Category Archives: judicial behavior

Is Brett Kavanaugh an originalist?

If there is one thing that Kavanaugh’s critics and most ardent supports agree on, it is that he is an “originalist,” someone who interprets the Constitution according to the public understanding of it at the time of ratification (and in the case of amendments, adoption).

But there is, in fact, no evidence—at least, none I can find—that Kavanaugh considers himself an originalist. At the White House, he says only “a judge must interpret the Constitution as written, informed by history and tradition and precedent”—a standard line that could be given by anyone at all. In a video, he is asked point blank about his originalism, and he simply fails to answer. Instead, he talks about interpretation of statutes (which is not what he was asked), and only at the very end says this about the Constitution: “you start with the text but there are whole bodies of precedent on all of these areas or most of all of these areas of constitutional interpretation.” Not much of answer, and certainly not a ringing endorsement of originalism.

In fact, in his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.

(For people who don’t follow legal debates, a “textualist” is someone who, when interpreting statutes, places primary weight on the normal meanings of the words, rather than on legislative history, the purpose of the statute, public policy, etc. A textualist is not necessarily an originalist, indeed, the two ideas are in tension, as the originalist tends to fall back on constitutional purposes as reflected in the contemporary public debate because the constitutional text is so often vague.)

What has Kavanaugh (as opposed to his supporters and critics) said on the topic? In his judicial opinions, next to nothing. He has cited The Federalist Papers, a favorite of originalists, a few times. But I haven’t found an opinion in which he engages in serious originalist analysis. To be sure, as a Court of Appeals judge, opportunities for doing so would be rare, but it is still surprising that an originalist wouldn’t take the opportunity, in a concurrence or dissent, to make originalist arguments in favor of changing doctrines that he believes the Supreme Court has gotten wrong. Kavanaugh, who has had some success in influencing the Supreme Court, would have been in an ideal position to do this.

Kavanaugh has discussed originalism in two lectures he published in the Notre Dame Law Review. They are:

Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907 (2014)

Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017)

The articles make an interesting pair. In the 2014 lecture, Kavanaugh takes a Hugo Black-like stance on the Constitution, arguing that “one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text.” He then discusses a few separation-of-powers cases which, he claims, were resolved entirely by the constitutional text. He admits that some clauses of the Constitution (“due process,” “equal protection”) are hard to parse. “But in far fewer places than one would think.” Thus, he argues a “textualist” approach to the Constitution is the best one. Whether or not he thinks this is the same as originalism is not clear. Perhaps you think it might be, but this is not the end of the story.

By 2017, Kavanaugh seems to have had second thoughts. In truth, a great many separation-of-powers cases were not decided on textualist grounds; scholars have often scratched their heads about why the Court sometimes uses a kind of textualist approach (the cases that Kavanaugh discussed) and sometimes not (cases he did not mention). Maybe Kavanaugh realized this problem, and sought to address it head on. In the second piece, he turns his attention to the vaguer language in the Constitution. He acknowledges upfront that it is impossible to interpret them in a textualist fashion (which by now he calls “absolutist”):

No exceptions [to the First Amendment prohibition on restriction of “freedom of speech,” as applied by the Fourteenth Amendment to the states] would mean no libel laws and no defamation laws. Threats and incitements would be protected under the First Amendment. Traditional state restrictions on speech could be wiped away if the rights were absolute and incorporated such that they applied against both federal and state governments. And no one was prepared to do that, and no Justice has ever advocated such an approach, as far as I know. Indeed, even Justice Scalia—the foremost textualist and originalist—did not hold that view. No one—and I mean no one, not even Justice Black—articulates that view of the First Amendment.

So what does that mean? It means that there are exceptions to constitutional rights. But how do we determine what the exceptions are? And there it is. That’s the battleground. That’s the difficulty. That’s the threat to the rule of law as a law of rules. That’s the threat to the judge as umpire.

