COMMENTARY: Last week, the president nominated Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit to fill the vacancy caused by the resignation of Anthony Kennedy from the Supreme Court. Sadly, but predictably, the nomination of an originalist to replace non-originalist Kennedy triggered a firestorm of criticism and generated media inquiry into Kavanaugh’s personal views on legal issues.
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Alexander J. Cotoia
The fact that we even care about the personal views of judicial nominees is proof positive that we have distorted and enlarged the function of the federal judiciary beyond anything the Framers would have recognized.
This aggrandizement is the logical consequence of contemporary jurists refusing to constrain their own authority to the text and original meaning of the law (especially the Constitution), thus usurping the legislative prerogative and robbing the people of the right to democratic self-governance.
Originalism and textualism have deep historical antecedents. As Antonin Scalia and Bryan Garner note in “Reading Law: The Interpretation of Legal Texts,” as early as 1427, the Scottish Parliament made it an offense for counsel to argue anything other than the original meaning of statutes by declaring “that naine interpreit the Kingis statutes wrangeouslie.” Fidelity to text and meaning was echoed by legal giants like Coke, Locke and Blackstone and firmly transplanted into American jurisprudence at the time of the Founding — so much so that James Madison, an architect of the Constitution and author of the Bill of Rights, declared that the meaning of the Constitution, like any other law, should be “fixed” and “known.”
The drift away from originalism and textualism as judicial orthodoxy is a relatively recent development. Beginning with the Supreme Court’s gradual recognition of the doctrine of so-called “substantive” due process in the early to mid-Twentieth Century, judges ignored the primacy-of-text principle and began to read into the Fourteenth Amendment’s procedural guarantees judicially-created substantive rights; “rights” allegedly “so rooted in the traditions and conscience of [the American] people as to be ranked as fundamental.”
Predictably, even this modest restraint was eschewed, culminating in the Court’s 1973 Roe v. Wade decision constitutionalizing abortion; a “right” that, as then-Associate Justice William Rehnquist noted in dissent, was so little rooted in American history and tradition that a majority of states, “reflecting, after all, the majority sentiment in those States . . . had restrict[ed] [it] . . . for at least a century.” Expanding substantive due process in our own time, the Court unashamedly utilized its own “new insight” into the “nature of injustice” to fashion a constitutional right to same-sex marriage — prompting an indignant Chief Justice Roberts to ask “Just who do we think we are?”
“Just who judges think they are” should be at the forefront of the discussion as the Senate takes up the nomination of Brett Kavanaugh to a lifetime appointment on the Supreme Court. If, as Kavanaugh’s detractors would have us believe, courts should be empowered to make decisions in lieu of legislatures, then our entire democratic experiment is misguided and Marbury v. Madison — the seminal 1803 case establishing the power of judicial review — wrongly decided.
As the late Antonin Scalia noted, Marbury itself was predicated on “law-trained judges” doing what they do best; utilizing the text of the Constitution to assess the legality of legislation. If, however, judges are not bound by its text and can arbitrarily ascribe to the Constitution whatever meaning they like, then the courts are legislating, not judging. In that case, Congress should be the ultimate arbiter of constitutionality like Parliament is in the United Kingdom.
“Only in the theater of the absurd,” wrote Scalia and Garner, “does an aristocratic, life-tenured, unelected council of elders set aside laws enacted by the people’s chosen representatives on the ground that the people do not want those laws.”
By abandoning originalism and textualism as constraints, we have empowered a judicial aristocracy to resolve disputes best settled in a legislative arena, not litigated in a judicial forum — forfeiting the very right to democratic self-determination that the Framers sought to preserve. In the process, we have politicized and personalized judicial nominations and transformed a country built on democratic discourse into one ruled by judicial fiat. And that is sad indeed.
Alexander J. Cotoia is a longtime resident of Mesilla and a corporate paralegal. He is a member of the Federalist Society and is currently studying for a master’s degree in law with a concentration in regulatory compliance from Regent University School of Law. The views expressed in this column are his own. Agree with his opinion? Disagree? NMPolitics.net welcomes your views. Learn about submitting your own commentary here.