Friday, October 5, 2018

A Fitting Legacy For Brett Kavanaugh

With the news that Susan Collins (R-Maine) and Joe Manchin (D-W.V.) intend to vote to confirm Brett Kavanaugh to the Supreme Court tomorrow, the bitter confirmation fight appears to be nearing an end. Soon the question will be what Justice Kavanaugh will be like. What will be his legacy on the Court?

A popular meme going around in conservative circles gloats, “Every time he makes a ruling for the next 40 years, [Justice Kavanaugh] thinks about how Democrats tried to ruin his life with lies and deceit [sic].” The implication is that Kavanaugh will remember his treatment at the hands of Senate Democrats and will let personal emotions affect his decisions. I sincerely hope that this is not the case. If I thought that this meme described Kavanaugh’s legal philosophy, I would have to oppose his confirmation. As a conservative and a constitutionalist, I would prefer that Justice Kavanaugh’s rulings were based on the Constitution and the written text of other laws rather than sour grapes.

Unfortunately for America, many Republicans don’t seem to want an objective justice in the mold of Scalia. Like liberal Democrats, they want a justice who gets his legal reasoning from the “mystical aphorisms of the fortune cookie.” The difference is that they want a justice with a right-wing fortune cookie instead of a left-wing one.

This outlook is evident from a recent case in which Neal Gorsuch ruled against the Trump Administration on an immigration case. Never mind that Trump’s Department of Justice was trying to twist the law to make it say something that Congress never intended. Never mind that Gorsuch ruled the same way that Scalia did. He’s our justice, he should rule for us was the reaction from most Republicans.

My fervent hope for Justice Kavanaugh is that he can put the bitterness of his confirmation behind him and rule on the merits of each case and the law as it is written. I don’t want to see another judicial activist seated on the Court, even if I agree with that activist most of the time.

The best legacy that I can imagine for Justice Kavanaugh is one of restraint. The Court that includes Kavanaugh should be very hesitant to make rulings that are based on the whims of the justices rather than the laws that were passed by Congress. Conservative elites don’t know what is best for every American any more than liberal elites do.

Kavanaugh’s confirmation was so acrimonious in large part because the Supreme Court’s importance has become outsized. The Founders never intended for nine people to make sweeping rulings that fundamentally change the country without input from voters, but that is where we are today. When Congress can’t pass a law, activists look the courts to pass it from the bench. I hope that a constitutionalist majority on the Supreme Court will help to change that.

If the Court restrains itself from activism then Congress will return to a more prominent position in the federal government and will have to do its job of passing laws. If activists don’t look to the Court to make laws then the importance of confirmation hearings will wane. The Court will become more objective and less controversial.

In the final analysis, if Brett Kavanaugh does what I hope he will do as a justice, the Supreme Court will be a very different institution that will have far less impact on American life than has been the case for the past few decades. That would be a fitting legacy for Brett Kavanaugh.

Originally published on The Resurgent

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