Our hearings in the Senate prove that Brett Kavanaugh has a prodigious memory. Is that why precedent is such an important category for him? Precedent is a special type of memory. For this Judge to call forward precedent as he does, however, is dangerously misleading. Those who decide the future of the Supreme Court had better resist his recourse to it. Here is why.
Common experience — yours and mine — tells that memory is incomplete. Always. The history to which it refers is a vast pool. Almost everything is literally precedent. There are a few exclusions from this rule. Choice interrupts precedent. Consequences flow from it. By nature, habit, and by choice each person and every nation selects — and must select — from what has happened. Through historical triage memory clings to life. What appears to guide the law’s hand is often guided by another one. There are inevitably cloaked activisms in the rule of law. And, yes, the Conservative’s struggle to keep present their past contains a paradox, for the Originalist is as much engaged as the Progressive who openly seeks to add the forgotten to the memorable.
In other words, invocation of precedent is not what it seems to be. It is not a call to passivity or even to deference. It is a very powerful type of agency. It is something performed on the body of history to build and manage memory in favor of the living. At least some of us.
Although history is a human thing, no one chooses exactly the circumstances that shape their own action. Every experienced Judge is acutely aware of this. Nonetheless, to invoke precedent is not only to uncover the specific contexts that will give meaning to a decision. To affirm precedent is also to create those contexts. Citizens, as we make our own history, we often do that making through the courts.
So it is in all human experience: we make and are made at once. It is in this corso and ricorso of ruling and being ruled that precedent comes to weigh upon us, even when the moment and the challenge are vivid and new.
Nominee Kavanaugh insistently recurred to an image of precedent. He declared that deference to it is imposed upon him by his dedication to the Constitution. He supposes further that a certain type of conservatism inheres in our fundamental law.
In these assertions Brett Kavanaugh shows us just the smallest tip of a very big iceberg. Senator Booker pushed back against the Judge’s protestations. His probing questions made clear that for this person seeking a lifetime appointment to the Supreme Court precedent is a vehicle for activism. It became evident that Judge Kavanaugh is deeply committed to selecting what will count as precedent and what will be ignored.
Dig deeper. For in fact Judge Kavanaugh seeks to actively manage the force of precedent the way a channel directs the flow of a mighty river. Anyone who watched the hearings is equipped to recognize this. As does the witness himself.
Follow the Judge’s testimony. He frequently returned to long wrought and hard fought judicial practices meant to prevent precedent from running rampant and overwhelming us. He is hardly alone in recognizing and even applauding this fact. Jurists typically acknowledge that the past is a suit not a strait-jacket and “the Constitution is not a suicide pact.” In practice, even those who claim that allegiance to precedent is their highest value know that it, too, must be checked and balanced.
Notice that by writing this way I turn a familiar question of politics and law on its head. That question is How can power be restrained? This topic has in fact been at the center of resistance to the nominee — it appears prominently in discussions about “presidential power” and “separation of powers” because Judge Kavanaugh’s hidden record around the administration of George W. Bush is especially alarming. In this light, the ordinary view is that precedent checks and balances the arbitrary will of a powerful person like a Justice of the Supreme Court.
Yet Kavanaugh quietly and explicitly conducted us to the opposite. My purpose here is to amplify this one of his several contradictory voices. For sometimes it is the force of precedent that must be checked by judgment. This occurs when the errors or anachronisms of history — such as with Plessy v. Ferguson — lead us astray. The core of our system of government is that every balance needs another balance in turn, and that only the Constitution is the final arbiter.
The accurate and objective view is that judicial reality runs both ways: history and judgment are gnarly partners in the arena of civil contestation. To deny this — as when someone says “I adhere strictly to precedent” — is not an argument. It is a strategy of obfuscation.
The iceberg under Kavanaugh’s tip appeared for another moment in an exchange with Senator Harris. Hearing the nominee defer with studied humility to “a team of nine” or to the one hundred and thirteen Justices since the founding, the Senator feared nonetheless that the Judge’s personal beliefs have already and will from the bench of the Supreme Court point the arrow of his judicial practice. And so Harris intended to air a very large topic. What, we must ask, is willed by judges and what is not? Here again is that question of restraint on power.
“As a factual matter,” she asked, “can five Supreme Court justices overturn any precedent at any time if a case comes before them on that issue?”
The palpable tension in their exchange remained nearly tacit. We may paraphrase the Senator’s purpose as follows: You, Judge, point to an obstacle; that obstacle is easily cast aside; for that reason I want the public to know that your demurral from the exercise of power is unconvincing.
This put the nominee in an interesting position. No one believes that precedent trumps everything. To show the power of settled law over judicial will Kavanaugh facilely declared that precedent, too, is willful. In other words, it is not a machine that runs by itself.
