john-roberts

Who Is Brett Kavanaugh?

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.

.. Nor is there founding-era evidence for some of the new anti-regulatory doctrines the court has begun to accept. In the past few decades, conservatives put considerable energy into attacking the administrative state. The most radical idea is that regulatory agencies like the Environmental Protection Agency lack the authority to issue regulations; a more modest version is that they can do so only if Congress is crystal clear about it. In his opinions and other writings, Judge Kavanaugh has pushed this theme as well.

On questions about the scope of presidential power, the founding-era evidence also suggests significant limits. But Judge Kavanaugh has signaled that he rejects them. He has written that it’s “debatable” that a president can be indicted while in office and criticized a case that allowed Congress to create an independent counsel to investigate executive branch officials. Again, Here, once more, principled originalism could give way to the modern conservative position favoring a strong presidency.

.. 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.

The Americans Who Saved Health Insurance

The bills had virtually no independent defenders. This intellectual honesty — the avoidance of false balance — helped the public understand that this wasn’t a classic partisan fight with each side making some good points. It was a case of cynical politicians willing to hurt their constituents in order to keep a misguided campaign promise.

.. Senator Chris Murphy, a Connecticut Democrat, told me that he thought the two senators’ history of partisan independence was crucial: “Susan and Lisa knew you could stand up to the Republican leadership and survive.”

.. Chief Justice John Roberts is a movement conservative. Yet he cast the vote that saved Obamacare in 2012 partly because he understood that a partisan shredding of the safety net could undermine his institution — the Supreme Court.

John McCain is also deeply conservative. Yet, like Roberts, he realized that taking health coverage from millions, in a hasty, secretive process, could damage his favorite institution — the Senate.

When his colleagues didn’t heed his warning to abandon that approach, McCain flipped his vote. “No,” he announced at 1:30 a.m. on Friday, shocking Democrats who had given up on him and Republicans who had assumed he wouldn’t really break ranks on principle.

.. They had also held their own town halls, and they knew the bills were deeply unpopular.

Justice Gorsuch Delivers

“One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy,’ ” Mr. McConnell told a political gathering in Kentucky last summer.

With this audacious pledge — made only hours after news of Justice Antonin Scalia’s death on Feb. 13, 2016, reached the public — Mr. McConnell demolished longstanding Senate tradition and denied a vote to one of the most well-qualified nominees ever

.. Justice Gorsuch, who was confirmed less than three months ago, has already staked his claim as one of the most conservative members of the court.

.. Chief Justice John Roberts Jr., a staunch conservative in his own right, often seeks out points of compromise among the justices. On June 26, the court’s last opinion day, Justice Gorsuch appeared to be having none of it.

.. In each instance, he sided with Justice Clarence Thomas, who, at least until now, has been the court’s most conservative member.

..The problem isn’t so much Justice Gorsuch’s judicial ideology

.. The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland. Had Mr. Garland been confirmed, the court would have had a majority of Democratic-appointed justices for the first time in almost half a century.

.. Instead, the court is back to a Republican-appointed majority, the consequences of which will only become more apparent next term, when the court is scheduled to hear high-profile cases involving partisan gerrymandering

.. The conservative majority will grow even stronger if more justices retire during Mr. Trump’s term, a very good possibility. At that point, the president and Senate Republicans — who destroyed the filibuster for Supreme Court nominees in order to confirm Justice Gorsuch — will be able to put anyone they like on the court.

.. Mr. Trump will be out of power by 2025 at the latest. But thanks to Mr. McConnell, Justice Gorsuch, and whoever else might join him in the next couple of years, will entrench a solid conservative majority on the court for far longer.

Will the Supreme Court Stand Up to Trump?

To the extent that the presidential campaign focused on the Supreme Court with any specificity, the attention was on abortion, religion, gay rights, guns and other familiar issues on the social agenda. But going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.

.. When the president, aided by his inner circle and his congressional enablers, pushes through some norm-shattering order, wipes away duly promulgated regulations with the flourish of a pen or drives a truck through the wall between church and state, where will the Roberts court be? (And where will Mr. Trump’s Supreme Court nominee, the appeals court judge Neil M. Gorsuch, be?)

It’s hard to imagine two figures on the current public stage less alike than the button-down chief justice and the flamboyant president.

.. Watching Chief Justice Roberts administer the oath to Donald Trump, what struck me was the unlikelihood that these two men would even be sharing the same stage — and not only because during the campaign, Mr. Trump called the chief justice “an absolute disaster” for his votes to preserve the Affordable Care Act.

If Donald Trump is the in-your-face chief executive, John Roberts has perfected the art of being the nearly invisible chief justice. He can be tough on the bench during arguments and in the justices’ private conference as well, but in public he exudes a self-deprecating diffidence.

.. The chief justice, a strategic thinker with exemplary work habits, is every bit a match for the president. He is a very good lawyer with very conservative instincts, and his own long-range game plan includes getting the government out of the business of taking account of race, even for the purpose of protecting voting rights or preserving the hard-won gains of integration.

.. The question now is to what extent he is willing to lead his court in standing up against a president who, it is hardly far-fetched to imagine, may trample the First Amendment, withhold information the law regards as subject to disclosure, or defy court orders on immigration or other matters.

.. Chief Justice Roberts signed a hyperbolic dissenting opinion by Justice Scalia that opened with “America is at war with radical Islamists” and went on to warn that the decision “will almost certainly cause Americans to be killed.” Perhaps more to the present point, the chief justice also filed a dissenting opinion of his own, in which he asked rhetorically who had won the case. The answer, he said, was “certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

.. Robert Post and Reva Siegel, maintained that rather than ask nominees how they would decide current or future cases — questions that nominees properly refuse to answer — senators should ask how they would have decided past Supreme Court cases.