What does it mean when supporters of Supreme Court nominee Brett Kavanaugh call him a “constitutional textualist,” as, for example, Michael Gerson did recently in the op-ed pages of the Washington Post? As a political rallying cry, its meaning is surely rather opaque to the average layperson. Is calling a Supreme Court nominee a “constitutional textualist” some quaint but obsolete label, akin to proclaiming that a political candidate is a “Teddy Roosevelt populist” or a “free silver” advocate? Or is there a definable substance to the appellation that may help bring the nominee into focus?
Panelists at a Heritage Foundation event yesterday attempted to shed some light on this question by assessing Judge Kavanaugh’s record as a D.C. Court of Appeals judge over the last twelve years. Justin Walker, an assistant professor of law at the University of Louisville and a former clerk to Judge Kavanaugh, pointed out that Judge Kavanaugh’s approach to the “Internet neutrality” case, in which he dissented from a court of appeals decision upholding the constitutionality of the Obama-era “net neutrality” rule (the rule was later abandoned by the Trump Administration’s Federal Communications Commission), focused on Congress’s language and intent in enacting the original grant of authority to the FCC in 1934. And he noted that in another case, Kavanaugh ruled that the First Amendment prohibits the Federal Election Commission from regulating the expressive political advocacy of non-profit groups, in spite of the fact that the claimant was the pro-abortion political advocacy group Emily’s List. In a First Amendment case involving the Establishment of Religion Clause, Kavanaugh turned back the claim of an atheist that public prayer and the national motto “Under God” were unconstitutional, while remaining open-minded and respectful to his deeply held beliefs. His approach in that case was to inquire whether the history and tradition of the country’s public homage to the role of religion included such expressions – an approach later vindicated by the Supreme Court in a decision affirming the constitutionality of public prayer. Finally, Professor Walker noted that in a decision involving D.C.’s regulation of gun ownership after the Supreme Court had declared in 2008 that a Second Amendment right to individual gun ownership exists, Kavanaugh’s view was that there is no “free-wheeling balancing test” for fundamental rights; Kavanaugh preferred to ask whether the restrictions were consistent with history and tradition.
Another panelist at the Heritage event, Ohio State University associate law professor Chris Walker and a specialist in administrative law, assured his audience that “Judge Kavanaugh is someone who will reign in the administrative state.” Kavanaugh is not deferential to the federal administrative agencies who make the vast majority of legal rules for Americans, Walker said; he advocates a “hard look review” at administrative decisions that requires more than a superficial justification. Walker also pointed to Judge Kavanaugh’s strongly held opinion that the constitutional separation of powers between the branches was designed by the Framers to be a principal bulwark of individual liberty against government, even over and above the Bill of Rights.
These decisions help clarify the outlines of Judge Kavanaugh’s “constitutional textualism.” At the least, Kavanaugh’s approach looks to Congressional intent in delegating authority to federal agencies and upholds individual rights (regardless of the views the party may hold) against vague and questionable claims of regulatory authority. And the history and tradition surrounding a practice also help the interpreter understand what the Framers’ view of it might have been. (Also helpful in understanding what it means to be a “constitutional textualist” is this column by Ilya Shapiro of the Cato Institute explaining in some detail the implications of textualism in several constitutional areas.)
Back to Gerson in the Post, who insists that Kavanaugh is a “mainstream conservative jurist:”
Kavanaugh is an advocate of what he calls “constitutional textualism.” His first commitment is to interpret the Constitution “as written.” But he admits that the language of that document can sometimes be broad and unclear. The First Amendment, for example, protects free speech without limit, though everyone admits it must be limited in certain cases (libel, inciting violence, irresponsible theater disruption). “The exceptions here,” he writes, “are ultimately a product of common-law-like judging, with different justices emphasizing different factors: history and tradition, liberty, and judicial restraint and deference to the legislature being three critical factors.” This is a reasonable, pragmatic textualism that is not likely to produce extreme or overreaching decisions.
That “mainstream” has been re-defined in the last thirty years to mean “originalist” (largely thanks to the good work of the Federalist Society) is a much larger story that deserves telling in detail. As Supreme Court Justice Elena Kagan famously said in her confirmation hearing about the Framers of the Constitution, “Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do…. In that way, we are all originalists.”