Several days have passed since my blog entry about the Senate proceedings to confirm Mr. Kavenaugh. He is now Justice Kavenaugh. The Republicans got their man. OK. Well and good. But, along the way, the nominee vowed to adhere to the law as it was written. That makes for a big question. What did Mr. Kavenaugh mean when he said those words? For that matter, an earlier nominee, Mr. Neil Gorsuch, made the same promise. What did he mean?
Did these gentlemen mean to adhere to the literal, explicit words of the Constitution and perhaps the Federalist Papers? Such would indicate an understanding of the law as it appeared to the Founding Fathers. If such were the case, is the US Air Force unconstitutional? No where is the concept of air power mentioned. The Army and Navy, yes, but the Air Force. The reason, of course, is simple: airplanes hadn’t been invented. At best, an experimental hot air balloon was flown in France, but that’s not something that concerned the Founding Fathers. So, this being the case, should the Air Force be disbanded as something unconstitutional?
At the opposite extreme, what was the logic of Roe vs. Wade, the famous decision overturning many laws criminalizing abortions? In this case, the due process clause of 14th Amendment of the Constitution was invoked. In case my readers don’t have this amendment memorized, the relevant phrase applying here is stated here: “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[1] Specifically, the court opined, ”the right to an abortion as a fundamental right included within the guarantee of personal privacy.” In a dissent, two justices wrote, “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.” [2]
In both cases, the justices cited the law. Both sets of justices believed that they had stepped along the same path that Justices Gorsuch and Kavenaugh promised to follow. This divergence of opinions can clearly leave voter confused as to what “the law” means. The real answer has long been held by lawyers, “The Constitution means what the Supreme Court says it means.”[3] That is, what is deemed proper during one era may not be deemed so in another. A classic example of this is issue of segregation. In it, the “separate but equal” standard that was upheld in the Plessy vs. Ferguson case of 1896 was overturned in 1954 through the Court’s review of the Brown vs. Board of Education of Topeka.
The spectacle of the Senate’s confirmation hearings indicated strongly that Mr. Kavenaugh was selected less for what his judicial qualifications might be and more for how he will interpret the law…or as has been cited, how he will “follow the law as written.” Specifically, he is expected to enforce the political views of the Republican Party. This shouldn’t surprise anyone given the chasm that divides the two parties. If Mr. Kavenaugh were a Democrat, he would be expected to uphold those ideas in the Court. Either way, to uphold the law is merely a way of saying that party values will be maintained.
Fortunately, a strange thing often occurs with justices after they ascend to the court. When Earl Warren was nominated by President Eisenhower, his background was strongly Republican. He was a two-term governor of California and Thomas E. Dewey’s vice-presidential partner during the 1948 presidential election. But, what promised to be a Republican interpreter of the Constitution became a very liberal force in American jurisprudence. Among the cases his court heard were the above-mentioned Brown case and ending prayer in public schools.[4]
This article is not meant to laud the decisions of the Warren Court, but rather to laud its independence from the political currents that permeate the legislative and executive branches of our governments as they range from city level to national level. If the Court were to be merely the mouthpiece of whatever political party that was in power, then what would its purpose be? None, except that being so would put them in a position of political power that has no review by the public. Such would invalidate the concept of democracy that means governance by the people. Rather, it would become governance by a few, which is the basis of authoritarian rule.
So, let us hope that Justices Gorsach and Kavenaugh become truly independent adjudicators of the Constitution and not merely party hacks echoing the desires of politicians. Saying this means that often elected representatives of our government will be frustrated by decisions that counter their fondest dreams, but such was truly the dream of our Founding Fathers. If they do so, then they will be “upholding the law” as it is written.
[1] “Amendment XIV.” Cornel Law School; Legal Information Institute.. https://www.law.cornell.edu/constitution/amendmentxiv. 10/8/18.
[2] “Roe vs. Wade.” Wikipedia. https://en.wikipedia.org/wiki/Roe_v._Wade. 10/8/18.
[3] The Constitution means what the Supreme Court says it means.” Harvard Law Review. https://harvardlawreview.org/2016/02/the-constitution-means-what-the-supreme-court-says-it-means/. 10/8/18.
[4] “Warren Court.” Wikipedia. https://en.wikipedia.org/wiki/Warren_Court. 10/8/18.