Kavanaugh goes on to acknowledge (unlike in his first piece) that the text of the Constitution has not determined the Supreme Court’s jurisprudence:

In all of these examples, what I want to emphasize is that the exceptions here are ultimately a product of common-law-like judging, with different Justices emphasizing different factors: history and tradition, liberty, and judicial restraint and deference to the legislature being three critical factors that compete for primacy of place in different areas of the Supreme Court’s jurisprudence articulating exceptions to constitutional rights.

So what to do? To an originalist, the answer would be plain. You throw out all the cases that depart from the original meaning. Of course, some originalists say we should give weight to precedent, but this admission is largely fatal to the originalist enterprise, or at least the version that Kavanaugh addresses, since putting weight on precedent involves the subtle questions of balance that Kavanaugh wants to avoid.

Kavanaugh’s answer? “I do not have all the answers to those problems. But we should identify and study these issues.”

Whatever he is, he’s not an originalist, at least not by self-identification. Not yet, anyway.

[Update. A correspondent drew my attention to two opinions that, he argues, shows that Kavanaugh is an originalist: the dissents in Free Enterprise Fund v. Public Co. Accounting Oversight Bd. (2008), and Heller v. District of Columbia (2011). I can see the argument that Kavanaugh’s opinion in FEF is orginalist in approach. I don’t think his analysis is correct (the founding-era understanding was that the executive should have some degree of responsibility over employees in the executive branch but was not clear how much), but that’s not the issue.  In Heller, Kavanaugh said that he was following supreme court precedent, and I wouldn’t put much weight on a footnote in which he says “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” He then cites Marbury v. Madison and Brown v. Board of Education, which I would prefer to chalk up to a bit of judicial trolling].

Gorsuch’s bizarre “frozen trucker” opinion

Many people have commented on Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board. Jed Shugerman presents a good account here. The case involved the interpretation of a law that forbids employers to fire an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The truck driver in the case had pulled over to the side of the road and was in serious danger of hypothermia because the heater in his cab had broken down. The employer ordered him to stay put until a repairman arrived. After waiting hours, the driver unhitched the trailer and drove away to warm up, then returned to meet the repairman. The employer fired him.

The majority ruled that the employer violated the statute. While the driver operated rather than “refused to operate” the vehicle, the employer clearly retaliated against the driver for refusing to follow an order that would have put his safety at risk. Gorsuch dissents:

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.

Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom. By his logic, a driver who disobeyed an order to drive his truck at an unsafe speed and instead drove it at the speed limit would not be protected by the statute. Driving is “operating,” after all. The driver’s only recourse would be to stop the vehicle immediately–perhaps to pull the key out of the ignition so he won’t “cause the vehicle to work” by pulling it over. Gorsuch is too smart to make such a boneheaded error. What gives?

A clue appears in the peroration at the end of the opinion:

The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer’s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.

Gorsuch is sending off signals to Federalist Society headquarters. He asserts, mainly in code, that he subscribes to textualism, the reigning conservative theory of interpretation. This is good to know, but it has nothing to do with the case. Even when Congress makes compromises, or rushes through drafting, or fails to anticipate every possible future contingency, it depends on courts to give a reasonable interpretation of its statutes. Otherwise, courts undermine those statutes rather than enforce them.

Does Gorsuch matter?

adlaw votes

One view is that he will be a Scalia clone or near-clone. But Gorsuch has hinted, in opinions and speeches, that he believes that Chevron was wrongly decided, and that the nondelegation doctrine should be revived. He also has, on several occasions, approvingly cited Justice Thomas’ concurring opinion in Association of American Railroads, which expresses similar sentiments. Scalia defended Chevron; Thomas criticizes it. If Gorsuch turns out to replicate Thomas rather than Scalia, this could make a difference, yes? We would now have two votes on the Court, rather than one, that firmly oppose the administrative state.

No. My friend and coauthor Lee Epstein ran the numbers, which you can see above. (Note: the data are preliminary.) Whatever their doctrinal differences, Scalia and Thomas are themselves clones in administrative law cases. Colleagues tell me that while championing Chevron, Scalia evaded Chevron deference (at least, when the regulation in question advanced liberal goals) by finding statutes to be clear that others find ambiguous. A clone of Thomas is a clone of Scalia.

