My intuition is that the Democrats are not panicking enough about the pending confirmation of Judge Brett Kavanaugh to the United States Supreme Court. They’ve been so busy ginning up their base with claims that Kavanaugh will spell the end of abortion and gay marriage that they haven’t focused on the more likely, and larger, impacts of an originalist court. Trump’s court will change America.
Kavanaugh is most robust in defending the Constitution on foundational questions, not the headline grabbers. This is good news.
An originalist court will bring needed changes to everyday life, liberty and the pursuit of happiness. We’ve already seen several dramatic victories when Justice Neil Gorsuch joined the court last term. This was a foretaste of far-reaching changes to come. Reinstating constitutional safeguards against government power will be significant for religious freedom, free speech, curtailing racial preferences, unleashing free enterprise, and stopping unaccountable government.
In Justice Anthony Kennedy’s last term, when he sided with the conservative justices, we saw that a faithful reading of the Constitution can be revolutionary. In Janus v. AFSCME, government workers were freed from compulsory union fees. Unions spent almost $2 billion on lobbying and campaign contributions in 2016, raised with those compulsory fees. Janus may cut the cycle of Democrat politicians voting for ruinous salaries and pensions, which bankrupt local and state government, as the cost of union support. And it set an important legal precedent for undoing poor court decisions from the past.
The Masterpiece Cakeshop ruling in favor of a Christian baker targeted by gay rights activists, trying to force him to bake a gay wedding cake, was an important victory for free exercise of religion. Even liberal Justice Kagan, who was furious at what she called “weaponizing the First Amendment” in the Janus case, joined the consensus defending the First Amendment in the Masterpiece case which was decided on a 7-2 majority.
Breaking the Grip of Stare Decisis and Chevron Deference
Is my intuition right about the game-changing power of honoring our Constitution? To answer this question, I sought out five of the best originalist legal minds in the country. In one interview after another, these judges and Supreme Court lawyers agreed about the importance of President Trump selecting originalist justices. The two legal mainstays that allow the Deep State to continue its power grab unchecked are about to be slowly but methodically dismantled.
These much-misused legal doctrines are stare decisis and Chevron deference. In the 20th century, stare decisis and the Chevron deference enabled the explosive expansion of the executive bureaucracy and of government power over all areas of life and the economy. These technical terms will never become household words, but changing them will affect every household in America.
Stare decisis means not overturning precedent, even if the precedent was wrongly decided and unconstitutional. It is often quoted by liberals to argue that Roe v. Wade is sacrosanct.
Chevron deference is a doctrine that says the courts should defer to the executive branch agencies, allowing them to write regulations and policy that carry the force of law, with only limited judicial review. It delegates interpreting laws to bureaucrats, which deprive citizens of recourse to court review. This gives a green light to executive overreach. For example, the Obama administration did not have to bother trying to pass a transgender bathroom law. A government bureaucrat merely reinterpreted Title IX of the Civil Rights Act to define unisex bathrooms as discriminatory based on newly invented gender rights.
It has been almost a century since progressives on the Supreme Court radically transformed America’s legal traditions. We will not see abrupt and rapid change, as when progressives legislated from the bench in Roe v Wade or dictating gay marriage. The Trump court will be the beginning of a new era of slower, case by case progress back to constitutional limits on government power.
Jim Burling, Pacific Legal Foundation
First, I talked with Jim Burling, vice president of litigation at the Pacific Legal Foundation, which has 10 wins and only two losses before the Supreme Court. PLF has been a powerhouse for decades defending property rights, notably against eminent domain and the EPA. Then some interesting things happened. One was in the realm of national politics, and the other was an intellectually electrifying book that created a seminal change in their thinking about defending liberty.
The political change began with President Obama’s big government agenda, and the voters’ repudiation of him two years later, resulting in his loss of Congress. Unwilling to let his power be curbed by our constitutional separation of powers, Obama embarked on an imperial presidency. He put the administrative state on overdrive. He ruled through executive orders and unaccountable bureaucratic regulations, often brazenly illegal, such as funneling half a billion dollars of bank fines to private radical organizations, often flouting constitutional limits, for example, turning the Clean Air Act into a war on coal.
PLF realized that their defense of property rights faced insurmountable odds against the extra-legal deep state. A 2014 book by Philip Hamburger, Is the Administrative State Unlawful? (a shorter version, The Administrative Threat is a good introduction) galvanized them to shift their approach to directly attack deep state prerogatives unlawfully delegated by the courts through Chevron deference.
