Is Justice Kavanaugh an Originalist?

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.

What we know so far: Kavanaugh’s claim to originalism not borne out

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.

Bar chart showing number of times Kavanaugh voted with each other justice. Details described in the text.
Justice Kavanaugh’s votes with other Justices in the 2018 Term (so far)

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.

Bar chart showing number of times Kavanaugh cross-referenced each other justice. Details described in the text.
Justice Kavanaugh’s cross-references to the other Justices in oral argument in the 2018 Term

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).

Pie chart. Details described in text.
Justice Kavanaugh’s questions and comments in oral argument in the 2018 Term, coded by mode of constitutional analysis

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.

Pie chart. Details described in text.
Justice Gorsuch’s questions and comments in oral argument in Constitutional cases the 2018 Term, coded by mode of constitutional analysis
Pie chart. Details described in text.
Justice Kavanaugh’s questions and comments in oral argument in Constitutional cases the 2018 Term, coded by mode of constitutional analysis

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.

Looking Ahead

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.

Nielsen v. Preap forecast: Kavanaugh shows his colors and they are bright red

On a major issue for the Trump administration, Kavanaugh signals he will be loyal

At oral argument in Nielsen v. Preap last week, the Supreme Court considered whether non-citizens released from criminal custody should be subject to mandatory detention when the Department of Homeland Security fails to take them into custody immediately. Coming on only his second day on the Bench, the natural question is: how did Justice Kavanaugh behave, and what does it tell us of his likely vote in the case? Given the Trump administration’s crackdown on illegal immigrants, Nielsen v. Preap presented Kavanaugh with his first opportunity to repay those who stood by him in the face of allegations of sexual misconduct, lack of candor, and an injudicious temperament.

After his confirmation hearings, many expressed concern that Kavanaugh could not be impartial, given the arguably unjudicial anger he expressed, with even the nonpartisan ABA reconsidering its review of him based on concerns about his temperament. In response, Kavanaugh said that he could be impartial. It is difficult to infer how the nomination hearings have affected Kavanaugh because he was always expected to be both conservative and partisan. But whether the cause is ideological alignment, inherent partisanship, or indebtedness and resentment in response to the nomination process, our empirical analysis of the Preap oral argument suggests that Kavanaugh will be loyal to the Republicans. The following figure shows the disagreement gap—the differential between a justice’s treatment of the side he or she ultimately votes with and against—in terms of both justice words and speech episodes in the Preap argument.

United States v. Preap, Disagreement Gap in Speech Events and Words

The disagreement gap is a better predictor for some justices than others. As we noted in a previous post, Justice Gorsuch and Justice Alito have particularly obvious tells in this regard: the more each talks to an advocate, the more likely each is to vote against him or her. The early numbers on Kavanaugh suggest that he will leave Gorsuch and Alito in the dust in this regard. At first in Preap, Kavanaugh seemed to be still finding his feet, with his initial attempts to ask a question thwarted by his colleagues. But once he finally took the floor, he signaled his favor for the Government. He had as much to say to the respondents as anyone—Gorsuch and Kavanaugh both had 13 speech events directed at the Respondents—and he had the highest disagreement gap, with nothing at all to say to appellants. The extreme tilt in his participation on this issue and the proportion of his questions and non-questions (a 5:11 ratio, if you were curious), as well as their content, suggest he is a safe vote for the government and for the Trump administration’s immigration policies.

The rest of the Court

As for the rest of the Court in Preap, the split was fairly predictable, with the liberals strongly supporting the Respondent immigrants and the conservatives showing equal support for the government. On a highly polarized Court, the biggest surprise is the ambiguous signals from Justice Ginsburg.

The issue presented is one of statutory interpretation, since the statute refers to detention “when” the person is released; however, with some of the non-citizens represented in this case having been free for years, one for 11 years, the liberal side of the Court could not help querying whether a constitutional claim also arose (much to the annoyance of Justice Alito). As the figures above show, however, this strategy is unlikely to be successful. We predict a 5:4 win for the government, falling along standard ideological lines (as one of us predicted on CBS on Tuesday, prior to the argument).

The Advocates

The performance of the advocates in Preap is worth noting. Assistant Solicitor General, Zachary D. Tripp, was unusually weak for that office. He struggled to answer basic questions, such as where the government draws authority to detain non-arrestees and whether the same rule would apply to somebody 50 years past detention rather than 11 years. He also interrupted and spoke over the justices an extraordinary 23 times. In contrast, advocate for Respondents, Cecillia D. Wang, began exceptionally strongly, speaking for 4 minutes and 15 seconds before any Justice asked her a question. She was interrupted only 28 times, compared to Tripp’s 52 times, another sign of strength, and she interrupted only 8 times (these were mostly cross-talk).

However, Wang struggled a little later in her argument, repeatedly insisting that the statute’s use of the term “when” a person is detained necessarily requires that detention be initiated on the same day as release from arrest. That strict timetable clearly alarmed the pragmatists on the Court, both left and right. Instead, she should have responded that 24 hours would be the ideal rule, but no matter what the rule, 11 years is clearly unreasonable. Perhaps having had such a perfect beginning, she was shooting for the moon, but in the process she may have lost any chance she had to bring on board the conservative pragmatists, Chief Justice Roberts and Justice Alito.

Justice Gorsuch attempted to flex his formalist muscles, debating Wang on questions of grammar, but it is foolish to think that formalism can decide this question. The term “when” is inevitably context dependent: the time constraint implicit in the command “make the tea when the kettle boils” raises a very different expectation than the instruction “come visit when you are in town.” The government would have the Court believe that tea can be made with water boiled 11 years previously.

Beyond Preap: Kavanaugh’s first week on the Court

Considering all four cases the Court heard in Kavanaugh’s first week on the Bench, the newest justice may not be ideologically moderate, but so far he has been moderate in his behavior, in some senses. As seen on the figure below, on average this week, Kavanaugh talked slightly less than the median level among the justices and interrupted at the median. We saw the same trend in the Preap case.

Kavanaugh’s first week, by the numbers

However, these numbers might conflict with the subjective experience of listening to the oral argument because Kavanaugh barely spoke at all in Air And Liquid Systems v Devries and spoke only to one side in both Preap and in United States v. Stitt. It was only in Stokeling v. United States that Kavanaugh had a significant amount to say to both sides of the argument. It seems likely that when Kavanaugh settles in to the Court he will become even more vocal, and it would not be surprising to see him continue to strongly favor one side in any given case. We also expect that Kavanaugh will interrupt even more in the weeks and years to come.

Prediction: 5:4 for the government

For the government (Petitioner): Kavanaugh, Gorsuch, Thomas, Roberts, Alito

For Preap (Respondent): Kagan, Sotomayor, Breyer, Ginsburg

Likely to switch: none