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A Clash of Judicial Visions
LAW & THE COURTS
A Clash of Judicial Visions
By JOHN YOO & JAMES C. PHILLIPS
October 19, 2018 6:30 AM
Defining the proper role of the Supreme Court in our constitutional system
Editor’s Note: The following is the first in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track.
The end of the sordid ordeal that led to Brett Kavanaugh’s confirmation provides conservatives the opportunity to think deeply about what they want from the Supreme Court. Conservatives, of course, would have fought for Kavanaugh whether he was a stalwart Clarence Thomas or a wandering Anthony Kennedy. At stake were the principles of fairness and due process that should guide all of our institutions, even when they intersect with the #MeToo movement’s claims. The courts, Congress, federal agencies, state governments, and even the most delusional of our great societal institutions — the media and our colleges and universities — must not banish facts, proof, and the right to be heard.
But now that Justice Kavanaugh has assumed his seat on the Court, conservatives can take a step back and consider their agenda for the future. Democrats launched their scorched-earth war against Kavanaugh, an outstanding judge and distinguished public servant, precisely because his appointment promised a reliable fifth vote for a conservative majority. There’s a good argument to be made that conservatives have not had such a working majority on the Court since 1936. Even though Republican presidents have appointed the majority of justices since 1968, when Richard Nixon won on a law-and-order platform, their appointments have often “grown in office” and drifted leftwards. But the outrageousness of Democratic attacks on Justice Kavanaugh should guarantee that he will not follow in the path of Republican-appointed Justices such as Harry Blackmun, John Paul Stevens, and David Souter, who became lions of the Left.
The Supreme Court now has the opportunity to reconsider doctrines at odds with the Constitution’s original meaning. Before they devolved into an ugly political and personal brawl, Kavanaugh’s confirmation hearings revealed, among other things, the fault lines in American constitutional politics.
....
With the confirmation of Justice Kavanaugh, for the first time in generations there is a majority of justices on the Supreme Court who, to varying degrees, practice originalism and textualism. This means that the Court can systematically begin to restore the Constitution to its original meaning. This constitutional restoration does not mean that the Constitution’s original meaning is the best choice from a policy perspective on any given issue. It means that the people get to decide what is best, and the Supreme Court is bound to follow their will. The Court has no authority to diverge from the Constitution’s original meaning, only a duty to return to it until the people decide otherwise. And with the Court’s new makeup, a day when it once again sits atop the “least dangerous” branch of government is within sight.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
A Clash of Judicial Visions
By JOHN YOO & JAMES C. PHILLIPS
October 19, 2018 6:30 AM
Defining the proper role of the Supreme Court in our constitutional system
Editor’s Note: The following is the first in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track.
The end of the sordid ordeal that led to Brett Kavanaugh’s confirmation provides conservatives the opportunity to think deeply about what they want from the Supreme Court. Conservatives, of course, would have fought for Kavanaugh whether he was a stalwart Clarence Thomas or a wandering Anthony Kennedy. At stake were the principles of fairness and due process that should guide all of our institutions, even when they intersect with the #MeToo movement’s claims. The courts, Congress, federal agencies, state governments, and even the most delusional of our great societal institutions — the media and our colleges and universities — must not banish facts, proof, and the right to be heard.
But now that Justice Kavanaugh has assumed his seat on the Court, conservatives can take a step back and consider their agenda for the future. Democrats launched their scorched-earth war against Kavanaugh, an outstanding judge and distinguished public servant, precisely because his appointment promised a reliable fifth vote for a conservative majority. There’s a good argument to be made that conservatives have not had such a working majority on the Court since 1936. Even though Republican presidents have appointed the majority of justices since 1968, when Richard Nixon won on a law-and-order platform, their appointments have often “grown in office” and drifted leftwards. But the outrageousness of Democratic attacks on Justice Kavanaugh should guarantee that he will not follow in the path of Republican-appointed Justices such as Harry Blackmun, John Paul Stevens, and David Souter, who became lions of the Left.
The Supreme Court now has the opportunity to reconsider doctrines at odds with the Constitution’s original meaning. Before they devolved into an ugly political and personal brawl, Kavanaugh’s confirmation hearings revealed, among other things, the fault lines in American constitutional politics.
....
With the confirmation of Justice Kavanaugh, for the first time in generations there is a majority of justices on the Supreme Court who, to varying degrees, practice originalism and textualism. This means that the Court can systematically begin to restore the Constitution to its original meaning. This constitutional restoration does not mean that the Constitution’s original meaning is the best choice from a policy perspective on any given issue. It means that the people get to decide what is best, and the Supreme Court is bound to follow their will. The Court has no authority to diverge from the Constitution’s original meaning, only a duty to return to it until the people decide otherwise. And with the Court’s new makeup, a day when it once again sits atop the “least dangerous” branch of government is within sight.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
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