Hamburger’s historical deep dive into 17th-century England, the original showdown between Parliament and the absolutist powers of the King, showed how those hard-won constitutional principles applied to the present-day battle with the bureaucratic state. The lawyers at PLF realized they had a blueprint in their hands they could use to roll back the deep state’s self-anointed kingly powers. Civil servants have no right to define law, judge compliance, or apply penalties. Bureaucrats in America now exercise the constitutionally delegated powers that belong to the legislature and the courts; powers that the kings of England were forced to relinquish centuries ago.
Jim Burling believes we are at one of those seminal moments in intellectual history, when clear thinking unleashes profound forces for change. PLF went through the Hamburger book chapter by chapter, translating the historical battles into current constitutional freedom battles that could be won. Their new goal is to claw back the deformation of progressive rulings and restore limits on bureaucratic power.
In Justice Gorsuch’s first court session, PLF won two cases, one on free speech and one safeguarding the right to sue the EPA in federal court, a right trampled by the EPA’s infamous Obama era “waters of the United States” rule, by which the federal government seized jurisdiction over every piece of private property in America that has a spring puddle or an irrigation ditch, and gave homeowners only 120 days to seek redress in court.
The night before President Trump’s election, Burling couldn’t sleep. He was thinking about the coming liberal court under Hillary Clinton’s administration. The Pacific Legal Foundation would have to stop looking to the Supreme Court. As the returns on election night came in, Burling thought, “We’re not going to lose the court after all.”
Burling believes President Trump has done a spectacular job with his court appointments. He foresees more victories against the Chevron doctrine, the legal power tool of the deep state.
His long-term dream is to return the Commerce Clause to regulating only true interstate commerce, not all economic activity in the country. As a young law student, he was taught that because of precedent economic freedom was gone forever. Now rolling back government intrusion that stifles free enterprise seems like a viable goal.
Burling expects Judge Kavanaugh to be faithful to the actual language of statutes and the Constitution. Republican nominees in the past were often chosen based on political favors owed, such as John Sununu’s successful lobbying for Justice David Souter simply because he was from New Hampshire, despite his liberal record. President Trump was serious about seeking out the best originalist judges in the country. There is not a bad choice among them.
Will the new court be a gamechanger? There is reason for hope, according to Burling, that the court will be more robust in overturning bad court precedents, but he foresees only incremental change, given Chief Justice Robert’s predilection for narrow rulings. Bigger changes will await another Trump nominee.
Jeremy Tedesco, Alliance Defending Freedom
The day after Kavanaugh’s nomination to the Supreme Court, I spoke with Alliance Defending Freedom (ADF) senior counsel Jeremy Tedesco, who successfully argued the Masterpiece Cakeshop case during Justice Kennedy’s final term on the court. ADF lost the case in every court all the way up to the Supreme Court, where the group won a landmark victory, 7-2.
ADF is the country’s premier law firm defending the sanctity of life and religious liberty. They have taken nine cases to the Supreme Court in the last seven years and won every single time. ADF can be proud of their Masterpiece win, which was based on the free exercise of religion.
Tedesco is looking forward to having, not a conservative majority, but an originalist one. To truly protect the First Amendment, we need justices who interpret according to the text and original intent of the constitution. With Justice Kavanaugh replacing Justice Kennedy, that dream has a chance of becoming reality.
I asked Tedesco to describe his “dream case” to bring before a Supreme Court with Gorsuch and Kavanaugh on board. His answer focused on the First Amendment. “In Masterpiece, the court did not reach the ultimate free speech question: whether the state can compel creative professionals to create custom artistic expression that violates their beliefs. In Masterpiece, the court reserved that question for future cases.”
ADF has several open cases working their way through lower courts, putting “stepping stones in place,” that Tedesco hopes will lead to another major free speech victory at the Supreme Court.
Kavanaugh’s record on freedom of speech and religion, as analyzed by ADF’s CEO, Michael Farris, is encouraging. Kavanaugh dissented in an Obamacare case that ruled pro-life organizations must give free contraception and abortifacients to their employees. Judge Kavanaugh argued that the religious believer, not a government regulator, has the right to decide the ethics of their own behavior.
When “the Government requires someone (under threat of incurring monetary sanctions or punishment, or of having a benefit denied) to act or to refrain from acting in violation of his or her sincere religious beliefs,” Kavanaugh wrote, “that constitutes a substantial burden on the exercise of religion. . . . That is precisely what happened here.”