The decline of supreme court deference to presidents

pres jus

The graph shows the win rate of presidents in the Supreme Court. The historical win rate was well over 60%, reaching nearly 80% during the Reagan administration. It has declined steadily since then, bottoming out at close to 50% for Obama. It is easy to predict that Trump will do even worse. A 20 year trend begs for explanation.

What could it be? Lee Epstein and I evaluate four hypotheses.

  1. Increasing ideological distance between the president and median justice? No.
  2. A Court beating back executive overreach? No.
  3. A Court engaging in overreach itself? Maybe.
  4. The rise of a specialized Supreme Court bar? Maybe.

We’ll need to do more work in order find out for sure. Selection effects are complicated. But this paper presents some initial findings.

Supreme court justices select their clerks on ideological grounds

chilton clerks

Or so it appears. The CFscore on the y-axis measures the clerk’s ideology (based on donations to political campaigns) from liberal (-2) to conservative (+2). Scalia is just an example but the trend is notable; the other justices are equally bad (or good, depending on your point of view). And it turns out that lower courts follow the pattern though not quite as strongly. From a new paper by Bonica, Chilton, Goldin, Rozema, & Sen.

How influential was Scalia, really?

I’ve read a lot of claims about Scalia’s influence over the development of the law. His fans insist that even if Scalia’s position did not always (or even usually) prevail in the major cases heard by the Court, his theories of constitutional and statutory interpretation have forced other justices and lower-court judges to write analytically tighter opinions. For reasons I’ve given elsewhere, I’m skeptical. But these things are heard to measure. Is there something measurable we can look at?

According to Jeffrey Toobin,

During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues.

If true, this seems like a damning indictment. A justice who, in insisting on the purity of his principles or perhaps in indulging in the charms of invective, gives up the opportunity to shape the law does more harm than good for his followers. To see if Toobin’s claim is true, I collected a list of “landmark cases” from Wikipedia (where else?), and asked an RA to count up the number of majority opinions written by each justice starting with Scalia’s first term in 1986, and excluding the justices who left the bench in the early 1990s. Normal empirical-research caveats apply. Here are the results:

landmark opinions

Scalia doesn’t look too bad. No surprise that the two chief justices would reserve many of the most important cases for themselves, and that Kennedy and Stevens—perennial swing-voters—would devour the lion’s share of the others. Still, in a right-leaning court Scalia hardly distinguishes himself.

Scalia has also been on the bench a lot longer than the others. Adjusting for years on the bench, one gets a more accurate view of his capacity to influence the law.

landmark opinions per year

Scalia does worse than Alito, his junior by many years, and barely surpasses Kagan, another junior who is hampered by her position on the left. Will Scalia go down in history as a justice whose ability to influence the law fell somewhere between that of Souter and O’Connor?

Are supreme court justices loyal to the president who appoints them?

justice loyalty

Yes. Lee Epstein and I report statistical results in our new paper. A justice is more likely to vote for the government when the president who appointed him is in office, than when subsequent presidents are in office–even when those subsequent presidents are of the same party (and controlling for a bunch of other things).

The figure above suggests an interesting U-shaped time trend as well. The x-axis shows the initials of justices in chronological order. The y-axis shows a measure of preference for the government under the appointing president over subsequent governments. Note that the figure excludes Obama and Bush appointees because they have not yet served under a same-party president subsequent to the one who appointed them.

King v. Burwell and ideological independence

Subject as always to confirmation bias, I’m going to interpret the votes in this case as further support for my argument that the Republican appointees are fragmenting. It’s striking that both Roberts and Kennedy joined the liberals.

partisan independence

See my earlier posts on this topic. What is the explanation? Here are a few (overlapping) possibilities:

1. Kennedy and Roberts are more ideologically moderate than the other Republicans.

2. Roberts is concerned about the legitimacy of the court.

3. Only the Republican appointees take the law seriously, and so are willing to disagree with each other. The Democratic appointees march in lockstep because they care about outcomes.

4. Sunspots; the alignment of the stars; tidal forces.