Brett Kavanaugh Is an Originalist
The only thing we learned about Judge Kavanaugh's jurisprudence from his partisan sideshow of a confirmation hearing is something we already knew: that he is an “originalist” in the mold of Justice Scalia. Originalism has always had a respected place at the table of constitutional interpretation. One of the most renowned of all originalists was Chief Justice Roger Taney, who wrote the infamous 'Dred Scott' decision.
September 20, 2018 at 11:57 AM
7 minute read
Unfortunately, the questioning of Judge Kavanaugh became a “gotcha” partisan sideshow. The only thing we did learn about Judge Kavanaugh's jurisprudence is something we already knew: that he is an “originalist” in the mold of Justice Antonin Scalia. This tells us that he will follow precedence if it suits his purpose, but that if he disagrees with the outcome he will ignore precedence and apply his brand of “originalism.”
“Originalism” is a respected judicial perspective, embraced by the four “conservative” members of the current Supreme Court. In a recent speech before the Federalist Society, Justice Neil Gorsuch said: “Tonight, I can report that a person can be both a publicly committed originalist and textualist and be confirmed to the Supreme Court of the United States. Originalism has regained its place at the table of constitutional interpretation.”
The fact is that originalism has always had a respected place at the table of constitutional interpretation. One of the most renowned of all originalists was Chief Justice Roger B. Taney, who led the court from 1836 to 1964. Taney wrote the infamous Dred Scott decision, which held that black people were property—mere chattels. Although he did not believe this personally, Justice Taney believed, as all originalists believe, that judges should interpret the law as written in accordance with the meaning and understanding of the founders at the time the words were written—even if a judge does not necessarily agree with the outcome.
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