This is What I Want In a Supreme Court Judge

by Steve MacDonald

Supreme_Court_Building_at_DuskMost of the copy I’m reading on SCOTUS nominee Kavanaugh revolves back to a common point. The guy is a textualist who opposes a reimagining of the separation of powers.  That includes courts and bureaucrats who too often think they get to decide what things mean instead of making Legislators do it.

Kavanaugh is a committed textualist. As Kavanaugh succinctly stated in a book review published in the Harvard Law Review, “The text of the law is the law.” He has reiterated this view in many of his opinions.

These excerpts from The Daily Signal seem to capture the overall feel for Kavanaugh’s approach.

In Fourstar v. Garden City Group, Inc. (2017), he wrote, “It is not a judge’s job to add to or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.” And in District of Columbia v. Department of Labor (2016), he write, “As judges, we are not authorized to rewrite statutory text simply because we might think it should be updated.”

Kavanaugh is a critic of Chevron deference, under which courts show considerable deference to executive branch agencies in interpreting arguably ambiguous statutes. In his view, “Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”

And in 2017, while delivering the Joseph Story Distinguished Lecture at The Heritage Foundation, Kavanaugh spoke eloquently about the judiciary’s essential role in maintaining the separation of powers and concluded:

Statutory interpretation is inherently complex, people say. It is all politics anyway, some contend. I have heard all the excuses. I have been doing this for 11 years. I am not buying it. In my view, it is a mistake to think that this current mess in statutory interpretation is somehow the natural and unalterable order of things. Put simply, we can do better in the realm of statutory interpretation. And for the sake of the neutral and impartial rule of law, we must do better.

I’m still dogging around the dumpster fire that is the internet to learn more, but if a Justice Kavanaugh can manage to be this guy most of the time, that is a significant win for the Republic.

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