By David Cole, ACLU Legal Director
With his selection of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court, President Donald Trump has the opportunity to alter the makeup of the Court for generations — and to place it far to the right of the American public. Justice Kennedy, himself a conservative appointed by President Ronald Reagan, proved to have an open mind in his more than 30 years on the bench and, as a result, kept the court within the mainstream of American society.
Kennedy often voted with his conservative colleagues, including in gutting the Voting Rights Act, restricting workers’ access to courts to challenge discrimination on the job, and upholding President Trump’s Muslim travel ban. But Kennedy was also willing to join his more liberal colleagues. His vote was decisive, for example, in recognizing marriage equality, preserving women’s right to have an abortion, upholding affirmative action, banning the death penalty for juveniles, forbidding prayer at public school graduations, affirming the constitutional right of Guantánamo detainees to challenge their detentions, limiting anti-immigrant state laws, and interpreting the Fair Housing Act to ban practices that have a disparate impact on minorities. Because all of these cases were decided by 5–4 votes, their continuing vitality hangs on a single vote, Kavanaugh’s.
Even if Kavanaugh would not have voted the way Kennedy did on any of these cases, some of these precedents might survive on grounds of stare decisis, the principle requiring the court to adhere, generally, to its past decisions. But the key word here is “generally.” Courts can and do overrule precedent. The Supreme Court did just that this past term, for example, in overruling a 40-year-old decision allowing public sector unions to charge fees to cover the costs of services they are required to provide to all employees. So, while it’s unlikely that all of the cases in which Kennedy cast a decisive vote in a liberal direction will be overturned, any number of them could be. And the court can substantially weaken a right without formally overruling it, as indeed it already has done with the right to abortion established by Roe v. Wade.
In light of that fact, and that Trump expressly vowed as a candidate to appoint justices who would overrule Roe v. Wade, it is incumbent upon the Senate to pose probing questions to Kavanaugh — and to require him to provide meaningful answers, not artful dodges. Nominees all too often avoid answering questions about their views by simply describing existing Supreme Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them. But in speeches and writings while a judge, Kavanaugh has repeatedly expressed his own views on many matters that might come before him, including whether presidents should be subject to civil and criminal lawsuits. If he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing.
Here, then, are 10 questions I suggest the senators ask Kavanaugh. These questions avoid asking about any specific case and seek the nominee’s own views, not a description of Supreme Court law. Senators will have to be insistent about getting responses, however, if the hearings are to have any value.
1. Are you committed to interpreting the Constitution as it was understood at the time it was written, or do you agree that its meaning evolves over time through Supreme Court interpretations?
This is perhaps the single most important question for Kavanaugh. Over its history, virtually all Supreme Court justices have interpreted the Constitution as evolving over time. If it did not, segregation would still be constitutional, sex discrimination would not be barred by the Equal Protection Clause, the First Amendment would not protect speech that erroneously attacks the character of public officials, and the Constitution would not protect marriage equality, abortion, or contraception. A small number of conservative justices have over the course of history argued that the Constitution must be interpreted exclusively in an “originalist” fashion, to protect only what it was understood to protect at the time it was adopted. Justice Antonin Scalia was the most outspoken proponent of this view, but Justices Clarence Thomas and Neil Gorsuch also generally adhere to it. Another conservative vote for this backward-looking method of understanding constitutional rights would jeopardize many of the advances that we hold most dear. Does Kavanaugh agree the Constitution as understood today reflects our values, as developed over time, not merely those of the founding generation?
2. Do you believe the Constitution’s guarantee of individual liberty protects the right to make personal decisions regarding one’s own body and intimate relationships, including whom one chooses to marry, how to raise one’s children, whether to use contraception, and whether to obtain an abortion?
Some of the Constitution’s most important rights stem from the Fifth and 14th Amendment provisions prohibiting the government from taking life, liberty, or property without due process. Those provisions have been interpreted for nearly a hundred years as protecting certain crucial liberties and, over time, they have come to include the rights to choose how to educate one’s child, to live with one’s family, to use contraception, and to obtain an abortion. They also protect the rights of adults to engage in consensual sexual relations of their choice and of gay and lesbian and interracial couples to marry on equal terms as straight and same-race couples. Some conservatives, however, don’t believe the court is authorized to interpret liberty to protect these kinds of rights.
Kavanaugh has not ruled directly on the validity of Roe v. Wade or indeed on any of the other issues detailed above. But in a case involving an immigrant minor in U.S. custody, he overturned a court order requiring the government to allow her to obtain an abortion, and he would have required her to delay her abortion for at least 11 days, and very likely longer — had not the full court of appeals reversed Kavanaugh’s decision. In addition, at confirmation hearings for his current position as a federal court of appeals judge, he pointedly refused to say whether he thought Roe v. Wade was correctly decided. And, more recently, he publicly praised Chief Justice William Rehnquist’s dissent in Roe.
Given Kavanaugh’s record and Trump’s promise, senators must demand a substantive answer about Kavanaugh’s own view. If he will not acknowledge this right, so central to American’s lives, then, like Robert Bork before him, he would very likely be unwilling even to recognize a right of contraception — a view that the Senate considered so far outside the mainstream as to warrant rejecting Judge Bork’s confirmation in 1987.
3. Do you agree that, as Justice Kennedy has written for the court, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”? What impact should that have on the constitutionality of laws restricting abortion?
Access to contraception and abortion are central to the struggle for women’s equality. A recent study finds that being denied an abortion results in increased household poverty and dependence on public assistance and reduced employment. A judge who declines even to acknowledge these facts would blind himself to the consequences of his decision for the status of women in our society.
