USA Today and the Cincinnati Enquirer recently published op-eds from Mark Weaver from our company. Topic: the Kavanaugh nomination amid the 150th anniversary of the 14th Amendment. Read below or click here.
Opinion: Will Kavanaugh act like a legislator or a judge?
By Mark R. Weaver
Although Brett Kavanaugh was nominated to be a Supreme Court justice, he’ll actually have his choice of two different jobs – a judge who resolves legal disputes or a legislator who makes policy. The approach he selects will be driven by his view of the 14th Amendment, which was added to the Constitution 150 years ago this week.
Ratified amid the gusts of national changes following the Civil War, the portion of the amendment known as the equal protection clause was essentially intended to guarantee equal rights to newly freed slaves. There are academic tussles about this idea, but nearly everyone agrees federal judges have gone much further than that.
Some jurists who prefer a different policy outcome, shall we say, liberally use the amendment to strike down laws passed by state legislatures. In fact, federal judges invoke it as often as dads employ bad jokes. But while dad humor can be amusing, there’s nothing funny about how misuse of the equal protection clause has shifted power from the people to the unelected federal judiciary.
Since the high court is largely split over how to apply the 14th Amendment, this debate is timely. As the court’s last term ended, some claimed justices “weaponized” the First Amendment. I disagree. A stronger case can be made that the 14th Amendment has been used that way. In a constitutional framework of checks and balances, this particular provision is a check – a blank check.
Kavanaugh certainly understands that the Constitution was drafted to strike a careful balance between state and federal power – the relationship better known as federalism. The term relationship is apt. On minor issues, federal and state leaders quarrel like siblings, and, on major ones, they fight like ex-lovers. If it’s misused by a Justice Kavanaugh, the equal protection clause will exacerbate those disputes and weaken our republic.
To a cloistered judge, it’s no doubt intoxicating to have this or that social movement praise you as their savior. Just ask Justice Anthony Kennedy, whose retirement tributes include fulsome thanks for giving constitutional support to same-sex marriage, after wielding – you guessed it – the equal protection clause. We saw similar farewell toasts to Justice Harry Blackmun, who, as the author of Roe v. Wade, unpacked the clause and discovered a pair of forgotten socks, some loose change, and a constitutional right to an abortion.
My argument is not that those two results are necessarily bad policy. Rather, in a representative democracy, thorny issues like gay marriage and whether women can legally abort their unborn children are best left to the elected, accountable representatives of the people – not to judges. Policies passed with such democratic accountability are more likely to be accepted by the nation than policy conjured by judges using the 14th Amendment as a magic wand.
This became clear to me in grad school where I spent an entire semester discussing the meaning, application, and history of the 14th Amendment. That class convinced me that local governance by state lawmakers is better governance than that offered by black-robed intervenors in Washington. This notion is more than just common sense – it’s a floor joist of American government, firmly parallel to other foundational concepts like separation of powers and rule of law.
In 1835, French author Alexis de Tocqueville toured our nascent nation. He showed aptitude for both observation and prophecy when he remarked that, in America, every political issue ultimately becomes an issue for the courts. He pronounced this 33 years before the 14th Amendment would make his reflection truer and the proof of it more commonplace.
Political questions belong in state legislatures, where, as a voter, you can toss out the rascals who pass laws you oppose. When policy issues come before unelected, life-tenured federal judges, the delicate balance of American law and government tilts against accountability.
In his confirmation hearing for the Court of Appeals, Kavanaugh endorsed using the equal protection clause to get the right result yet, he has yet to employ judicial fiat to substitute his own policy choices for those of state legislators. These mixed views are worthy of discussion.
The president made his choice. Kavanaugh now has a choice: will his role on the Supreme Court be the toadying showmanship of a lawmaker or the quiet reflections of a judge? An expansive reading of the amendment we remember this week could make Kavanaugh a giver of laws while an interpretation more in line with separation of powers and federalism will make him a guarantor of justice.
Mark R. Weaver is the former deputy attorney general of Ohio. He is a lawyer and author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver