Supreme Court nominee Judge Brett Kavanaugh meeting visits the Capitol Building in Washington, on Wednesday, July 11, 2018. Photo: Diego M. Radzinschi/ALM

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.

Taney expressed the belief that the Constitution was drafted with certain notions on the part of the founders which, at the time he wrote Dred Scott, seemed to him to be unjust. Speaking of members of the “black race,” he wrote: “It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time the Declaration of Independence, and when the Constitution of the United States was framed and adopted.”

Taney's words could stand as a mission statement for today's originalists, he wrote: “The Court should not give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.”

Taney did exactly what an originalist said should be done. He explored the attitudes, state statutes, literature and history of the time to accurately ascertain “what the public at the time would have understood the words” of the Constitution to mean. In other words, to determine what was the original intent and textual meaning of the words of the founders. He correctly noted that the states that condoned slavery would never have approved of a Constitution that would in any way diminish their right to own slaves. Taney understandably concluded that African-Americans were not among the “people” referred to in the Constitution.

Of course, the Thirteenth and Fourteenth amendments rendered the Dred Scott decision and its unconscionable results a nullity. But it should be remembered that it was written by a textualist/originalist judge—just the kind of judge that the Federalist Society admires. Chief Justice Roberts recently expressed disapproval of Dred Scott, comparing it to his court's opinion in Obergefell v. Hodges, which held that same-sex marriages are protected by the Constitution. He said that both decisions “went beyond the scope of the Constitution.” As it was written, Dred Scott actually followed the Constitution and lit the fuse for the Civil War by undoing the hard-fought compromises of 1850 and the Missouri Compromise, which had held the country together. Obergefell applied the due process and equal protection clauses to same-sex marriages. Originalists can somehow draw a jurisprudential equivalence.

There are other occasions when originalists have had the Constitution reflect their views as opposed the intent, words, and views of the founders: Take the way in which they treated the Eleventh Amendment to the Constitution. In 1792 a citizen from South Carolina sued the State of Georgia for a debt accrued during the Revolutionary War. The Supreme Court ordered the State of Georgia to pay the money to the South Carolinian, but the founders were unhappy with that result—they didn't want citizens of one state to attack the coffers of another state—so in 1794 they amended the Constitution to forbid the practice.

The intent of the Eleventh Amendment is clear in its declaration that “a citizen of one state cannot sue another state.” Nevertheless, when the conservative majority of the Supreme Court was asked to apply that amendment to a case relating to the Americans With Disabilities Act, it gutted a key provision of that act by holding that a citizen cannot sue his own state in federal court—something the Eleventh Amendment clearly does not say. Justice Antonin Scalia wrote that “despite the narrowness of its terms,” the amendment has been understood by the court “to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.” He went on, in that 1991 decision, to throw out a suit by Indian tribes claiming to have been cheated by the State of Alaska. Not only did Scalia the “originalist/textualist” fail to apply the meaning and text of the amendment, but he and his Supreme Court “originalists” colleagues on the Supreme Court also rewrote the amendment.

Judge Kavanaugh in his testimony continued to insist that he would adhere to precedence without recognizing that his “ideal” of a jurist, Justice Scalia, was a consistent follower of precedence until he didn't agree with it.  His decision in Citizens United v. Federal Election Commission, which struck down regulated campaign contributions by corporations overruled at least two prior Supreme Court precedents and over a century of First Amendment jurisprudence. Again, in writing the dissent in the landmark Planned Parenthood of Pennsylvania v. Casey,  Scalia castigated the majority for its “arrogant decision” saying “The Imperial Judiciary lives” and yet in the Bush v. Gore decision he tolerated the most activist judicial intervention imaginable when the Court cobbled together a decision in order to defend a desired political outcome. When asked to explain a decision which violated both precedent and the original intent of our founders when it came to state electoral processes (even  the conservative majority of the Court said its decision should not be used for precedence)  Scalia said: “Come on, get over it.”

During the confirmation hearing, we were told that judges should “follow the law not legislate.” This bumper sticker shibboleth states the obvious but says little. Of course, judges should follow the law and anchor their reasoning on stable precedence and the reasoning, intent, and language of the legislature and our founders when they enacted constitutional provisions. Judges should not resolve cases based on what happens to be popular or politically correct at the time—and they should certainly not decide cases based on their own moral convictions or what they believe might serve society best. When political considerations or one's own sense of what's best for society govern those decisions, that does a grievous harm to the integrity of an independent judiciary. On the other hand, it does an equal disservice to fashion the law on pretext or distortion of historic fact to justify a desired result.

Sol Wachtler is the former chief judge of the New York Court of Appeals, Distinguished Adjunct Professor of Constitutional Law, Touro Law School