Not Your Father’s Supreme Court

By | 2018-07-10T23:59:28+00:00 July 10th, 2018|
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President Trump on Monday announced that he was appointing D.C. Circuit Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court. Not since his trip down the escalator to announce he was running for president has Donald Trump uttered more significant words.

Almost exactly a year and a half ago, I wrote the following for American Greatness: “The day after a Supreme Court nomination announcement is like Christmas morning for court watchers. It’s even more special, really, because we only get a Supreme Court nomination every five years or so.”

As it turns out, we got two nominations in the first two years of President Trump’s first term. This appointment is by far the more significant one, both as a political and a jurisprudential matter.

Last year, President Trump appointed Neil Gorsuch to replace Justice Scalia, who, by most measures, was one of the most conservative justices on the high court. And Scalia was certainly the most outspoken Justice in endorsing originalism as a constitutional theory of interpretation. Although Neil Gorsuch does not appear to be quite as conservative as Scalia, and is certainly not as outspoken in endorsing originalism, he does not differ significantly on either point.

The Kavanaugh nomination is different, however, because in this appointment, President Trump is replacing Anthony Kennedy, who was always a mystery, both politically and jurisprudentially.

Kennedy, it is important to remember, was nominated in 1987 by President Reagan only because Judge Robert Bork had not been confirmed. Kennedy’s 30-year career on the Supreme Court meandered—steering conservative on legal issues relating to economic liberties, but liberal on issues relating to social and cultural matters. So Kennedy was a reliable conservative vote, for example, in cases involving campaign finance, the Affordable Care Act, and the preemption of state economic regulation. But he was a reliable liberal vote in cases involving abortion, sexuality, and race relations.

Put simply, Kennedy represented the libertarian wing of legal conservatism.

As I have written elsewhere, this is not the future of the American Right. The election of Donald Trump was historic, monumentally so, but not so much because of Trump himself. It was historic because of what Trump represents: a shift in the electorate’s willingness to eschew the encrusted ideological strictures of past generations, particularly when it comes to economic matters.

As Trump said more than a year before the election, it was not really about him: “This is a movement,” he proclaimed.

And indeed it is. It is a movement that rejects the foreign policies of both parties—policies that have wrought death and destruction, principally in Middle America. It is a movement that rejects the trade policies of both parties—policies that have hollowed out the middle class, leaving American cities with the contrasts of opulent high-rises and crumbling housing projects. It is a movement that rejects the immigration policies of both parties—policies that provide cheap labor at the expense of cultural conflict and community dissolution.

So when Anthony Kennedy announced his retirement, my only question was the following: Which of Trump’s candidates displayed the greatest promise in advancing this agenda?

The answer was easy: Brett Kavanaugh.

As I wrote for Real Clear Politics last week, Kavanaugh was the right pick, because the other candidates, though strong conservatives, “have thin or questionable records on the defining issue of the 2016 election—whether American sovereignty, and the forgotten American worker, will once again play a critical role in our polity.”

Brett Kavanaugh was the only one of Trump’s candidates who has repeatedly interpreted American statutory and constitutional law against the background of our national sovereignty. In case after case, Judge Kavanaugh has sought to understand our immigration law, trade regulations, and constitutional guarantees in light of how they affect average Americans.

This is what I have called “America first originalism”—a process of understanding our most fundamental law according to the ways and traditions of our lived experiences, not the abstractions and platitudes of party slogans.

What does this say about how Kavanaugh will vote on hot-button issues? Predicting how a lower court judge would decide cases if appointed to the Supreme Court is a fool’s errand. I can’t say how Kavanaugh will rule on abortion. I can’t say how Kavanaugh will interpret the Second Amendment.

But I can say that Kavanaugh will be more grounded to tradition than his predecessor. And he may be less wedded to interpretive strictures than Scalia and Gorsuch. As Kavanaugh proclaimed last night in accepting the nomination, “a judge must interpret the constitution as written, informed by history, and tradition, and precedent.” This is precisely what led me to say that Kavanaugh would be the best pick for Trump’s constitutional vision.

That is not to say that Kavanaugh will be the embodiment of Trump’s political or legal vision. Heck, Trump is not the embodiment of Trump’s vision. But the election of President Trump and the nomination of Judge Kavanaugh are perhaps the two biggest signs in the past two years of where the Republican Party and American conservatism are heading.

In short, this is not your father’s (or George Will’s) Republican Party. And soon this may not be your father’s Supreme Court, either.

Photo credit:  Tasos Katopodis/Getty Images

About the Author:

Jesse Merriam
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.