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.
You remember the photo, taken in early August, of two men at an Ohio Trump rally whose matching T-shirts read, “I’d rather be a Russian than a Democrat.” (Now you can buy them online for $14.) It was a gibe that spoke to our moment. The Republican brand — as with presidential nominees John McCain and Mitt Romney — used to be pointedly anti-Russian; Romney called Moscow our chief global enemy. In the Trump era, though, you can be a Republican Russophile for whom Vladimir Putin is a defender of conservative values. American politics, it has become plain, is driven less by ideological commitments than by partisan identities — less by what we think than by what we are. Identity precedes ideology.
“The Democratic Party today is divided over whether it wants to focus on the economy or identity,”
.. So does the assumption that the great majority of Republicans who support Trump are drawn to his noxious views. (That’s the good news in the bad news.) Among candidates who led in the Republican primaries, after all, his percentage of the vote was the lowest in nearly half a century.
.. Identity groups come to rally behind their leaders, and partisan identification wouldn’t be so stable if it didn’t allow for a great deal of ideological flexibility. That’s why rank-and-file Republicans could go from “We need to stand up to Putin!” to “Why wouldn’t we want to get along with Putin?” in the time it takes to say: Rubio’s out, Trump’s in.
.. The best predictor of ideological animus, the study found, wasn’t a respondent’s opinions or even how strongly she held them, but what label she embraced, conservative or liberal.
.. Mason calls this “identity-based ideology,” as opposed to “issue-based ideology.”
.. Either formulation is a polite way of saying that political cleavages are not so much “I disagree with your views” as “I hate your stupid face.” You can be an ideologue without ideology.
.. “Implicit bias,” and the special tests designed to measure it, come up often in the wake of police shootings and #BlackLivesMatter. They show in-group preferences among whites and among blacks. But experiments suggest that partisan in-group preferences are far more powerful.
.. between 30 and 60 percent of people who identify as Democrats or Republicans want their kids to marry in the party.
.. Long before anyone instructs children to group people into categories, research tells us, they’re programmed to do it anyway, and one of our basic ways of making sense of the world is to form generalizations of the sort linguists call “generics” — such as “bears eat people” or “tick bites give you Lyme disease.” Those generalizations count as true, but it’s not easy to say why. Hardly any bears have eaten people , and less than 2 percent of tick bites transmit the Lyme spirochete. But, as the philosopher Sarah-Jane Leslie has argued, we’re more likely to accept a generic if it involves a reason for concern, such as getting eaten or getting sick.
.. generics encourage us to think of the class in question as a kind, a group with a shared essence. To show how this works, Leslie joined with psychologists Marjorie Rhodes and Christina Tworek to design an experiment in which 4-year-olds were shown pictures of a fictional kind of person they called a Zarpie. The people in the pictures were male and female, black, white, Latino, Asian, young and old. With one group of 4-year-olds, the experimenters made lots of generic remarks. (“Zarpies are scared of ladybugs” and the like.) With another group, they made specific statements, not generic ones. (“Look at this Zarpie! He’s afraid of ladybugs!”) A couple of days later, they showed the kids a Zarpie and said he made a buzzing sound. It turned out that the children who’d heard a lot of generics about Zarpies were much more likely to believe that all Zarpies made buzzing sounds. Generic talk encouraged them to think of Zarpies as a category of person.
.. Generic remarks about people, in short, encourage you to think of them as a kind, and you’re more likely to accept a generic claim about a group if it’s negative or worrying. (Liberals hate America; conservatives are bigots.)
.. As everyone knows on some level, we’re tribal creatures. We not only belong to groups but are easily triggered to take arms against other groups. Evolutionary psychologists think these dispositions helped our ancestors survive by creating groups they could rely on to deal with the perils of prehistoric life ..
.. True, that was before cable news and social media. But those us-and-them instincts remain an indelible part of human nature.
.. if tribalism is responsible for some of the worst aspects of our politics, it’s also responsible for some of the best. According to the historian David Herbert Donald, the 19th-century abolitionists belonged to a tribe — essentially, an old-line Northern elite displaced by a new commercial and manufacturing class — that sought to regain its position through ethical crusades. The moral math was correct, but social identity was what helped it spread.
.. Almost the entire South went in 1976 for Jimmy Carter, who won by wide margins in notably white stateslike Arkansas and Tennessee. Voters who had supported states-rights candidates got behind the progressive from Plains, Ga., because — well, they were Southern Democrats, and so was Carter
.. the region didn’t become reliably Republican until the late 1990s. A generation of Southern Democrats had to die first.
.. To wish away identity politics is to wish away gravity. It burdens us, but it also grounds us. A workable politics enlists its force — and broadens its scope
you write that people don’t get into these kinds of groups or other kinds of terrorist groups so much because of ideology, but out of a personal need for community, identity, some kind of fulfillment. You didn’t come from a broken or abusive home. Where do you think your need came from?
PICCIOLINI: I felt abandoned by my parents, not understanding at that age that my parents as immigrants had to work seven days a week, 14 hours a day to survive in a foreign country. And as a young person, I just wondered what I had done to push them away and why they weren’t there. And I went in search of a new family. But you’re right. I don’t believe that ideology nor dogma are what drive people to extremism. I believe it’s a broken search for three very fundamental human needs of identity, community and purpose.
