[Editor’s Note: Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor at the University of Notre Dame Law School. He is the founding director of Notre Dame Law School’s Program on Church, State, and Society, an interdisciplinary project that focuses on the role of religious institutions, communities, and authorities in the social order. Garnett teaches and writes about the freedoms of speech, association, and religion and constitutional law, and is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. He spoke to Charles Camosy about President Donald Trump appointing Brett Kananaugh to the Supreme Court.]
Camosy: What are your quick first impressions of Brett Kavanaugh? How do you think the confirmation process will go?
Garnett: Judge Brett Kavanaugh is, all will agree, an impeccably credentialed and highly talented judge. His reputation among lawyers, scholars, and other judges is excellent. He has had a long and varied career in private practice and in public service.
Although the president created, and court-watchers eagerly consumed, drama about his selection, at the end of the day, the nomination of Judge Kavanaugh is not even a little bit surprising. In fact, there is every reason to think that Justice Anthony Kennedy, for whom Kavanaugh clerked, was hoping he would get the nod.
[Editor’s Note: This interview was conducted before some press reports implied Justice Kennedy had “made a deal” in the selection of Kavanaugh. Garnett later told Crux he “flatly rejects” this thesis, and his remarks meant only Kennedy would be happy to see another of his former clerks picked.]
The fact that Kavanaugh is an experienced, mature, and accomplished nominee makes it more likely, unfortunately, that the confirmation process will be tainted by mischaracterizations of his record and even personal attacks. For many Democrats and progressive activists, the fact that the Republicans in the Senate did not act on President Obama’s nomination in 2016 of Judge Merrick Garland, and instead held that seat open for now-President Trump to fill with Justice Neal Gorsuch, calls into question the legitimacy of any Trump nominee.
Add to this that Justice Kennedy was often the fifth vote in controversial 5-4 decisions, and the stage is set for a very contentious confirmation process, and perhaps even a scorched-earth effort to somehow derail it. However, because of changes to the Senate’s filibuster rules — changes for which the Democrats bear at least as much responsibility as the Republicans — it is highly likely that Kavanaugh will be confirmed, although not by the wide margins that were common in the 1980s and 1990s.
Republicans will ask questions designed to give Kavanaugh the opportunity to display his talents and to affirm his commitments to judicial restraint and to the careful and conscientious exercise of the judicial craft. Democrats will try to either secure from Kavanaugh semi-promises to honor past Court decisions on abortion and gay rights or raise alarm that Kavanaugh’s addition to the Court will undermine these precedents.
As with most confirmation hearings over the past three decades, though, we are very unlikely to hear any such promises — after all, nominees of presidents of both parties have agreed they are inappropriate — and are almost certain to be told only that respect for past precedent is important, but not absolute.
The question on most everyone’s mind is what impact this choice will have on Roe v. Wade, Planned Parenthood v. Casey, and abortion law more generally in the United States and in several states. Can you help us work through this question? What do you anticipate happening? Is there ongoing litigation that might now find itself on the Supreme Court docket if this nominee is approved?
Although it has been 45 years since Roe v. Wade was decided, legal scholars — just like Americans generally — continue to debate whether or not it was rightly decided. Many believe that Roe — and Planned Parenthood v. Casey, handed down in 1992, which re-affirmed a constitutional right to abortion — was not well supported in the Constitution’s text or in the Court’s caselaw and that it was a damaging overreach by the justices. Although many Americans do not realize this, the United States has one of the most permissive abortion-law regimes in the world. For years, pro-life citizens and judicial conservatives alike have hoped that the Court’s membership would evolve so as to make possible the correction of these erroneous decisions. With the retirement of Justice Kennedy, who voted to uphold an abortion right, many believe that his replacement by a judicial conservative could result in Casey and Roe being, finally, repudiated.
It is important to remember, though, that the Supreme Court of the United States does not simply announce rules; instead, it decides particular cases. The justices lack the power to reach out and find a convenient occasion to announce Casey’s overruling.
What is more, even if an abortion-related case does find its way to the Court, the justices often try to avoid explicitly overruling even decisions they think are wrong. So, even if it is the case that a Justice Kavanaugh and four other colleagues believe that Casey was wrong, they could uphold many regulations of abortion by distinguishing and narrowing that precedent, rather than burying it. For example, if a state enacts — as Indiana did — a ban on sex-selection abortions or abortions aimed at unborn children with Down Syndrome, and a challenge makes its way to the Supreme Court, it is possible that the justices could uphold this law while remaining within the Casey framework.
