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A Blog by John Kaempf

Why all the fuss? New U.S. Supreme Court Justice Brett Kavanaugh publicly promised last year to be a conservative, “originalist” justice like his “first judicial hero,” former Chief Justice William Rehnquist, who dissented in Roe v. Wade. This puts the constitutional rights to an abortion and gay marriage in doubt.

In a speech last year to the conservative American Enterprise Institute, Justice Kavanaugh spoke for about an hour about his “first judicial hero,” the late Chief Justice William Rehnquist, who was appointed to the Supreme Court by President Nixon in 1972 and served on the Court for 33 years.

Justice Kavanaugh confirmed his own  “originalist” approach to interpreting the Constitution, stating that it is “a document of majestic specificity.” Its “specific words have meaning.” He said that absent a constitutional amendment, “those words continue to bind us as judges,” rejecting the belief that the Constitution is a “living document” that must change with the times. He stated: “Who decides when it is time to create a new constitutional right? The Constitution quite specifically tells us that the people decide through their elected representatives.” He added that changes to statutes and the Constitution are to be made by the people directly and through the legislative process, “not by the courts snatching that constitutional or legislative authority for themselves.”

To reinforce his point, Justice Kavanaugh noted that when Chief Justice Rehnquist served on the Court, he rejected efforts by it to “enshrine its policy views into the Constitution,” and he saw the Court’s power as limited—“to interpret and apply the law as written—not by its own personal and policy predilections.”

Justice Kavanaugh said that while reading Supreme Court cases when attending Yale Law School, “I stood with Rehnquist.”

Justice Kavanaugh then cited “an extraordinarily important” Texas Law Review article Chief Justice Rehnquist wrote in 1976 called “The Notion of a Living Constitution.” Justice Kavanaugh quoted a passage from it stating that “however socially desirable the policy goals sought to be advanced might be, advancing them through a freewheeling, nonelected judiciary is quite unacceptable in a democratic society.” Justice Kavanaugh also highlighted Chief Justice Rehnquist’s statement that the Constitution does not put the popularly elected legislative and executive branches “in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Justice Kavanaugh said that Chief Justice Rehnquist’s “point was that it is not for a judge to add to or subtract from the individual rights or structural protections of the Constitution based on the judge’s own views.” Justice Kavanaugh said that it is “impossible to overstate” the significance of this article to him—which he read as a first-year law student—and how it caused him “to understand the role of a judge in our constitutional system.” He said that “in my view, Rehnquist’s article is one of the most important legal articles of all time.”

Chief Justice Rehnquist’s article further states: “A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution.” His article rejects the idea that judges “have a role of their own, quite independent of popular will, to play in solving society’s problems.” It cites the statement in President Lincoln’s first inaugural address that “the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Chief Justice Rehnquist also wrote in the article Justice Kavanaugh effusively praised last year that a belief in a “living Constitution” is “a formula for an end run around popular government,” which “is genuinely corrosive of the fundamental values of our democratic society.”

Concerning abortion, Justice Kavanaugh emphasized that Chief Justice Rehnquist dissented from the Court’s 1973 majority opinion in Roe v. Wade, stating that “any such unenumerated right” (to abortion) “had to be rooted in the traditions and conscience of our people,” and “Rehnquist said he couldnot reach such a conclusion about abortion.”

So, if your “first judicial hero” dissented in Roe v. Wade, and you are a constitutional “originalist” who believes major policy decisions should be made solely by the people— directly or through their elected representatives—how are you going to rule if faced with the opportunity to overrule Roe v. Wade? The answer seems clear. The same point applies to the constitutional right to gay marriage recognized by the U.S. Supreme Court in the 2015 Obergefell v. Hodges decision. Abortion, a “right to privacy,” and gay marriage are not mentioned in the U.S. Constitution.

ABOUT THE AUTHOR

John Kaempf is a trial attorney who has been honored as one of “America’s Top 100 Attorneys” and one of the “Best Lawyers in America.” For 26 years, he has defended lawsuits against churches and religious schools, including child sex abuse cases, throughout the country.

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In Masterpiece Cakeshop, the U.S. Supreme Court ruled for a Christian baker in Colorado who sells his goods to anyone, but refused to create a cake for a gay wedding due to his sincere religious beliefs. The Court, however, avoided deciding the broader first amendment legal issues. Oregon’s Sweetcakes By Melissa case, which involves less overt government hostility to religion than Masterpiece, may be the case that requires the Court to decide these issues for the nation.

In June, 2018, the U.S. Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, two men came into the small Colorado bakery owned by Jack Phillips, a devout Christian, to order a customized cake for their same-sex wedding. Mr. Phillips sells his premade goods to anyone. He politely told the couple, however, that he would not (1) create a cake (2) for their gay wedding because of (3) his religious opposition to gay marriage. The couple filed a charge with the Colorado Civil Rights Commission, alleging sexual orientation discrimination in violation of the Colorado Anti-Discrimination Act. (A version of the statute exists in many states.) Colorado ruled in favor of the couple, but the U.S. Supreme Court reversed. Continue reading

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In NIFLA v. Becerra, the U.S. Supreme Court held that a California law requiring pro-life Christian pregnancy centers to advise women that California provides free abortions violates their first amendment rights. This is a big win for supporters of the rights to free speech and to freely exercise religion.

In June, 2018, the U.S. Supreme Court, in a case called National Institute of Family and Life Advocates “NIFLA” v. Becerra, addressed a challenge to a California law called the Reproductive “FACT” Act. It was enacted to regulate crisis pregnancy centers. They are “pro-life (largely Christian belief-based) organizations” that “aim to discourage and prevent women from seeking abortions.” The FACT Act states that centers that do not perform abortions must provide this prominent, pre-written notice to clients: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services including ***abortion for eligible women.” Continue reading

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Supreme Court Justice Anthony Kennedy announced his retirement. President Trump nominated Federal Appellate Judge Brett Kavanaugh, an establishment conservative, to replace Justice Kennedy. Judge Kavanaugh will likely be confirmed because Republicans control the Senate at least until this November’s mid-term elections. However, a heated confirmation battle is expected. This is because he will change the balance of the court to a 5 to 4 generally conservative majority. This should positively affect religious freedom and free speech rights. It will also revive the debates over abortion and gay marriage.

Justice Kennedy announced his retirement this summer. He was a moderate “swing” voter. He was appointed by President Reagan in the 1980s and confirmed when Democrats controlled the Senate. He often provided the decisive fifth vote in groundbreaking cases. For example, he was the deciding vote in favor of gay marriage, and wrote the Obergefell majority opinion. In 1992, he rejected the opportunity to overturn Roe v. Wade and the right to an abortion.

President Trump nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill this vacancy on the nine-member Court. Judge Kavanaugh follows the principle of “originalism” in interpreting the Constitution. Its major champion, Justice Scalia, defined it this way: “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.” Continue reading

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