In another case, an atheist claimed that the prayers during the presidential inauguration violated the Establishment Clause of the First Amendment. The D.C. Circuit Court of Appeals refused to take the case, ruling the plaintiff could not show a concrete injury. Kavanaugh dissented. He would have heard the case and ruled against the plaintiff, because of longstanding precedent and widespread use of “so help me God” in official oaths.
Kavanaugh is a strong judicial advocate against bureaucratic overreach. He ruled in an FCC case that the court should not defer to the executive branch legislating through regulations. He wrote, “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
Breaking free of the Chevron Doctrine forces responsibility on Congress, which is accountable to voters. It opens up many opportunities to ADF’s defense of the American freedom.
Judge Clint Bolick, Arizona Supreme Court
My next interview was with Clint Bolick, a justice on the Arizona Supreme Court. Judge Bolick worked previously at the Phoenix-based Goldwater Institute, where he was vice president of litigation. He’s a Supreme Court lawyer and a protegee and friend of Justice Clarence Thomas, dating back to their work together at the Equal Employment Opportunity Commission in the 1980s. Bolick also co-founded the Institute for Justice, which litigates for mom and pop businesses fighting government regulations, school choice, property rights, and free speech. He is one of the country’s giants in defense of individual liberty and the right to engage in free enterprise. Bolick is an unapologetic activist in defense of the constitution.
Judge Bolick thinks the enthusiasm about the Kavanaugh appointment on the right and the hysteria on the left are both overstated. Justice Kennedy often sided with the originalist judges. An originalist majority has been whittling away at the Commerce Clause for years, returning power to the states. That trend will not change with Kavanaugh, but it will accelerate.
The biggest change Bolick foresees is on the Chevron doctrine’s deference of the court to the administrative state. Justice Gorsuch is famous for a sweeping opinion in which he attacked Chevron directly. (Kavanaugh is widely regarded as strong in this area as well.)
Judge Bolick sees the recent Janus ruling as a roadmap for how to revisit stare decisis, with potential application to Roe v Wade and gay marriage. Janus overturned a previous Supreme Court decision in order to rule against mandatory union fees, because the fees were spent on political campaigns, and were thus coerced political speech. The court considered the reliance of the public on settled law, including the practical ramifications of overturning it, and came out in favor of overturning precedent in order to restore First Amendment rights.
I asked Judge Bolick what part of constitutional jurisprudence he would like to see revisited by the new court. His answer was quick: return economic freedom to an equal footing with our other constitutional rights. Overrule the Jim Crow-era Slaughterhouse Cases. The 14th Amendment, passed to protect freed slaves after the Civil War, had three provisions. Two are famous—equal protection and due process. The first one, just as important, was gutted by the Supreme Court’s 1873 Slaughterhouse decision and has passed away from our collective memory. It is the “privileges and immunities of citizens.”
Privileges and immunities of citizens go back in history—they were guaranteed to Christopher Columbus and the Pilgrims. They were of utmost importance to our nation’s founders and include the right to pursue a livelihood, own property, make contracts, and bear arms.
Justice Thomas is the leading proponent of bringing back constitutional protection for these economic rights. Economic freedom would do more to help black Americans than “affirmative action” and race-based preferences ever could. Onerous licensing requirements, such as requiring 2,000 hours of training to be licensed to braid hair for a living, blocks ordinary people from starting up the ladder to prosperity.
State governments take the freedom out of free enterprise, lessening people’s lives and harming the economy. The Institute for Justice is currently defending the rights of an outstanding black couple—he is a former Army Ranger and corporate project manager, she has an MBA and a successful business—who want to offer job skills classes. Under Virginia law, they must apply to state bureaucrats, pay thousands of dollars, rent classroom space and create a library, do mountains of paperwork, all just to request a license that could be refused. The case is being argued on free speech grounds, but from what Judge Bolick explained, the 14th Amendment’s privileges and immunities of citizens should give this couple direct protection of their economic enterprise.
Returning to an original, textual understanding of economic freedom is a lifetime dream for Bolick. He believes an originalist court might take it on.
Robert Alt, The Buckeye Institute
Next, I had the privilege of talking with Robert Alt, a highly respected originalist legal expert, mountain climber, Iraq War correspondent, and hard-working president of the Buckeye Institute, a think tank that focuses on economic freedom. Buckeye last term filed an amicus brief in the Janus lawsuit. Alt was upbeat after the 5-4 victory in that case, which freed government employees from having to pay a fee to a union against their will.
