Unlike plenty of other bloggers, I somehow have not felt the need the past couple of days to spend hours watching the Senate Judiciary Committee hearings on the Kavanaugh nomination. After all, the chance that these hearings will change anyone's mind is about zero. But I do admit to being surprised that the hearings have gone well beyond the usual tiresome repetition of rehearsed talking points, and into something fairly described as a freak-out, complete with frequent interruptions from paid protestors in the audience, and shouted and overtly hostile demands and questions even from many of the Senators. Clearly the opposition to Kavanaugh, despite lacking the votes to block his confirmation, cares deeply about doing everything possible to stop him.
Well, I guess that's what you get when the Supreme Court has been politicized. But for readers who may not understand what it really means for the Court to be "politicized" -- and even for some readers who do, but don't know all the details -- I thought it would be useful to lay out in one place some of the main issues at stake. Here's the fundamental question: Will the progressive project to create a world of perfect justice and fairness through government action march forward unimpeded, or will it meet a series of obstacles set up by the Constitution and enforced by the Supreme Court?
The first issue is the most obvious, namely using the Court as a vehicle for enacting into law some current priority of the progressive left that Congress or state legislatures seem unwilling to pass, at least at the moment. Exhibit A, back in 1965 was Griswold v. Connecticut (declaring a constitutional right to access to birth control), followed by Exhibit B, Roe v. Wade, in 1973, that announced the constitutional right to abortion. The abortion issue uniquely seems to raise very high levels of emotion on both sides of the debate, although I would not think that Roe v. Wade is much at risk from having Kavanaugh on the Court. The bigger question is what happens with new such issues that come along. In 2015 it was gay marriage, deemed by the Court in Obergefell v. Hodges to be mandatorily available in all 50 states in a 5-4 opinion, with the majority including Justice Kennedy. Who knows what the next such issue may be? With Justice Kavanaugh on the Court, I would not anticipate much success for those currently at work cooking up new such constitutional rights.
Meanwhile, here in New York State, our Court of Appeals declined to find gay marriage as a constitutional right. Advocates thereupon put on a big political push, and within a few years, the state legislature had passed the statute authorizing gay marriage. Isn't that a much better way to go about this, consistent with principles of democracy and self-government?
A number of other issues go to the question of the powers of federal bureaucrats and administrators to go about running the lives of the people outside of the strictures of the Constitution. Here are some of the main examples:
- Independent Agencies. Somehow, our federal government has come to be riddled with agencies that don't report or answer to the President, at least in their own minds. Examples (from a long list) include the FTC, Federal Reserve, SEC, FCC, CFTC, CFPB, FEC, FERC, NRC, NLRB, and I could go on. Try to read the Constitution and figure out how this could happen. If an agency doesn't answer to the President, how can the people have any influence at all on that part of the government through elections? The idea that such agencies are "independent" from the President traces back in part to the statutes creating to them, and more importantly to a Supreme Court case from 1935 called Humphrey's Executor, which I have criticized here and here. Judge Kavanaugh actually wrote a lengthy concurring opinion on the subject of Humphrey's Executor in a 2011 case called In re Aiken County. That case involved President Obama's withdrawal of an application to the Nuclear Regulatory Commission to store nuclear waste at a repository in Yucca Mountain, Nevada, and the NRC's denial of the attempted withdrawal. So wait, a commission with no foundation in the Constitution gets to overrule the President on an executive action? Yes, this is the bizarre situation that our government has come to. Anyway, Kavanaugh's concurrence does not explicitly suggest overruling Humphrey's Executor (although some suggest he was sending a signal that he would) but does suggest some ways to limit it or get around it. Hey, like maybe the President should issue a direct order, and then if the commission resists, declare that that is "cause" and you're fired. You can start to see that people who think that the permanent bureaucracy ought to be able to implement the progressive vision without a President getting in the way, or to "resist" the policy desires of the President (when he is the wrong guy), might see Kavanaugh as a serious threat.
- Takings/Contract Clause. A commenter on my most recent post from Tuesday asked how it could be that rent control is not a "taking" under the Fifth Amendment, therefore requiring that "just compensation" be paid to the lessor of the apartment. Excellent question! The answer traces back to a 1921 Supreme Court case called Block v. Hirsch, which upheld post-World War I rent control in Washington, D.C. on the following logic: "[T]he exigency existing in the District clothed the letting of buildings there with a public interest so great as to justify regulation by law, i.e., by the police power of Congress -- while such exigency lasts." All right, then! If it's an important enough "exigency" we can just do away with the just compensation requirement and take whatever we want for free! Believe it or not, that is the entire basis for rent regulation here in New York, which continues some 71 years after the supposed "housing emergency" was declared back in 1947. Similarly, the Contracts Clause of the Constitution flatly prohibits the states from altering contractual obligations ("No State shall...pass any...Law impairing the Obligation of Contracts...") At least until the state of Minnesota, during the depression, declared a blanket moratorium on paying home mortgages. The Supreme Court said that was just fine, in a 1934 case called Blaisdell. Following Blaisdell, additional damage to the constitutional order continues to be done today, notably in state actions to forestall mortgage foreclosures during and even after the recent financial crisis. Overall, the law on these topics is ridiculously complex and inconsistent, where it should be easy and straightforward. A Justice Kavanaugh could make a big difference.
- Non-delegation doctrine. Our Constitution makes it quite difficult for Congress to pass a law. Two bodies, selected by different methods, must pass bills of the exact same words; and then the President must sign. Otherwise, they can't tell us what we can and can't do! Oh, except that somewhere along the line it became OK for Congress to delegate to "agencies" the ability to write "regulations" that can impose legal obligations on us without anyone having to go through the lawmaking process. Huh? Basically, the Supreme Court has authorized this travesty with the sole proviso that the agency must be given some "rational basis" for its rule-making in a duly-passed statute. Justice Thomas has been a leader in calling out this charade. From his concurrence in Association of American Railroads (2015): "Congress improperly 'delegates' legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power." At present, the Supreme Court's jurisprudence imposes no meaningful limitations on the ability of Congress to turn over their authority to legislate to the bureaucracy. It's not hard to envision how some real restrictions in this area would undermine the progressive project to bring about perfect fairness and justice through micromanaging the people's lives.
- Environment/climate. Perhaps this is just a particular example of the previous point, but it is a very important example. Congress passed the Clean Air Act back in the early 1970s, a time when nobody envisioned that CO2 was any kind of a problem, let alone "not clean." Decades later the executive seeks to use that Act to effect a fundamental transformation of the entire energy sector of the economy, including closing down all coal mining and all power generation using coal. By "regulation," all coal-fired power plants must be closed and replaced. It is highly likely that a Supreme Court with Merrick Garland on board would go along with this, because of the perceived overriding importance, in the progressive vision, of "saving the planet" through efforts to stop climate change.
It's not that Kavanaugh is really likely to lead a charge to do away with all of these bad precedents. Rather, the issue is that when the next wild bureaucratic overreach comes before the Court, Kavanaugh is likely to be a vote in favor of maintaining the constitutional structure and against the alleged "necessity" of allowing some progressive overreach to continue. And they had thought they had the Court in their pocket forever. Now it may slip away for a generation or more. No wonder they are freaking out!