Unless Judge Brett Kavanaugh’s confirmation hearing is derailed by some unexpected allegation about his personal life, the proceedings will be dominated by questions about his writings and judicial philosophy. His opponents will want to highlight material that suggests that once on the Supreme Court, Kavanaugh will vote to eliminate or severely limit the right to abortion. They can also be expected to try to show that he will protect President Donald Trump by repudiating the principles established by the famous 1974 case that required President Richard Nixon to turn over the Watergate tapes to a grand jury (United States v. Nixon).
Kavanaugh’s supporters will use the same kinds of materials to draw reassuring inferences about his likely positions on constitutional issues, especially his willingness to protect freedom of religion and to rein in unaccountable executive agencies. To both fearful opponents and hopeful supporters, it seems altogether natural—indeed, unavoidable—to use information about a nominee’s convictions to predict positions he or she will take as a sitting justice.
There is no denying that such predictions can, at least to some degree, be sophisticated and useful. Conservatives in particular have spent decades refining their methods for evaluating potential nominees’ political and legal philosophies, and these efforts have had some of the intended effect on the Court’s decision-making.
This single-minded emphasis on each nominee’s beliefs, positions, and philosophy, however, fails to take account of strong and disturbing historical evidence about institutional considerations that powerfully influence voting patterns once an individual has been elevated to the Court. In the modern era, this evidence began to accumulate in the early 1970s with President Nixon’s frontal assault on the activism of the Warren Court. Republican appointees soon constituted a majority of the justices, and that majority has been maintained ever since except for the short period between the death of Antonin Scalia and the confirmation of Neil Gorsuch.
Yet in the face of dire predictions from liberal politicians and academics, over the past four and a half decades the conservative Court has not reversed any of the hallmark decisions of the Warren era, despite the fact that when announced, each of these revolutionary decisions was deeply controversial politically and legally. To the contrary, the Court began a radical expansion of the desegregation principle laid out in 1954 in Brown v. Board of Education. It gradually built on the one-person/one-vote rule of Baker v. Carr (1962), as well as on the dramatic restructuring of American defamation law begun in New York Times v. Sullivan (1964). In 2000, Chief Justice William Rehnquist himself authored an opinion reaffirming the profoundly questionable constitutional requirement that criminal suspects held in custody be read a list of warnings before being interrogated, a requirement first imposed by the Warren Court in Miranda v. Arizona (1966).
Moreover, while numerically dominated by Republican appointees under three successive Republican-appointed chief justices, the post-Warren Court has established its own astonishing record of activist decisions. The three most prominent examples are the creation in 1973 of a constitutional right to abortion, the gradual establishment of an extreme prohibition against the use of traditional gender distinctions, and the recent announcement of a right to same-sex marriage. These decisions, however, are only the tip of the iceberg. Liberals are still incensed, for example, by the novel and dubious legal explanations used to justify the Court’s intervention in the Florida recount during the 2000 presidential election.
The Court’s full record during recent decades contains much to infuriate both the left and the right. There is the decision to treat campaign contributions and expenditures as protected speech as well as the establishment of gun ownership as a fundamental right. There also is the long line of decisions preventing regulation of harmful forms of expression like public profanity, commercial depictions of animal cruelty, and violent video games sold to minors. There is as well the Court’s ambitious campaign to protect us against the establishment of an official church by proscribing a wide range of public displays of religiosity, including, for example, student-led prayers at high school football games. And the list, as they say, goes on—and on.
Whatever observers think of particular decisions, it is abundantly clear that the one thing we have not had for the last four and a half decades is a restrained Court. Many plausible explanations have been offered. They include the moral and intellectual consequences of class identification, the biases inculcated by elite legal education, and the insidious influence of the national media and other opinion makers. But the most widely offered explanation has been that, for various reasons, nominees have not been adequately vetted. Accordingly, the vetting process has come to be characterized by ever-intensifying efforts to subject any indicators of potential nominees’ political and philosophical beliefs to microscopic scrutiny.
Oddly, through the years a different and unsettling explanation for the Court’s surprising record has been openly offered by the justices themselves—and in their judicial opinions no less. This explanation is captured by an unfashionably patriarchal word: statesmanship. In short, the justices openly declare their aspiration to fill the high role of statesman, a status surely more inspiring than the pedestrian role of a mere lawyer working within established legal conventions.
The place to go to see judicial statesmanship in full flower is the 1992 opinion in Planned Parenthood v. Casey, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter and joined by two other appointees of Republican presidents (Harry Blackmun and John Paul Stevens). Casey, of course, is the decision in which, rather than overruling Roe v. Wade as many had hoped and others feared, the Court reaffirmed the constitutional right to abortion.
The Casey opinion does contain a short and (it must be said) perfunctory explanation for why Roe had been legally justified in finding a right to abortion in the Constitution. Even this explanation acknowledges the “weight of the arguments . . . that Roe should be overruled.” With this brief nod to the lawyer’s task, the justices move on to a long and impassioned discussion of the high-minded matters of state that require the Court to adhere to its prior ruling.
The essence of this discussion is the claim that overruling Roe would cause the public to believe that the Court was surrendering “to political pressure.” This, in turn, would damage “the country’s understanding of itself.” In fact, it would alter the “character of a Nation of people who aspire to live according to the rule of law.” And, finally, the justices declare without embarrassment, “If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.”
Needless to say, such pronouncements take the justices into rather elevated terrain, far removed from the sorts of considerations that constitute the workaday world of the legally trained. Every element of the justices’ explanation depends on highly controversial and speculative empirical assumptions that go far beyond anything in the record before the Court. How could the justices claim to know, for example, that the American people would see the Court as political if they believed it had yielded to public dissatisfaction with Roe but would not do so if they believed it had affirmed Roe because of the justices’ deep resentment of that dissatisfaction?