“The liberty of the individual was upheld,” Alt told me. Janus was all about consent. It offers a model of how to reconcile a previous wrong decision with stare decisis, the judicial norm of respecting settled law. Stare decisis should distinguish between errors of interpreting a law passed by Congress (which the other branches can correct more easily) and errors in interpreting the Constitution itself (which are nearly impossible for the other branches to correct). The tradition that legal stability requires the court mechanically to maintain constitutional errors is wrong. When a Supreme Court error deprives the individual of constitutional rights, in this case of freedom of speech and association, it should be corrected by the court.
Janus was a vital win for originalists. It overturned a 41-year-old precedent, affirming the responsibility of the Supreme Court to undo poor decisions of past progressive court rulings. It applied the First Amendment to prevent compulsory speech, in this case, being compelled financially to support a union’s political lobbying.
Politically, Janus is of paramount significance. Rush Limbaugh calls collusion with public unions a Democrat money laundering scheme. Unions spent $1.7 billion on politics in 2016, mostly for Democrats. Democrat politicians bankrupt cities and states to pay for unrealistic salaries and benefits demanded by government unions. In exchange, government unions skim off some of that taxpayer largess through compulsory fees and funnel it back into Democrat party election coffers. It is not just worker’s hard-earned money, but all our hard-earned tax money being collected by unions and passed along to the Democratic Party.
We are talking about big bucks, election-changing bucks. According to Alt, some rural teachers in Ohio pay up to $1,200 in union dues. There are 5 million union members in compulsory union states, and if 20 percent opt out, unions stand to lose a significant amount of their political war chest.
The leftist Nation magazine analyzed the impact of Wisconsin and Michigan becoming “right to work” states. Both states went for Trump, the first time they went Republican since the 1980s. The loss of union money, used for getting out the Democrat vote, resulted in a 3.5 percent swing in favor of Republicans, enough to change the outcome of the election. To say that Democrats are concerned would be an understatement.
During oral arguments, Justice Kennedy asked, wouldn’t the unions lose power if you lose this case? When the union lawyers answered yes, their goose was cooked. Kennedy saw this as the crux of the case: unions’ collective bargaining speech was inherently political; hence workers were being compelled to take part in political speech.
Addressing the wider question of how a more originalist court with a second Trump Justice will change America, Robert Alt foresees a rollback of the administrative state. We have had a dereliction of duty both by Congress and the Courts, both happy to pass power to unaccountable bureaucrats in the executive branch. A stronger originalist court will be willing to limit Chevron deference, which allows unelected administrators to rule through regulation.
The pace and reach of bureaucrats issuing regulations are out of control. Robert Alt oversaw a project to catalog all federal criminal laws and count them for the first time. There are 4,500 federal criminal laws spread throughout the law code.
How many criminal federal regulations are there? No one knows for sure. The best guess comes from the work of Professor John Coffee at Columbia Law School. He estimates there are 300,000 federal regulations that carry criminal penalties that were never approved by Congress.
President Trump could be the pioneer who forces Congress and the Supreme Court to do their jobs and take power back from the administrative state. So far, the liberal judges are not budging. They apply Chevron deference to maintain outcomes they like, but not to respect Trump’s lawful immigration policy.
Alt’s dream for an originalist court? Like Clint Bolick, he would revisit Slaughterhouse. That series of Jim Crow-era decisions crushed newly freed slaves’ economic liberty and stripped all Americans of protection against state laws that infringe on the “privileges and immunities of citizens.” The loss of these fundamental rights became settled law and is not even taught to young lawyers. The result is that economic rights are not protected from government intrusion like other safeguards in the Bill of Rights. The heavy hand of government and crony capitalism was unleashed on free enterprise: licensing laws run amok, big business welcoming burdensome regulations that they can afford to comply with, but which crush new competitors. And we mustn’t forget that privileges and immunities also guarantee the right to bear arms across the states.
Alt does not see the Supreme Court suddenly becoming a strongly originalist institution, striking down laws to protect individual rights. Chief Justice Roberts is a “minimalist” who believes on principle that the High Court should have a modest role. The irony, as we saw in his Obamacare ruling, is that Justice Roberts exerted huge judicial power in the name of limiting judicial power. He created his own remedy to save Obamacare and avoid ruling it unconstitutional.
Pete Hutchison, Landmark Legal Foundation
My last conversation was with Pete Hutchison, who succeeded radio talk show host Mark Levin as president of the Landmark Legal Foundation. Landmark’s mission is to fight the administrative state’s abuse of power. Naturally, Hutchison is pleased with Trump’s focus on originalist judges. An originalist Supreme Court justice strives to apply the law dispassionately, with no political agenda. There isn’t a single liberal judge who would go against the Democratic agenda, Hutchison told me, because ignoring outcomes and focusing on rule of law doesn’t fit their judicial approach.
