This week we have another guest blogger, a Northwestern Pritzker law student, Sydney Black. Sydney agreed to turn her excellent paper for Tonja Jacobi’s Supreme Court cases seminar into a ScotusOA post. In this post, Sydney uses content analysis to investigate Justice Brett Kavanaugh’s claim to be an originalist.
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By Sydney Black
When asked at his Supreme Court confirmation hearing whether he was an “originalist,” then-Judge Brett Kavanaugh answered, simply and directly, “That’s correct.” Yet some suggested Kavanaugh would likely place far less value on history than the title “originalist” would suggest. The natural question is: of the cases we have seen so far, has Kavanaugh stood by his promise of originalism?
There are two ways in which Kavanaugh could show his originalist colors: 1) agreement with the Court’s self-described originalists, Justices Thomas and Gorsuch, and disagreement with the Court’s greatest pragmatist, Justice Breyer, demonstrated through voting or cross-referencing; 2) oral argument questioning focused on originalist concerns, such as textualism and historical meaning, and avoidance of pragmatic concerns, like practical consequences. A quantitative analysis of Kavanaugh’s voting patterns, cross-referencing behavior, and oral argument questioning suggests that Kavanaugh’s claim to be an originalist is quite dubious.
Voting Alliances – different shades of conservatism
Looking first at his voting agreement with his different methodological brethren, Figure 1, below, depicts the number of times Kavanaugh voted with each justice, in all cases decided so far, and specifically in the most relevant cases for originalism, constitutional and statutory interpretation cases.
Overall, Kavanaugh voted more times with the non-originalist conservatives, Chief Justice Roberts and Justice Alito, than with either Thomas or Gorsuch. Kavanaugh also voted more often with Breyer than Gorsuch. For constitutional and statutory interpretation cases, where one might predict his originalist tendencies would be strongest, Kavanaugh voted more times with Alito and Roberts than Gorsuch or Thomas, and more times with Breyer than Gorsuch. In this way, Kavanaugh has shown a greater tendency to vote with the Court’s non-originalist conservatives and moderate liberal pragmatist than with the originalists, even for cases ripe for originalist analysis.
Cross-Referencing – everyone but the originalist(s)
Cross-referencing in oral argument is generally a sign of agreement between justices. Figure 2, below, illustrates the number of cross-referencing instances per justice in a selection of cases this term (N=21), overall and for constitutional cases.
Overall, Kavanaugh referenced Justices Kagan and Breyer many more times than he referenced any other justice, and notably more than three times as often as he referenced Gorsuch. Kavanaugh also referenced the pragmatist conservative Alito and the formalist liberal Justice Ginsburg more than Gorsuch. For constitutional cases, Kavanaugh referenced Breyer, Kagan, and Alito more than Gorsuch. In this way, Kavanaugh’s cross-referencing behavior signaled more support for the Court’s pragmatists and two liberal justices than for the originalism inclined Justice Gorsuch (cross-references to Justice Thomas are rare because he almost never speaks in oral argument).
Oral Argument Questioning – some content analysis
The types of questions Kavanaugh asked during oral arguments offers another means of examining his commitment to originalism. Reviewing the oral argument transcripts for the same selection of cases as the cross-referencing analysis, I identified and coded each question Kavanaugh asked for the mode of constitutional interpretation it reflected i.e. Textualism/Original Meaning, Structuralism, History/Precedent, Pragmatism, Miscellaneous. Figure 3, below, illustrates the number of questions Kavanaugh asked per mode of constitutional analysis as a percentage of overall questions (N=167).
Kavanaugh asked significantly more pragmatist questions than any other question type, including textualist/original meaning questions. He also asked slightly more history/precedent questions than textualist/original meaning questions. It could be argued that his history/precedent questions are an expression of his originalism. In fact, in Gamble v. United States, Kavanaugh describes stare descisis as “part of the original understanding,” in sharp contrast to Thomas. However, it is telling that Kavanaugh often inquired about precedent as a practical concern for reliance on historical practice. In Carpenter v. Murphy, for example, Kavanaugh stated, “stability is a critical value in judicial decision-making, and [in overturning] we would be departing from that and creating a great deal of turmoil.” Therefore, even if his history/precedent questions are consistent with originalism, the results still show Kavanaugh’s strong concern with practical consequences, which remains a departure from originalism.
The next two figures take a comparative look at Kavanaugh’s questioning, showing the number of questions asked by Gorsuch (Figure 4) and Kavanaugh (Figure 5) by mode of interpretation specifically in constitutional cases.
Like Kavanaugh, Gorsuch asked significantly more pragmatist questions than textualist/original meaning questions overall, suggesting there is no such thing as pure originalism. However, Gorsuch was significantly less likely to ask pragmatist questions and more likely to ask textualist/original meaning questions than Kavanaugh. Because Kavanaugh’s questioning remains more focused on pragmatic than originalist concerns, to a greater extent than Gorsuch’s, Kavanaugh’s questioning demonstrates his deviation from originalism and toward pragmatism.
Qualitative Analysis – who to join in opinions?
Kavanaugh’s behavior in two constitutional cases provides another view of his originalist expression or lack thereof. While the Court in Timbs v. Indiana held unanimously that the Excessive Fines Clause was incorporated against the states, Kavanaugh chose not to join Thomas and Gorsuch in either of their concurrences, which both argued on originalist grounds that the appropriate vehicle for incorporation was the Privileges or Immunities Clause. This presented Kavanaugh with a low risk opportunity to support the Gorsuch/Thomas brand of originalism: he didn’t have to join in dissent or write alone in concurrence, all he had to do was join Gorsuch or Thomas in recognizing their supposedly originalist interpretation of incorporation. Yet Kavanaugh declined.
Similarly, in Garza v. Idaho, Kavanaugh declined to join the Court’s two self-identified originalists in an issue pertaining to original meaning. At issue in Garza was whether the presumption of prejudice in certain Sixth Amendment contexts applies when the defendant signs an appeal waiver. Thomas and Gorsuch, in dissent, challenged longstanding precedent and re-examined the original meaning of the Sixth Amendment. The fact that Kavanaugh declined to join them is not as surprising as in Timbs. During oral argument, Kavanaugh focused on pragmatic concerns, including whether there was any practical problem that would justify precluding the presumption. In this way, both Timbs and Garza show Kavanaugh’s willingness throughout his first term to set aside assertions over original public meaning in favor of pragmatism.
The evidence from Kavanaugh’s first term to date suggests he is not an originalist as that brand of judicial philosophy is commonly understood. Possibly, Kavanaugh’s latent originalism has been overshadowed by strategy and diplomacy in his rookie year; he may yet become more comfortable touting his originalism when he graduates from his freshman role. An alternative hypothesis is that Kavanaugh’s embrace of originalism was a political tactic to secure his nomination. Whatever his motivations may have been, the early cases suggest Kavanaugh is unlikely to fulfill his confirmation hearing promise and his tendencies toward pragmatism will continue.