Kavanaugh’s way, however, still confirms that anyone with left values should be doing everything possible to keep Kavanaugh off the court. Since we on the left believe America’s historical values were immoral and need to be updated, our morality demands that we defer to our updated values rather than historical ones Kavanaugh prefers.
Fred Rodell concluded in 1955 that “the constitutional theories of all politicians, including Supreme Court Justices, are no more than high-falutin ways of arguing for the political ends they are really after.” This is overstating the matter a bit; the way I’d put it is that there often is no clear dividing line between constitutional theories and “politics,” and it’s impossible in law to avoid making judgments about how things “should” be rather than just how they “are.” You can, however, delude yourself into thinking that you’re not making normative judgments, and judges throughout history have done exactly this.
In his more dishonest moments, Brett Kavanaugh has insisted that judges do not make policy, they simply interpret laws, and sworn that he himself is simply committed to applying the laws as they are written. In his more honest moments, Kavanaugh has admitted that judges have to use, well, judgment, and there is no obvious way around the fact that judges’ values guide their decisions. A conservative will interpret the facts of a labor dispute differently than a leftist will, and a conservative will be more inclined to think drug testing is worth invading people’s privacy for.
Importantly, this is far truer on the Supreme Court than in any other court. As the highest authority, the Supremes do not just apply the law, they must also make a lot of it. At the appellate level, Brett Kavanaugh has spent much of his time applying Supreme Court precedent. In response to many criticisms of him, he can simply claim to have been deferring to higher judgment. So, when he struck down a gun ban, he was simply following the Heller decision. And when he said that the First Amendment prohibited net neutrality, he claimed that this was simply the logical application of a Supreme Court decision that said the First Amendment prohibited telling cable companies what content to carry. (And, admittedly, that decision is terrible, as is every single other decision that treats Apple or Turner Broadcasting as indistinguishable from you or me.) But if he is on the Supreme Court, Kavanaugh will no longer be able to make these excuses. He will be faced with the possibility of affirming or overruling these prior decisions, and what he chooses to do will depend on his own convictions.
So the courts are “political,” have always been political, will always be political. But political is not a dirty word. Politics is the expression of our deepest values, that which we find important. What does Brett Kavanaugh find important? Mark Stern of Slate says Kavanaugh has spent “his career protecting polluters, scammers, corporations, and gun sellers” and his idea of liberty is perverse: “Liberty for undocumented minors and Guantanamo detainees? No. Liberty for predatory lenders, industrial polluters, telecom monopolies, religious employers, Abu Ghraib abusers, and assault-weapon enthusiasts? Absolutely.” I am not quite this cynical, and would not put “religious employers” alongside “Abu Ghraib abusers,” though the telecom companies certainly belong there. But I do believe Kavanaugh would be a horrific Supreme Court justice, and I believe that because I think that judges should make sure claims by torture victims get litigated, should make sure workers get to unionize, and should make sure detainees aren’t imprisoned on an island without trial until eternity. These are the responsibilities not just of a judge, but of any moral human being who has the power to affect the situation. And so Kavanaugh’s parenting skills and stimulating repartee are irrelevant. It is important to use your job to do good, and to make sure the justice system is functional and fair, and Kavanaugh has not done that. Instead, he has made biased, illogical, morally repugnant, non-textualist (gasp!) decisions that make the world worse. This should cause everyone to oppose his confirmation.
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