4. You have defended a robust conception of executive power. Recently, the Supreme Court said that its decision upholding the internment of Japanese Americans on the basis of race and national origin was wrong. Can you name other historical examples where you believe presidents acted unconstitutionally in the name of national security? Should the courts have rejected presidential assertions of national security in those cases, and on what basis?
National security has been invoked by presidents to justify detaining and deporting communists, interning Japanese-Americans, torturing suspects, wiretapping innocent Americans, and barring travelers from predominantly Muslim countries from entering the country — the last of which was intended to deliver on Trump’s campaign promise to ban Muslims. If courts do not enforce constitutional and legislative limits on the executive branch’s broad invocations of national security, the president will have a blank check to violate fundamental individual rights.
5. In your 2006 confirmation hearings for a federal court judgeship, you said that you “absolutely” believed President Bush’s statements that the United States does not torture and does not condone torture. Knowing what you know now about the United States’s use of waterboarding and other coercive methods against detainees, do you still believe that the United States did not torture?
Kavanaugh worked for President Bush in the immediate aftermath of the terrorist attacks of September 11, when President Bush authorized actions that are widely acknowledged here and abroad to be gross violations of human rights, including torture by waterboarding. A Supreme Court nominee who does not acknowledge that waterboarding is torture would raise serious concerns about his willingness to put his obligation to law above his personal or political ties.
6. Do you believe that public colleges and universities have a compelling interest in ensuring that they have diverse student bodies?
The Supreme Court has held for decades that race-based affirmative action is permissible to further a compelling interest in maintaining diverse student bodies, as long as race is considered as one factor among others in a holistic assessment of applicants. But as noted above, Justice Kennedy provided the crucial fifth vote in the court’s most recent decision upholding the practice. If Kavanaugh is unwilling to recognize the long-established principle that diversity is a compelling interest, he may provide the fifth vote to end affirmative action.
7. Does the free exercise of religion clause give individuals a constitutional right to engage in conduct that harms others, or does one person’s free exercise end at the point that it inflicts harm on others?
Opponents of certain constitutional rights, including the right to abortion and to marriage equality, have begun cloaking actions that violate these rights in the exercise of religion. A bakery, supported by the Trump administration, argued in the Supreme Court this term that the owner’s religious beliefs permitted the store to discriminate on the basis of sexual orientation by refusing service to a gay couple seeking to buy a wedding cake. The Supreme Court declined to hold that the free exercise of religion allows individuals to invoke religion as a justification for inflicting harm on others. On the contrary, it insisted that the “general rule” is that religious objections do not allow businesses to violate generally applicable nondiscrimination laws. (The court ruled for the baker, but only on the ground that the process that adjudicated his case was infected by religious bias). If Kavanaugh is unwilling to recognize religious freedom stops where it inflicts harm on others, he could abet a campaign to undermine the civil rights of everyone — not just same-sex couples — in the name of religion.
8. Do you agree that a core function of the Supreme Court in our democratic society is to protect the rights of minorities that cannot protect themselves in the political process? Does that principle justify the court’s precedents protecting LGBT individuals?
The Supreme Court has had an important part in protecting the rights of those who lack the political power to have their rights protected through the democratic process. Minority groups and dissidents will by definition be disadvantaged in a majoritarian political system. That is why the court looks with such skeptical scrutiny on laws that target racial minorities or unpopular speakers. On similar grounds, there are strong arguments for recognizing that government discrimination against LGBT individuals should be viewed with heightened scrutiny by the courts, as is discrimination on the basis of sex, religion, and race. Kavanaugh’s views could determine whether LGBT individuals will be entitled to equal dignity and treatment under the Constitution.
9. Do you agree that US courts may consider international law in interpreting US laws and, in particular, that US courts may consider whether US laws comport with international law?
Kavanaugh has written that federal courts should not look to international law when reviewing statutes or executive branch actions, even in contexts squarely governed by international law, such as the laws of war. This view is contrary to centuries-old doctrine dating back to Murray v. The Schooner Charming Betsy (1804), which held that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”
Justice Kennedy, by contrast, frequently looked to international law sources in his decisions, such as when striking down the death penalty and life-without-parole sentences for juveniles as unconstitutional, and in ruling that sodomy laws making gay sex a crime violate due process. In Graham v. Florida (2010), which invalidated life-without-parole sentences for juveniles who commit non-homicide offenses, Kennedy explained that:
The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling, but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.
Kavanaugh should be asked whether he believes it appropriate to look to international law when interpreting statutes concerning matters that international law addresses and constitutional provisions such as the Eighth Amendment's prohibition on cruel and unusual punishment or the 14th Amendment’s due process clause.
10. President Trump has nominated you to the career opportunity of your lifetime. If presented with a case involving his personal interests, what standard will you use in deciding whether to recuse yourself from the case?
The Supreme Court could well decide any number of issues arising out of the Robert Mueller inquiry, which is investigating the president’s alleged obstruction of justice. While working for Independent Counsel Kenneth Starr’s investigation of Bill Clinton, Kavanaugh wrote the section of the Starr report that justified impeaching Clinton for, among other things, lying and obstructing justice. In 2009, however, he wrote an article arguing that presidents ought not to be subject to civil lawsuits, criminal indictments, or even criminal investigations while in office. If any of those issues reach the Supreme Court, will Kavanaugh, appointed by Trump, be able to serve, or will he recuse himself in light of having directly benefitted so substantially from President Trump’s selection?
This piece originally appeared at The New York Review of Books. As a matter of policy, the ACLU, of which David Cole is the National Legal Director, neither endorses nor opposes Supreme Court nominees.