Kavanaugh and the politics of interpretation

Kavanaugh and the politics of interpretation
© Greg Nash

From the public record, it is evident that Supreme Court nominee Brett Kavanaugh has the legal preparation, experience and temperament to become an associate justice of the Supreme Court.

Given the current composition of the Senate and the changes made to its filibuster rules made at the time of Associate Justice Gorsuch confirmation, it is most likely that Kavanaugh will be confirmed to the Supreme Court. The early hopes of many that Sens. Lisa MurkowskiLisa Ann MurkowskiMurkowski celebrates birthday with electric scooter ride Overnight Energy: Park Service plans to pay full-time staff through entrance fees | Oil companies join blitz for carbon tax | Interior chief takes heat for saying he hasn't 'lost sleep' over climate change Democrats grill Trump Interior chief for saying he hasn't 'lost sleep' over climate change MORE (R-Alaska) and Susan CollinsSusan Margaret CollinsThe Hill's Morning Report - Trump says no legislation until Dems end probes Collins offering bill to boost battery research as GOP pushes energy 'innovation' Biden says Congress must move to protect abortion rights MORE (R-Maine) would vote against Kavanaugh’s confirmation appear misplaced. In fact, Collins declared last week that she felt assured that Kavanaugh was committed to the principles of stare decisis, and that Roe v. Wade was settled legal principle.


Legal principles, of course, are settled until they are not. There are innumerable instances in the history of the Supreme Court where previous opinions have given way to new understandings and rulings according to the dominant legal philosophy of a given Supreme Court majority. The best well known example of this change was the overturning of the separate but equal doctrine Plessy v. Ferguson (1896) by Brown v. Board of Education (1954). We are right because we are final, as then Associate Justice Robert Jackson pithily remarked, not final because we are right.

In the end, it is not necessarily a matter of argumentative persuasion between competing legal positions, but of the will of a momentary majority. A legal controversy does not take place in the setting of an academic seminar, where multiple points of view on a given issue can coexist and be celebrated as an instance of diversity and creativity. It requires finality and certainty.

Unsettled controversies if unchecked will eventually lead to confrontation and social and political instability, exacerbating divisions within the body politic. The contrary is also true. Controversies settled by institutional force, which are based on values and positions not shared by significant members of society corrode its legitimacy and threaten its long term vitality. Legal judgments need to navigate between these two extremes.

Stare decisis, or the rule of the precedent, as a criteria of legal continuity and certainty, is only one principle among others which impinge on a given case or controversy: constitutionality, changes in statutory law, general principles of justice and fairness, among others. The fact that the Supreme Court handed down an opinion decades ago, in and of itself, is not sufficient grounds for it to be continually upheld. At some point in time that opinion must be evaluated against current realities and change in circumstances, as the Supreme Court did in this past term in South Dakota v. Wayfair, Inc. (2018) when it revoked Quill Corp. v. North Dakota (1992) on the issue of state taxation of online retail and commercial transaction.  

Another example is the continuing validity of the so called insular cases in the early 20th century, Downes v. Bidwell (1901) and others, in which the Supreme Court created out of thin air, and contrary to the plain language of Article IV, Section 3, of the Constitution, the doctrine of unincorporated territories. These patently unfair and racist cases which justify the selective and discriminatory application of constitutional rights to its citizens in Puerto Rico, are stare decisis. I wonder if Collins believes these cases to be settled legal principles that should not be overturned.

The ongoing debate on legal interpretation, which conceptually pits a broad reading of certain constitutional texts as a means to temper their meaning to 21st century circumstances, against a strict or “original ” reading of the Constitution, which claims for itself a principled defense of democratic procedures, is at the heart of Kavanaugh’s confirmation hearings. These two interpretative currents are not necessarily mutually exclusive, although for purposes of public consumption they are usually drawn as if they were.

All legal interpretation occurs within the context of political discourse, and no actor — be it a judge or a politician — has a private access to truth. Reasonable people can, and do, differ on given issues. This does not imply that all legal interpretations are equally persuasive. How we distinguish a valid difference of opinion from purely rhetorical flourishes requires discernment and a shared commitment to discourse based on facts, rationality and legal tradition. In the age of President TrumpDonald John TrumpNASA exec leading moon mission quits weeks after appointment The Hill's Morning Report — After contentious week, Trump heads for Japan Frustration boils over with Senate's 'legislative graveyard' MORE, where truth is not truth, political polarization has become a matter of policy. The rule of law cannot long survive in this habitat. The Senate would do well to return to its bipartisan practices.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.