Another factor to consider is the litigation strategy of the abortion-rights groups that would challenge any new abortion regulations. We can expect these challengers to direct many of their arguments at state courts, using state-law arguments, in order to insulate these cases from the Supreme Court’s review. The Supreme Court, remember, decides questions of federal law. So, if a state were to enact a complete ban on elective abortions — a ban that would, almost certainly, raise the issue of Casey’s continued validity — it is very likely that challengers would argue that the ban violated the state, and not the federal, constitution.
Are there other important cases and or legal debates that we should have our eye on in light of this pick? I know religious liberty is a particular focus for you. How else do you anticipate this nominee, if confirmed, shaping the Court?
I sometimes say to students that we really have two Supreme Courts: The “May Court” and the “June Court.” The “May Court” doesn’t get much ink or air time, but it is where the justices do most of their work, deciding technical legal questions and interpreting complex federal statutes.
One would not know it from reading the papers, but more of the Court’s decisions are unanimous or decided by an 8-1 vote than they are closely divided 5-4 rulings in culture-war matters. For most of what the Court does, the replacement of Justice Kennedy, or even the more liberal Justice Sotomayor, would not make an ideologically salient difference.
However, the work of the “June Court” — which we all read about in the closing days of June each year — involves sharply defined ideological divisions and hot-button issues of affirmative action, voting rights, same-sex marriage, religious liberty, abortion rights, the freedom of speech, and so on. With respect to the decisions of the “June Court”, the replacement of Justice Kennedy with Justice Kavanaugh (or, indeed, with any of the other contenders whom the president was considering) could, in some cases, make a difference.
That said, it should be remembered that, despite his “swing justice” designation, Justice Kennedy was usually aligned with the judicial conservatives. He was strongly committed to the freedom of speech — including the expression of pro-life demonstrators and crisis-pregnancy centers — and he played a pivotal role in many religious freedom and school-choice cases.
He consistently protected religious expression and activity and believed that faith can have a role in the public square, even in our secular society. He interpreted generously the federal Religious Freedom Restoration Act and other laws that allow exemptions for religious believers. He believed that the Court had an important role to play in limiting the powers of the national government and protecting the sovereignty of states. He affirmed and enforced an individual right to gun ownership. It is likely that his successor will agree with him on these matters.
Speaking of religious liberty, despite being a favorite of many Catholic pro-lifers, Amy Barrett was not selected. Many will wonder if her religiosity played a factor in her being passed over due to worries about religious bias or a religious oath she has taken. It was certainly brought up in her federal court nomination hearings when Senator Feinstein made the accusation of “the dogma living loudly” within her. What is your view?
Judge Amy Barrett, who is a longtime friend and colleague of mine, would have been — and could well still be, someday — an outstanding nominee. When she was confirmed to the Court of Appeals, her hearings were marked by some unfortunate lines of questioning by several senators, including Senator Feinstein. These senators did not simply ask Barrett whether she would follow the law but instead insinuated that, because she is Catholic, her ability to do so was especially suspect. These senators’ questions echoed the ugly anti-Catholic suspicions of an earlier era. Of course, all judges have experiences and views that shape their decision-making, and it is reasonable to ask all judicial nominees to commit to following the law that is laid down rather than their own preferences, religious or other. The senators’ questions, though, went beyond this, and not only badly distorted her written work but also descended into strange accusations that she was blinded by “dogma.”
Also unfortunate have been the recent suggestions that, because she is active in a charismatic renewal group called the People of Praise, she is therefore in the grips of dual loyalties or cult-like control. Millions of American Christians participate in Bible studies, small faith communities, and accountability groups, in addition to the more common services-on-Sunday routine. The coverage of Barrett’s association with her religious community was sensationalistic and unfair.
What do the politics surrounding this selection, and the coming confirmation process, mean for the role of SCOTUS more generally? Is it time to admit that this is a political body rather than one–to use the image offered by Chief Justice Roberts during his own confirmation hearing — which merely calls balls and strikes?
America and Americans are badly divided. The election of 2016 both exposed and exacerbated sharp cleavages and serious tensions. Although the American judiciary is constitutionally designed to be independent, it is not and never has been completely removed from politics. And, because the Supreme Court has, over the past 50 years or so, taken on a much more sweeping and supervisory role in American life, and assumed for itself the power and prerogative not just to interpret federal laws but to be the final arbiter of contested moral questions, it is no surprise that Americans, more and more, care about the composition of the Court.
It is quite reasonable for Americans, who care about controversial issues like affirmative action, gay rights, abortion, and the death penalty to conclude that, if the Court is going to be the institution that decides these matters for us, then we are going to care about who’s on the Court. It would be far better, though, if the Court occupied a smaller, more limited place and if the justices deferred more humbly to the decisions of democratically accountable legislators and officials. Such a restrained posture would, possibly, turn down the temperature of our judicial nominations and confirmations.