You may have missed this move because, as with much of Kavanaugh’s testimony, the manner of his response was more telling than its sparse content. In reply to the Senator the Judge immediately associated precedent with procedure. His reply was typically digressive. It began this way: “You start with the system of precedent that is rooted in the Constitution….”
Keep in mind that Harris was headed in the opposite direction. It made sense for her to ask what anyone would want to know: is all this talk about precedent just a smokescreen for Judges to proceed as they wish, and to diminish their responsibility for what they decide? Isn’t it true, she said again, that “five justices, if in agreement, can overturn any precedent?”
What Harris did not do was to draw attention to what we consider here. She did not ask us to reflect on how innovation can arise, the way two negatives make a positive, when precedent is applied to precedent. “Precedent on precedent” is, of course, one of Kavanaugh’s sophistic innovations.
This is where Kavanaugh toed his line. “There’s a reason why the Supreme Court doesn’t do that…” he said. He gestured to “a series of conditions, important conditions, that if faithfully applied make it rare” for the Court to reject precedent. He offered as fundamental “the system of precedents rooted in the Constitution.” He declared that precedent is “not a matter of policy to be discarded at whim.”
Think carefully about this. It is a crucial point. Kavanaugh seemed to be arguing the other side against Harris. He seemed to be telling us about the impersonal compulsion of precedent by contrast to the wishes of the judge or the legislator. Precedent is not like “policy,” he said, which can as easily be voted out as voted in by a sovereign will.
Yet, hand in hand with all that, the Judge conceded that precedent can be discarded if this is done in the right way. That is because precedent, too, is a type of agency. Not just in how it is made by specific people in particular circumstances in the course of entering judgments. Not just in how each judge selects from the manifold of past ideas and experience. But in the minute by minute, line by line, ruling by ruling management of how precedent is brought to bear against one will and brushed away by another.
The appeal to precedent, then, is not a humble abdication of agency. Remember: no one chooses exactly the supporting circumstances by which their will succeeds or fails; the human environment is rife with unintended consequences of action.
That said, there is more. For precedent’s starring role comes after the judgment, after the act. It returns to the stage where argument and justification seed the ground of responsibility. The Conservative advocate, for the moment still adherent to the rule of law, shifts the locus of responsibility for innovation under the veil of precedent. Its invocation can be a winning strategy of plausible deniability.
With the nod to precedent the judge declares “I did not do it.” With the trumpeting of precedent the nominee adverts “I will not do it.”
It is therefore possible for invocation of precedent to play into extraordinarily cynical shifts of agency and evasions of responsibility. This is the case with Judge Brett Kavanaugh and one need not open the pages of his jurisprudence to discover it. In the full light of public hearings he wore it on his sleeve. If I do not answer your questions, he appeared to say, it is because “nominee precedent” requires that I hold my tongue.
Now consider this. “Nominee precedent” does not exist. It is not something handed down. It is not a doctrine or a rule or a tradition. It has no legal status whatsoever. It is entirely an invention of Brett Kavanaugh. It may appear to be a stand-in for what is sometimes called the “Ginsburg rule.” Except for this crucial difference: where others have been reticent to comment on ongoing cases, Kavanaugh expands hesitation into total silence.
His language is inventive and telling. It is intended to close the door on genuine debate. The trick is that, by calling his view of what other nominees have done in their own confirmation hearings precedent, Kavanaugh borrows an unearned authority from genuine legal doctrine to bolster his political posturing.
Remember. It was this same legal doctrine of precedent that Kavanaugh repeatedly traced to the Constitution. Consider the analogy. It is utter nonsense to assert that nominees must not say what they believe the way a judge must not wantonly override other judges.
And then it’s the iceberg again. For what we have just seen is that exactly what Kavanaugh does not allow to the legal doctrine of precedent — that it can or should overcome all agency — is what he demands from the “tradition” of “nominee precedent” that he himself has just invented .
As the saying goes: you can’t have it both ways. While Judge Brett Kavanaugh has been much-lauded for cultivating stability he seems to inhabit a topsy turvy world. Deferential to get his way, aligning with precedent to overwhelm it, even this flexibility disappears in the face of a precedent that is not really one. Then, with a wink, he leads us to believe he is only submitting to its legitimate rule. This is not the steady hand of a virtuous judge; it is the iron fist of an ideologue. It’s a disingenuous denial and a disgraceful lie.
Peter Alexander Meyers is the founding director of The Civic Inquirer, an organization designed to shift the course of everyday public disputes by identifying authentically civic interests and strengthening the voices that seek to sustain them.Dr. Meyers is Professor of American Studies at the Sorbonne Nouvelle in Paris.