For the sake of our sanity, can’t we admit it, declare it, announce it or at least spit it out – it’s the job of the justices on the Supreme Court to interpret the Constitution. That’s what they do, they INTERPRET. They don’t “just read the text.”
Justice Elena Kagan has said “We are all textualists now,” meaning that when members of the Supreme Court make decisions they do so by reading carefully the applicable texts in the Constitution and take those words as the best and essentially the only way to arrive at a correct judgement.
Justice Kagan made that observation while giving the “Scalia Lecture” at Harvard Law School. And because Antonin Scalia was the most famous conservative Justice of his time, while Kagan is a moderate liberal, her declaration has become famous among conservatives as signaling the triumph of Scalia’s conservative approach to the Constitution.
The assumption of happy conservatives is that if liberals are now textualists, they’ll read the Constitution and come to the same judicial decisions that conservatives do. Of course, that overlooks the fact that all recent nominees to the supreme court have been saying that they simply read the law and don’t mangle or mutilate it, but still they rarely come to unanimous conclusions.
Recent nominee Brett Kavanaugh is philosophically conservative when it comes to judicial matters. He and other nominees can say that as justices they are neither Republican nor Democrat, neither liberal nor conservative, but that’s crap. There’s no other word for it. That’s not to say that Judge Kavanaugh is consciously and purposely biased as he goes about assessing the merits of a plea or a defense – he’s no more biased in those instances than, say, Justice Elena Kagan or Ruth Bader Ginsberg are biased liberals when deciding the same case as Kavanaugh.
As Brett Kavanaugh said of himself, he doesn’t live in a bubble – meaning he’s not separated from ordinary work-a-day mortals. As he pointed out, he regularly works in a soup kitchen, feeding the hungry poor; he coaches his daughter’s basketball team, he mentors young lawyers, especially women. I don’t have enough money to live in those neighborhoods where he’s likely to live, but I know he’d make a good neighbor. I could leave my house key with him when I went on vacation, so he could come in and water my plants. And, based on his record, I’d disagree with him on just about every political and social issue and regard his judicial views as reactionary, pro-the wealthy, pro-big business, pro-government, and against the poor, the unfortunate, the marginal.
It’s not Brett Kavanaugh’s fault that he was nominated by President Donald Trump because Trump and virtually everyone who cares believes that Kavanaugh’s opinions run against the Supreme Court’s standing decision on abortion. It’s not his fault that Republicans are backing him and Democrats are opposing him. There’s nothing ethically wrong with being conservative. What’s wrong is not admitting it. What’s wrong is that everyone knows or should know that the job of the Supreme Court is to decide cases in the light of the Constitution as they interpret that document. If all anyone had to do was to read the text, we wouldn’t need a Supreme Court.