.. It was really the driving beats and the edginess of – and the angst that I was able to release through the music that was very appealing to me. I had already been a part of the punk rock subculture so I was already searching for something to express my anger. And when I heard Skrewdriver, when I heard this music that was coming over from England at the time, it allowed me to be angry because the lyrics gave me license to do that. And I very effectively then used lyrics myself when I started one of America’s first white-power bands to both recruit young people, encourage them into acts of violence and speak to the vulnerabilities and the grievances that they were feeling so that I could draw them in with promises of paradise even through my lyrics.
DAVIES: But when you were getting into this and you were hearing that Jews and blacks and Mexicans were the enemy, I mean, to what extent did that square with any of your own experience or opinions?
PICCIOLINI: Well, it didn’t start that way. It started out with Clark and several of the older skinheads in this group appealing to my sense of pride of being European, of being Italian. And then it would move on to instilling fear that I would lose that pride and that somebody would take that away from me if I wasn’t careful. And then it went on to name specific groups through conspiracy theories that were bent on taking that pride or that privilege away from me. So it was the fear rhetoric.
.. But I can tell you that every single person that I recruited or that was recruited around the same time that I did up to now, up to what we’re seeing today, is recruited through vulnerabilities and not through ideology.
.. There were disparate groups all around the country popping up after it started in Chicago, and the goal was to try and unify everybody. But that was the first time that I felt a sort of energy flow through me that I had never felt before, as if I was a part of something greater than myself. Even at 14 years old when I was desperately searching for that purpose, this seemed to fill it. And I certainly bought in.
DAVIES: And at this point, you had shaved your head and started wearing boots and took on the skinhead look?
PICCIOLINI: I did. And I noticed a change in my environment very quickly. The bullies who had marginalized me prior now would cross the street when they saw me coming because they feared me, and then I would begin to recruit them. And I noticed a very stark change in how people treated me, and I mistook that as respect when in reality it was fear and really not wanting to be involved with what I was involved in.
.. DAVIES: You know, the music has a lot of energy and a lot of anger to it. I mean, I – you know, it’s – how much of a connection is there that – between this kind of – the emotion of that kind of music and the violence of the movement, do you think?
PICCIOLINI: I think it’s very connected. At least, it was during the ’80s and ’90s. Music was the vehicle for propaganda. It was the incitement to encourage people to commit acts of violence, and it was a social movement. People would come in for the very few concerts that were held every year from all over the country or all over the world. And it was a way to gather. And still today, I believe that music is a very powerful tool that the movement uses to inspire vulnerable young people into a very hateful social movement.
.. You went to Germany and toured there with the band with some groups there. And there’s a point where you give a really evocative description of the skinhead rally where you say, it begins with speeches, and there’s lots and lots of beer-drinking throughout and then, you know, frenzied, you know, music and then eventually, sooner or later, fights break out among different groups who are in attendance or because someone was jealous over a romantic approach to somebody’s girlfriend. It doesn’t exactly sound like people were trying to put together a strategy for change, right? Either winning elections, or armed revolt or much of anything other than coming together and having these moments with each other which often ended in violence.
.. PICCIOLINI: Well, I don’t think that that’s correct. I do think that there were a lot of concerted strategies in the ’80s and ’90s that we’re seeing take hold today. We recognized in the mid ’80s that our edginess, our look, even our language was turning away the average American white racist, people we wanted to recruit. So we decided then to grow our hair out, to stop getting tattoos that would identify us, to trade in our boots for suits and to go to college campuses and recruit there and enroll to get jobs in law enforcement, to go to the military and get training and to even run for office.
And here we are 30 years later and we’re using terms like white nationalist and alt-right, terms that they came up with, by the way, that they sat around and said, how can we identify ourselves to make us seem less hateful? Back in my day when I was involved, we used terms like white separatists or white pride. But it certainly was neither one of those. It was white supremacy and – as is white nationalism or the alt-right today.
.. we ran businesses. We ran record labels. We ran record stores. We ran magazines that were glossy. We made videos before the Internet. I mean, it was for all intent and purpose a global movement that was highly organized but lacked a, you know, a very charismatic central figure.
.. Well, aside from just the indiscriminate violence that, you know, the acts that we committed on almost a daily basis against anybody – it didn’t really matter, there really wasn’t a reason – there were also times where we were involved in, you know, in planning armored car robberies, where we talked about that. There was a point in 1991 where I was approached by somebody representing Muammar Gaddafi, from Libya, who wanted to bring me to Tripoli to meet with him and accept some money to fund a revolution against the Jews in the United States.
And that’s something that’s always scared me because that set a precedent that I think that we will see more of in the future where we start to see some of these Islamist terror groups start to partner with these far-right groups.
And while that may sound crazy because they hate each other, unfortunately, their enemy, their number-one enemy is what they would consider the Jew. So I think it’s only a matter of time before we start to see these organizations begin to work with each other and start to spread their terror more globally.
People who read this column know my political ideology: I’m a Whig. If progressives generally believe in expanding government to enhance equality, and libertarians try to reduce government to expand freedom, Whigs seek to use limited but energetic government to enhance social mobility.
Back in the 19th century, during their heyday, Whigs promoted infrastructure projects, public education, public-private investments and character-building programs to create dynamic, capitalist communities in which poor boys and girls could rise and succeed.
Whigs admired people and places that are enterprising, emotionally balanced and spiritually ardent. They had a great historic run — inspired by Alexander Hamilton, led by Henry Clay and Daniel Webster, embodied most brilliantly in the minds of Abraham Lincoln and the early Theodore Roosevelt.