Contrary to what supporters say, he’s no originalist.
But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.
.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”
To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.
.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.
But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.
.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.
.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.
.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.
.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away
.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.
Wikimedia Foundation v. NSA
The Electronic Frontier Foundation, who had filed an amicus brief in support of the plaintiffs, said it was perverse to dismiss a suit for lack of proof (standing) when the surveillance program complained of was secret, and urged federal courts to tackle the serious constitutional issues that Upstream surveillance presents.[21] The plaintiffs filed an appeal with the United States Court of Appeals for the Fourth Circuit on February 17, 2016.[22]
On May 23, 2017, the Fourth Circuit Court of Appeals vacated the dismissal by the lower court of Wikimedia’s complaints.[23][24] The Court of Appeals ruled that the Foundation’s allegations of the NSA’s Fourth Amendment violations were plausible enough to “survive a facial challenge to standing”, finding that the potential harm done by the NSA’s collection of private data was not speculative.[7][23] The court thereby remanded the suit by the Foundation and ordered the District Court of Maryland to continue the proceedings.[8] The court inversely affirmed the dismissal by Ellis of the suits by the other plaintiffs; in its finding the court noted that the non-Wikimedia plaintiffs had not made a strong enough case that their operations were affected by Upstream’s scope.[7][23]
California Is the Model for National Divorce, Not Democratic Domination
When you break down the migration numbers even further, the results are fascinating. While California loses residents to most states, it enjoys net positive migration mainly from other blue states, most notably New York, Illinois, and New Jersey. This means that California’s population churn — immigration combined with domestic migration — pushes it farther down the progressive path.
Third, while Teixeira and Leyden point to California as a model for combatting inequality, it’s one of the most unequal states in the nation. The most prosperous parts of the state are not only undeniably beautiful, they’re also populated by a creative and entrepreneurial class that gives each place a distinctive intellectual energy. If you’re rich enough, parts of California are very, very nice places to live. If you’re not, housing prices will keep you out more effectively than the guards at any gated community.
.. The end result is inequality so great that the nation’s tech titans happen to live in the poverty capital of America. According to the Census Bureau’s Supplemental Poverty Measure, nearly one out of five state residents is poor.
Finally, California’s progressive supermajority has led to a spate of petty authoritarianism that most Americans reject. I’ve written extensively about how California is seceding from the Constitution. The state has taken direct aim at the First Amendment rights of its pro-life citizens, implemented confiscatory gun-control policies, regulated pronoun usage, and repeatedly attempted to restrict religious liberty. All too often California progressives have demonstrated that “California values” are incompatible with the Bill of Rights.
.. the so-called “Cal 3” initiative announced that it had collected more than 600,000 signatures to put the break-up of the state on California’s November ballot. The longshot proposal would create three new states — North California, South California, and California — and its proponents promise that it would solve persistent problems created by “failing school systems, high taxes, deteriorating infrastructure and strained government.”
One Thing Donald Trump Would Like Is Freedom From the Press
More than any president in living memory, Donald Trump has conducted a dogged, remorseless assault on the press. He portrays the news media not only as a dedicated adversary of his administration but of the entire body politic. These attacks have forced the media where it does not want to be, at the center of the political debate.
Trump’s purpose is clear. He seeks to weaken an institution that serves to constrain the abusive exercise of executive authority.
.. He has described news organizations as “the enemy of the American people.” He has routinely called reporters“scum,” “slime,” “dishonest” and “disgusting.”
.. Rosen observed that the history of right-wing attacks on the media
extends back through Agnew’s speeches for Nixon to Goldwater’s campaign in 1964 and winds forward through William Rusher, talk radio, and of course Fox News, which founded a business model on liberal bias.
Trump is not just attacking the press but the conditions that make it possible for news reports to serve as any kind of check on power.
.. From undue influence (Agnew’s claim) to something closer to treason (enemy of the people.) Instead of criticizing ‘the media’ for unfair treatment, he whips up hatred for it.
.. Trump has some built-in advantages in his war on the media. Confidence in the media was in decline long before Trump entered politics
.. in September 2017 that 37 percent of the public had a “great deal” or “fair amount” of confidence in the mass media, down from 53 percent in 1997.
.. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave.
.. Insofar as Trump succeeds in “undercutting the watchdog, educator, and proxy functions of the press,” they write, it
leaves the administration more capable of delegitimizing other institutions and constructing other enemies — including
- the judiciary,
- the intelligence community,
- immigrants, and
- members of certain races or religions.
.. Trump is signaling — through his terminology, through his delegitimizing actions, and through his anticipatory undercutting — that the press is literally the enemy, to be distrusted, ignored, and excluded.
.. motivate it to want to call out the changing norms that it sees around it, and to defend the role of important democratic institutions when they are attacked. But when the press is itself one of those institutions, it finds itself a part of the story in ways that it is unaccustomed to being, and it has to weigh the potential loss of credibility that might come with an aggressive self-defense.
.. “The best way for the press to react to Trump’s undemocratic behavior is to continue trying to do their jobs the best they can,”
.. Ladd specifically warned against “reacting to Trump by becoming more crusadingly anti-Trump.”
Trump has successfully “put the mainstream media in a difficult position,” according to Geoffrey Stone, a law professor at the University of Chicago:
If the media directly address the accusations of fake news, they ironically run the risk of dignifying the accusations. But if they ignore the accusations, they miss the opportunity to prove their professionalism to those who have grown skeptical.
.. Trump’s disdain for the First Amendment is an integral part of a much longer series of developments in which both parties have demonstrated a willingness to defy democratic norms, although the Republican Party has been in the forefront.
For a quarter of a century, Republican officials have been more willing than Democratic officials to play constitutional hardball — not only or primarily on judicial nominations but across a range of spheres. Democrats have also availed themselves of hardball throughout this period, but not with the same frequency or intensity.
.. Fishkin and Pozen cite the work of Mark Tushnet, a professor at Harvard Law School, to define constitutional hardball as “political claims and practices”
that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings. Constitutional hardball tactics are viewed by the other side as provocative and unfair because they flout the ‘goes without saying’ assumptions that underpin working systems of constitutional government. Such tactics do not generally flout binding legal norms. But that only heightens the sense of foul play insofar as it insulates acts of hardball from judicial review.
Republicans on the far right, in particular, Fishkin and Pozen write, have been willing to engage in constitutional hardball because they are drawn to “narratives of debasement and restoration,” which suggest
that something has gone fundamentally awry in the republic, on the order of an existential crisis, and that unpatriotic liberals have allowed or caused it to happen.
The severity of the liberal threat, in the eyes of these conservatives, justifies extreme steps to restore what they see as a besieged moral order.
.. As with so many things about President Trump, it strikes me that he didn’t start the fire. He got into office because it was already burning and now he’s pouring on gasoline.
.. Accusations that the press has a political agenda can, perversely, help create an agenda which is then said to corroborate the accusations.
.. Pozen described Trump’s denunciation of the press as “the culmination of several decades of comparable attacks by media pundits, such as Rush Limbaugh” and he argues that Trump’s calls
to lock up one’s general election opponent, encouraging online hate mobs, lying constantly, attacking the press constantly, contradicting oneself constantly, undermining the very idea of truth are individually and in common potentially profound threats to the integrity and quality of our system of free expression.
But if California progressives try to remake, say, Tennessee in their own image, they’ll find that resistance is fierce. American federalism can encompass progressive and conservative enclaves. American polarization reinforces and hardens those bubbles. Teixera and Leyden believe that one side is destined to dominate. Perhaps. But there’s a different option: We could be destined to go our separate ways.