A reading of Judge Brett Kavanaugh’s opinions, writings, and self-description reveals that he’s an originalist who shares the principles that guided Justice Antonin Scalia. Any intelligent analysis of Kavanaugh’s jurisprudence also must examine Scalia’s decisions.
Indeed, when President Donald Trump undertook to appoint judges “very much in the mold of the late Justice Scalia,” he succeeded. Both Justice Neil Gorsuch and Kavanaugh are the kind of originalists often referred to as textualists. They believe that the Constitution should be interpreted in accordance with the original meaning of the text, without regard to current principles, attitudes or morality. Although this approach is highly respected, a textualist’s reading of the Constitution is often skewed by personal beliefs, just like so-called “activist” judges.
Scalia, a brilliant jurist with strong personal beliefs, did not believe that there should be a wall of separation between church and state, opposed most laws designed to eliminate discrimination and opposed abortion laws. Although he did much of this in the name of originalism, many of his decisions were a product of his policy and religious preferences.
Take, for example, Scalia’s view of the 14th Amendment, written after the Civil War granted citizenship rights to slaves. Perhaps its most significant part was the assertion that “no state” could “deny to any person” the “equal protection of the laws.” Because “gender” was not mentioned in the text, Scalia reasoned, the “equal protection” clause should not be applied to protecting citizens or other persons against gender discrimination. Justice Anthony Kennedy and four other justices did not agree with the textualists when they bestowed equal protection rights on gay citizens.
But in his Citizens United decision, striking down as unconstitutional major portions of the campaign finance law, Scalia found that corporations are “persons” and have a right to “free speech” through the 14th Amendment. So, a textual originalist could somehow find that the 14th Amendment can protect rights of slaves and corporations, but not women or citizens who are gay.
Scalia’s textual views of the Second Amendment in the District of Columbia v. Heller led him to conclude that the operative clause of the amendment was that “the right of the people to bear arms shall not be infringed,” without needing to be part of a “well ordered militia” — despite that language in the first half of the amendment.
The saving grace of that opinion was the provision that “the carrying of ‘dangerous and unusual weapons’ ” could be prohibited. The decision was vague on what kind of weapons and what kind of limitations would pass constitutional muster, but Kavanaugh seems to have little doubt. Dissenting from a recent D.C. Circuit Court ruling, Kavanaugh wrote, “Semi-automatic rifles, like semi-automatic handguns . . . are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses,” and should not be banned.
The NRA has sued to declare many state gun-control laws, including those banning assault weapons, to be unconstitutional. The Supreme Court has so far refused to review court decisions favoring those laws; however, Kavanaugh’s presence on the court would undoubtedly bring up those cases for review, and the new majority would predictably strike down those state laws. Those campaigning for new gun laws should know that once the Supreme Court has extended the reach of the Second Amendment, those new laws will be unconstitutional.
Make no mistake, much of what Justice Scalia sought to accomplish as a jurist will now be realized. For better or worse, elections have consequences.
Sol Wachtler, a former chief judge of New York State, is a distinguished adjunct professor at Touro Law School.