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.
Trump Claims Power to Bypass Limits Set by Congress in Defense Bill
In a signing statement that the White House quietly issued after 9 p.m. on Monday — about six hours after Mr. Trump signed the bill in a televised ceremony at Fort Drum in New York — Mr. Trump deemed about 50 of its statutes to be unconstitutional intrusions on his presidential powers, meaning that the executive branch need not enforce or obey them as written.
Among them was a ban on spending military funds on “any activity that recognizes the sovereignty of the Russian Federation over Crimea,” the Ukrainian region annexed by Moscow in 2014 in an incursion considered illegal by the United States. He said he would treat the provision and similar ones as “consistent with the president’s exclusive constitutional authorities as commander in chief and as the sole representative of the nation in foreign affairs.”
.. The statement was the latest example of Mr. Trump’s emerging broad vision of executive power. His personal lawyers, for example, have claimed that his constitutional authority to supervise the Justice Department means that he can lawfully impede the investigation into Russia’s interference in the 2016 election no matter his motive, despite obstruction-of-justice statutes.
.. The American Bar Association in 2006 took the position that presidents should not use signing statements, but should instead veto legislation if it has constitutional defects so that Congress has an opportunity to override that veto if lawmakers disagree. But presidents of both parties, including Barack Obama, have continued to use them, with current and former executive branch lawyers arguing that the focus should be on the credibility of the legal theories that presidents invoke when they make their objections.
The Trump team’s chilling message to Mueller
For months we’ve heard President Trump’s TV lawyers, as he calls them, bandy about the argument that he — or any president, for that matter — couldn’t have obstructed justice because justice is what he says it is.
In other words, that because, they claim, a president possesses absolute power to cut short a criminal investigation, he cannot by definition be guilty of obstructing it. Or, in the famous Nixonian formulation, as Richard M. Nixon told David Frost, “Well, when the president does it, that means that it is not illegal.”
.. The precise context involved the president’s discussion with then-FBI Director James B. Comey in which, according to Comey’s testimony, Trump cleared the Oval Office of other witnesses before discussing his just-fired national security adviser, Michael Flynn. According to Comey, Trump expressed his “hope you can see your way clear to letting this go, to letting Flynn go.”
.. The letter disputes Comey’s version of events but says it wouldn’t matter if Trump had made those statements. And then, in a magnificently gaslighting move, the letter claims that Trump is actually the hero of any obstruction story, because he fired Flynn: “Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President.”
.. the notion that the president could peremptorily call off any prosecution for any reason whatsoever — no matter how corrupt — would be laughable if it weren’t so scary.