More fundamentally, other than the rather human weakness for self-importance, what supports the claim that the American people’s sense of their constitutional ideals depends so utterly on their view of the Supreme Court, rather than, say, their own rich political history? What the Court’s impassioned rhetoric makes clear is that the role of statesman requires the justices to subordinate normal legal reasoning and standards.
Casey is rare in coming so close to a blunt acknowledgement that for someone responsible for high matters of state, lawfulness can require the abandonment of law. But the same paradox can be seen in a more subdued form in other cases in which conservative justices declined to overrule constitutionally dubious Warren Court landmarks. For instance, in explaining the Court’s determination to affirm Miranda v. Arizona, Chief Justice Rehnquist wrote that whether right or wrong legally, the judicially imposed warnings had become “embedded” in police practices and were now a part “of the national culture.” The squinty-eyed legalist would respond, “If Miranda was lawless, why should a judge care if it is widely accepted?”
The ascendancy of statesmanship over legality can also be seen in the many surprisingly audacious constitutional initiatives undertaken by the post-Warren Court. In an early example, the respected, careful, and conservative jurist John Marshall Harlan abandoned any serious effort to understand the original meaning of the free speech clause. In a landmark decision establishing the right to use profanity in public, Cohen v. California (1971), Harlan’s reasoning rested on speculations about how little social benefit would ensue from efforts to prevent “verbal cacophony” along with sweeping claims about the threat that such efforts would pose to “the premise of individual dignity and choice upon which our political system rests.”
Examples of this kind are legion. It should be sufficient here to mention what is probably the most extravagant of the justices’ claims to higher knowledge. The Court has repeatedly claimed for itself the capacity to determine which particular freedoms are (or are not) essential for individuals, as Kennedy wrote in Casey, “to define [their] own concept of existence, of meaning, of the universe, and of the mystery of human life.” These are brave words, indeed; their implementation would require knowledge that goes well past legal training, past law, past psychology and philosophy—into a vision of statesmanship that borders on religious prophecy.
To give some indication of how far conservative jurists have gone in accepting the idea that the role of the Supreme Court justice transcends conventional standards of legality is not necessarily to condemn all deviations from strict standards of legalism. Serious thinkers on the right—from the legal scholar Richard Epstein to the late Justice Antonin Scalia—have endorsed the Court’s consideration of the highest matters of state in at least certain circumstances.
Indeed, it is arguable that the most revered decision in American constitutional law, Marbury v. Madison, decided in 1803, rested on Chief Justice John Marshall’s statesmanlike decision to give a tortured interpretation to the statute on which his court’s jurisdiction rested. He could then establish the authority of the Court to enforce the Constitution while avoiding a confrontation with the Jefferson administration. It is commonly speculated that in our own time, Chief Justice John Roberts gave a similarly tortured interpretation to the Affordable Care Act in order to keep the Court from injecting itself into one of the major policy disputes of our time.
Statesmanlike claims and speculations by the justices are so common and so deeply ingrained in American jurisprudence that they are assumed by many to be a normal and desirable aspect of wise judicial decision-making. And in fact a narrow legalist could sometimes do great harm to individuals and to the nation itself.
Perhaps John Marshall was right to think that the fragile new nation would not survive a major confrontation between the executive and judicial branches. Perhaps John Roberts was right to believe that our modern political system would be healthier if the Court avoided involvement in the health-care debate. It may even be, as William Rehnquist suggested in All the Laws but One (1998) that Abraham Lincoln was correct to suspend certain constitutional protections in order to ensure “the very survival of the Union.”
But the possibility of wise statesmanship should not blind us to the risks. The chief danger arises when, unlike Lincoln, we confuse statesmanship with legality. Legal decision-making is a complex yet essentially humble task. It is, or should be, confined by conventional understandings about strict attention to legal authorities and a contested, developed factual record. Its object is to fairly resolve specific disputes by enforcing the law.
In American constitutional law, this form of legal decision-making has been so thoroughly merged with aspirations to statesmanship that it is difficult to notice the essential tension between the two. Unlike Lincoln, we have convinced ourselves that transcending the law for some higher purpose—such as saving the republic—is somehow indistinguishable from enforcing the law.
Consider the controversy surrounding the behavior of James Comey, Peter Strzok, Bruce Ohr, and other assorted high officials of the FBI and Justice Department during and after the last presidential election. It is easy to imagine that their apparent efforts to block and then undermine President Trump’s presidency might have been motivated by a sincere desire to save the republic from a man they regarded as uniquely dangerous to our institutions. If so, and if the fear turns out to have been well-founded, using the Department of Justice to affect the outcome of a presidential election could be described as having been bold, well-intentioned, even heroic. But it is not the rule of law.
Those who are rightly concerned about the unhealthy role that the Supreme Court has come to play in American political life—those who are worried about our vanishing understanding of the rule of law—should, of course, try to discover if Brett Kavanaugh appreciates the difference between a judge and a statesman, and why that difference matters. But they should recognize that such inquiries are likely to be ineffectual. When nominee John Roberts famously compared the role of a judge to an umpire calling balls and strikes, he was probably honestly stating what for him is a truism. The source of the problem is not in limited or dishonest disclosure. The source of the problem is fundamentally institutional and even cultural.
The Supreme Court is to Americans the apex and symbol of the rule of law. The Court itself, however, has long insisted on merging the idea of the rule of law with ambitious moral and political aspirations, even including preserving the nation itself. This institutional self-definition is entirely understandable. Who, given high responsibility, would not want to exercise it with great wisdom and benevolence? The perspective of a Supreme Court justice is not unique in encouraging audacious high-mindedness. But, paradoxically, it is unique in entrenching the inability to distinguish statesmanship from legality.
