August 9, 2018
Opponents of Judge Kavanaugh are scouring everything that he has said or written to negatively characterize his views on many legal and constitutional issues, especially abortion and Roe v. Wade. As a July 12 vox.com article emphasized, Roe v. Wade “is at the center of the fight to block the recently named conservative Supreme Court nominee….” But a careful reading and context are important to accurately decipher what Kavanaugh has or hasn’t said.
Last September, Kavanaugh delivered the “2017 Walter Berns Constitution Day Lecture” at the American Enterprise Institute (AEI), a “conservative think tank” in Washington, DC. Entitled “From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist,” it is worth reading, to see the readability of his prose, to understand the importance of Rehnquist’s tenure on the Court over four decades, and to grasp the humility of Kavanaugh (and what he sees as Rehnquist’s and Chief Justice Roberts’ “humility,” a judicial virtue that Kavanaugh evidently admires).
Rehnquist was the foremost, thorough-going “conservative” of the four justices nominated to the Supreme Court by President Richard Nixon between 1969-1974. In his first year on the Court (13 months to be exact), Rehnquist was one of two dissenters (along with Justice Byron White) in Roe v. Wade. Unfortunately, the three other Justices that Nixon nominated to the Court – Chief Justice Warren Burger, and Justices Harry Blackmun and Lewis Powell – were in the majority in Roe and voted to legalize abortion nationwide. (That story is thoroughly told in the 2013 book by AUL Senior Counsel Clarke Forsythe, Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books).) Rehnquist was nominated to be Chief Justice by President Reagan in 1986 to succeed retiring Chief Justice Warren Burger, and served nearly 20 years as Chief Justice before he died in September 2005 and was succeeded by Chief Justice John Roberts.
In the Berns lecture, Kavanaugh confirmed his commitment to textualism:
It is sometimes said that the Constitution is a document of majestic generalities. I view it differently. As I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning. Absent constitutional amendment, those words continue to bind us as judges, legislators, and executive officials.
He also forthrightly admits that the Constitution is not perfect:
We also, however, must remember its flaws. And its greatest flaw was the tolerance of slavery. That flaw cannot be airbrushed out of the picture when we celebrate the Constitution. It was not until the 1860s, after the Civil War, that this original sin was corrected in part, at least on paper, by ratification of the 13th, 14th, and 15th Amendments to the Constitution.
This has implications for Kavanaugh’s sense of the importance of the original purpose of those Amendments and Americans’ need to understand them.
Kavanaugh also directly commented on the role of a judge by directly raising a basic democratic and constitutional question: “Who decides when it is time to create a new constitutional right or to eliminate an existing constitutional right or to alter the structure of the national government?”
His answer? The Constitution provides that “the people decide through their elected representatives.” And he referred to “those of us who believe that the judges are confined to interpreting and applying the Constitution and laws as they are written and not as we might wish they were written….” He emphasized that “changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.”
In reviewing and summarizing Rehnquist’s career as a Supreme Court justice, Kavanaugh made clear that he agrees with much, if not all, of Rehnquist’s practice of judicial restraint and “originalism,” which influenced how Kavanaugh “first came to understand the role of a judge in our constitutional system.”
Then, in the context of addressing “five areas of Rehnquist’s jurisprudence…criminal procedure, religion, federalism, unenumerated rights, and administrative law,” Kavanaugh comments on Rehnquist’s dissent in Roe. But Kavanaugh does so by emphasizing Rehnquist’s approach to “unenumerated rights” more broadly, rather than abortion specifically:
Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the Court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people. Given the prevalence of abortion regulations both historically and at the time, Rehnquist said he could not reach such a conclusion about abortion. He explained that a law prohibiting an abortion even where the mother’s life was in jeopardy would violate the Constitution. But otherwise he stated the states had the power to legislate with regard to this matter. In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition.
This is an accurate statement of the Court’s current approach toward “unenumerated rights” in its 1997 decision in Washington v. Glucksberg and its 2010 decision in McDonald v. City of Chicago. (Justice Kennedy, however, has not consistently adhere to this formulation of “unenumerated rights.”)
The most that Kavanaugh said specifically about Roe is this:
In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.
So, while Kavanaugh’s Berns lecture indicates that he agrees with Rehnquist’s general position on “unenumerated rights”—which happens to be the Court’s precedent today—the Berns lecture says very little, if anything, about what Kavanaugh would do with Roe today, as a precedent, a topic he simply didn’t address.