Brett M. Kavanaugh describes Justice Anthony M. Kennedy, for whom he clerked and whose seat he has been tapped to fill, as his “mentor.” But Kavanaugh’s true judicial role models may be two other, significantly more conservative justices — William H. Rehnquist and Antonin Scalia.
As it happens, Kavanaugh gave speeches last year about each of them. To read them now is to get a glimpse of a future Justice Kavanaugh, and, let’s just say, he doesn’t look much like the justice he would replace.
Speaking about Rehnquist before the American Enterprise Institute, Kavanaugh described the late chief justice as “my first judicial hero,” relating how, reading his opinions as a law student, “in class after class, I stood with Rehnquist.” Rehnquist, Kavanaugh said, “righted the ship of constitutional jurisprudence” during his 33 years on the court, “turning the Supreme Court away from its 1960s Warren Court approach, where the court in some cases had seemed to be simply enshrining its policy views into the Constitution, or so the critics charged.”
Or so the critics charged. Kavanaugh is a careful judge, yet his remarks left no doubt that he is among those critics. On the notion of a wall of separation between church and state, he noted, Rehnquist “was central in changing the jurisprudence and convincing the court that the wall metaphor was wrong as a matter of law and history.” Rehnquist, he said, was “critically important in putting the brakes on the commerce clause” — an issue that came to the fore with the Affordable Care Act years later, when the court said the individual mandate overstepped congressional power to regulate interstate commerce. (It allowed the mandate to go forward under the theory that it was a tax, something Kavanaugh had foreshadowed in his own opinion in another ACA case.)
And Kavanaugh described, in ways that made his approval plain, Rehnquist’s reluctance to find “unenumerated” rights in the Constitution. Rehnquist, was, after all, one of the two dissenters in Roe v. Wade , criticizing the majority for finding “within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the amendment.”
Rehnquist’s approach prevailed in 1997’s Washington v. Glucksberg , when he wrote for a five-justice majority finding no constitutional protection for assisted suicide, and saying that fundamental rights protected by the 14th Amendment are only those “deeply rooted” in history and tradition.
“Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases,” Kavanaugh observed. But although Rehnquist “was not successful in convincing a majority of the justices in the context of abortion,” Kavanaugh added, “he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights . . . helping to ensure that the court operates more as a court of law and less as an institution of social policy.”
No mention of what Kavanaugh makes of Kennedy’s subsequent decisions on gay rights. No real clue about how he would weigh the importance of precedent. But also little doubt that his preferred approach to constitutional interpretation would not find constitutional protections for abortion or same-sex marriage.
In his speech on Scalia, part of a Notre Dame symposium on the late justice, Kavanaugh lamented the growing public perception that Supreme Court outcomes are “prebaked based on the party of the president who appointed the justices or the policy preferences of the justices.” He laid part of that blame on the fact that, in determining the scope of constitutional protections, the court uses “vague and amorphous tests” that “can at times be antithetical to impartial judging and to the vision of the judge as umpire.”
What comes through here, once again, is Kavanaugh’s sympathy for the Rehnquist-Scalia approach to constitutional interpretation: “Requiring judges to focus on history and tradition,” he suggested, “might establish a much clearer strike zone” for those judge-umpires.
Indeed, Kavanaugh employed this method in a 2011 case involving the District of Columbia’s ban on assault-style weapons. The majority — two other Republican-appointed judges — upheld the ban, applying a balancing test of the sort that Kavanaugh sees as too malleable. Kavanaugh, dissenting, said he interpreted Scalia’s earlier ruling in the gun case to mean that restrictions should be assessed on history and tradition. Because “semiautomatic rifles have not traditionally been banned and are in common use,” he wrote, they are protected under the Second Amendment.
Referring to that opinion in the Notre Dame speech, Kavanaugh noted, “I am the first to acknowledge that most other lower-court judges have disagreed. The issue has not returned yet to the Supreme Court. To be determined.”
Yes, most likely by a court that includes Kavanaugh, channeling his not-so-inner Rehnquist and Scalia.