Hutchison minced no words on Judge Kavanaugh. “He is brilliant and extremely well qualified,” he said. “But I think the Left should be celebrating. He will set the meat slicer on its thinnest setting in cases like that dealing with Obamacare.”
Landmark filed one of only two amicus briefs in the 2012 Obamacare case that addressed the question of whether the tax penalty could be considered a constitutional tax. “We went through the Constitution’s requirements and concluded that the penalty was not a constitutional tax,” Hutchison explained. “Kavanaugh embraced the tax notion . . . It was a thinner slice than Roberts in a way, as he would have held the case another two or three years.”
But Hutchison thinks Kavanaugh “will be great on Chevron deference, which is critical, and on the vast majority of other matters.”
He adds that Trump’s next pick, if it comes from the president’s famous list of candidates, is “very likely to be the big one if the Republicans can hold the Senate” in the fall. “I can only imagine the collective freak-out should Judge [Amy] Barrett get the next nod!”
Hutchison is optimistic that with Gorsuch and Kavanaugh, the new Supreme Court will block the Left from using “disparate impact” as a legal theory to advance federally mandated racial quotas in employment, housing, education, and indeed, every area of life where you can count people by race. Disparate impact is dangerous and undoing it perhaps could be the most important benefit of the Trump presidency from a liberty standpoint.
Like the other originalist lawyers and judges with whom I spoke, Hutchison sees the Chevron deference of the courts to executive branch bureaucrats as teetering, possibly to fall before a more originalist court. Congress purposely delegates authority to agencies by writing vague statutory schemes to avoid voter scrutiny, even though delegating legislative power to unelected officials is flatly unconstitutional. It affects every area of the law where regulations are written, absolving politicians from responsibility for anything.
An originalist court would push back and ask legislators: What authority did you delegate? What are the limits of that authority? Is this a constitutionally legitimate delegation of power? An important example is the Obama-era “Waters of the United States” rule, which the Trump Administration has sought to reverse. A lawsuit challenging this is currently working its way through the lower courts.
Hutchison thinks Justice Kagan is right to worry about that the First Amendment could serve as a sword against progressivism. The First Amendment would take on more power as a constitutional right under an originalist court. Freedom of speech, religion, and assembly would be used as legal protection against the progressive activist judges imposing a social justice agenda. We saw that happening in several important originalist victories in the court’s last term, affecting government union dues, gay marriage, and pro-life pregnancy centers. The Masterpiece decision raised the bar to a higher standard, called “strict scrutiny,” to justify the government limiting a constitutional right such as free speech or freedom of religion.
An originalist court is also likely to revisit the federal balance of power. Hutchison points to an interesting Commerce Clause case still in the lower courts, that challenges California’s animal rights mandate for chickens. California voters dictate food or fuel standards to providers from other states, without their citizens having any say so—that’s not how the federal system and representational government were meant to work. Farmers in Ohio and Iowa will be forced to heat their barns and get rid of half their chickens. Consumers across the country would pay a premium for eggs. A court that follows the meaning of the 10th Amendment reserving power to the states will give such cases a fairer hearing than in the past.
Change Is on the Way
I came away from these conversations with a new appreciation that change won’t come quickly through a more originalist court, but it will come. We’ll be heading in the right direction—the direction of limited, constitutional government, as the framers intended. The court will throw controversial questions back to the Congress and the states to decide, in protracted and impassioned political battles, where they belong. Unlike progressives ruling from the bench by fiat, we will have to work through all three branches of government—as it should be.
The court alone will not dismantle the administrative state or force government to retreat from our lives, but it is an indispensable player. Justices Gorsuch and Kavanaugh give us reason to expect more justice and less unchecked expansion of government power.
Democrats do not understand the Constitution or the love and fidelity it inspires among ordinary Trump voters. They don’t understand how many Americans want the court to fight for our constitutional safeguards against government power. Our precious American individualism, freedom, and prosperity depend upon it, in the digital age more than ever. Progressive Supreme Court justices are all about advancing the political agenda du jour and care nothing about constitutional principles. They think originalists are the same. We’re not. We revere the limits as much as the rights handed down to us as a sacred and incomparable legacy.
It is definitely time for Democrats to panic.
Photo credit: Melina Mara/The Washington Post