Brett Kavanaugh is an originalist in the mold of Antonin Scalia or Clarence Thomas. Originalism is one of the main reasons the Federalist Society approved him for its shortlist of judges and why the National Review endorsed him: he has “repeatedly taken conservative stands and fearlessly defended his textualist and originalist philosophy.”
But what does it mean to be an originalist? Despite its name, originalism is a fairly new judicial philosophy, rising to prominence about 30 years ago. It has plenty of critics, and for good reason, but rarely does an originalist judge demonstrate the hypocrisy of originalism as completely as Brett Kavanaugh did in a 2010 opinion involving atheists suing Chief Justice John Roberts over presidential inaugurations. To understand how hypocritical that opinion was, we first have to understand what it means to be an originalist.
What does it mean that Kavanaugh claims to be an originalist?
Originalist judges claim they are just sticking to the dry text of the Constitution, which doesn’t change except through a stringent amendment process. They claim to define the words in that text as the framers of the Constitution would have defined them at the time. In their mind, judges who don’t follow this philosophy are activists, legislating from the bench and harming our constitutional system.
Critics argue that originalists use this philosophy only when the outcome suits their conservative agenda and that originalists are no different than other judges; they just claim to be walking the high road. Indeed, originalism has a holier-than-thou flavor to it. It suggests that these judges only look at the Constitution while other judges inject their personal preferences into cases. Originalists are purists, everyone else is overstepping.
There are clear parallels between originalism and conservative Christianity, including purity, textualism, and sanctimony. Perhaps not coincidentally, many originalist judges are highly and conservatively religious. Scalia believed in a literal devil, Thomas is a devout and conservative Catholic, as are Roberts and Alito. Gorsuch is probably a conservative Episcopalian, a close relation to the Catholic Church. The selective reverence for text above common sense, and in some cases common decency, is perhaps the strongest parallel. But so is the element of heresy. Originalist judges tend to treat other judges like jurisprudential heretics.
Scalia is the original originalist. He infamously declared, “My Constitution is . . . dead.” “It’s dead, dead, dead,” he said on another occasion. It’s meaning cannot change. And, in his mind, this would lead to conclusions that might seem ludicrous but are nonetheless required: “Whatever [the framers of the Constitution] understood then is, in my view, the meaning . . . and it’s not up to me to say it really shouldn’t mean that any more.”
In an interview with NPR, Scalia illustrated the point using the Eighth Amendment’s prohibition on “cruel and unusual punishment.” For Scalia, the punishment must have been considered both unusual and cruel in 1789, when the Constitution was framed. If, at the founding, a punishment was cruel but usual or tame but rare, it’s permissible today. So, if putting people in stocks and notching the ears of the condemned was common at the time, it’s “not unconstitutional” today.
Kavanaugh is very like Scalia — and he tries to be. His comments at the nomination ceremony were meant to showcase his originalism. He declared that he would “interpret the Constitution as written, informed by history and tradition and precedent.” That “and precedent” was an add on for the larger audience. When he delivered a similar lineat Notre Dame law school in June 2016, essentially an audition to the Federalist Society for the Supreme Court and an ode to Scalia, he instead explained that judges should “[r]ead the text of the Constitution as written, mindful of history and tradition.” “Precedent” was ominously absent.
Read the full story at Patheos
