Justice Kavanaugh, Umpires, and the "No Serious Person Approach" to Constitutional Interpretation

Last Friday, eight Supreme Court justices overturned a Fifth Circuit decision holding that someone bound by a domestic relations protective order can't be disarmed without violating his Second Amendment rights. There were a bunch of concurring opinions, and Justice Thomas was the sole dissenter (of course). Mike's analysis of the case is spot on and provides expert commentary on the various opinions.

This post is devoted to Justice Kavanaugh's concurring opinion in Rahimi, which reflects pretty much all that is wrong with constitutional law and originalism. It is one of the most embarrassing, self-owning opinions I have ever read.

First, a little background.

In Griswold v. Connecticut, the Court struck down a Connecticut law banning contraceptives. Relying on a number of different constitutional provisions, Justice Douglas's opinion gave birth to the right to privacy, which eventually became the basis for Roe v. Wade

In Griswold, the Court said the following: "We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner should be our guide. But we decline that invitation."

The reference to Lochner is shorthand for a bad decision in which the justices second-guess laws based on policy not law. Of course, the right to privacy is not expressly in the Constitution, and Griswold is a case where the Court embraced the Lochner type of judicial second-guessing of laws that the justices do not like but which do not contradict clear constitutional text.

In Roe v. Wade, Justice Blackmun began his opinion this way:

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York:

"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Of course, Roe went on to overrule the laws of 49 states and, whatever one thinks of the opinion, employed a Lochner-type of analysis.

And, finally by way of background, at his confirmation hearing, Chief Justice Roberts made his now infamous umpire analogy:

Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. 

I had thought it common ground among politicians, law professors, lawyers, and even the general public that Supreme Court justices are nothing like umpires because they actually make the rules governing the constitutional law game. Those rules are constantly changing and need updating by the justices and lower courts, all of which has no real similarity to sports umpires of any kind. Retired Judge Richard Posner once said this about Roberts's statement:

No serious person thinks that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires. The rules are created by the judges themselves. They are created out of materials that include constitutional and statutory language and previous cases, but these conventional materials of judicial decision making quickly run out when an interesting case arises.

No serious person?

All of which brings us to Justice Kavanaugh's concurring opinion in Rahimi last Friday. He began as follows:

In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution. When performing that Article III duty, the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and postratification history, and precedent. 

Later on in his opinion, Kavanaugh said this (numerous citations omitted):

Judges are like umpires, as THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge must stick close to the text and the history, and their fair implications, because there is no principled way for a neutral judge to prefer any claimed human value to any other. History establishes a criterion that is conceptually quite separate from the preferences of the judge himself. When properly applied, history helps ensure that judges do not simply create constitutional meaning out of whole cloth.

No serious person?

We can all agree, I hope, that whatever method of constitutional interpretation a judge decides to adopt, transparency in the articulation of that ideology is extremely important as a rule-of-law value. Judges should give real reasons for their decisions, not fake ones. What those reasons ought to look like is highly contestable, but the reasons must be an honest reflection of the judge's state of mind.

Does Supreme Court Justice Brett Kavanaugh really believe that Supreme Court justices are like umpires and that what keeps them in their proper role is exclusive reliance on text, history, and precedent rather than a search for the best policy? According to Kavanaugh, policy questions are even more indeterminate than text and history and are not the proper stuff of judicial investigation.

No serious person?

Since Kavanaugh joined the Court, he has voted to strike down affirmative action, invalidated a New York gun law dating back to 1911, overruled Roe and Casey, embraced the major question doctrine to substantially alter the balance of power between courts and administrative agencies, overturned decisions by more accountable government officials regarding Covid-19, and used the free exercise clause to stop states from trying to maintain a proper balance between church and state, among many other aggressive exercises of judicial review.

And, it turns out, of course, that in all these areas of law Justice Kavanaugh's alleged historical analysis of text, history, and precedent (Dobbs?), line up almost perfectly with the Republican Party's value preferences. Coincidence?

Of course, we all know the problems with an exclusively historical approach to constitutional litigation:

1) Often there will be no legally relevant history;

2) Often there will be too much relevant history, which any good lawyer can manipulate (fairly) to suggest the proper outcome of the case;

3) Judges are not historians and do history terribly;

4) The history of the United States is replete with treating people as less than full citizens. The white males who ratified both our original Constitution and the Reconstruction Amendments embraced values of exclusion that hopefully few people embrace today. Those are the values (exclusion) that we should adopt today as our governing standards?

5) Major questions of public policy in America in 2024 should not be resolved by the values of ancient worlds (Mathew Hale, really?).

Justice Kavanaugh wants to pretend that judges should and do take policy concerns out of legal decisions. He can point to many Supreme Court opinions (like the ones in Griswold and Roe) that say the same nonsense. And yet, it turns out that Justices Marshall, Ginsburg, and Sotomayor almost always vote(d) liberal in political cases, Justices Scalia, Thomas, and Alito almost always vote(d) conservative, and Justices Powell, Kennedy, O'Connor, and White, among others, switched back and forth along the ideological spectrum. Why? Is it because their rigorous study of text and history led them to different conclusions? Of course not. It is because values, experience, and politics are the most important factors explaining Supreme Court constitutional decisions, not text, history, or precedent. 

And yet, Kavanaugh writes the following about judges using balancing tests to inject policy concerns into constitutional litigation:

The subjective balancing approach forces judges to act more like legislators who decide what the law should be, rather than judges who say what the law is. That is because the balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with a roving commission to second-guess legislators and administrative officers concerning what is best for the country.

No serious person?

Finally, it might be argued by those who want to keep pretending that we can take the judging out of judging that in Rahimi, Kavanaugh (and all the other conservatives except Thomas) went against their policy preferences by upholding the federal law prohibiting those subject to domestic relations protective orders from owning guns. But like all such arguments, that is nonsense. 

Rahimi had a long history of making violent threats, shooting his gun, and harassing his girlfriend, all of which led to the protective order. Are we to think that Justice Kavanaugh, who marched his girls' softball team into his confirmation hearing, thinks that such people should be armed? Of course not. And the other conservatives except Thomas agreed because, in the immortal words of Justice Scalia apparently drawing a contrast between himself and Justice Thomas, "Look, I am an originalist but I'm not a nut."

The justices protest too much and too often that they are simply doing historical and textual analysis and that policy concerns should be left to legislators. But it turns out the justices consistently vote their value preferences, which is why we have liberal, moderate, and conservative justices. No serious person would believe that the explanation for those differences lie in history not policy, which raises the question:

Is Justice Kavanaugh a serious person?