I think it’s fair to read this passage from a speech delivered last year to AEI as, shall we say, “Roe-skeptical.” Although (a) naturally it’s much more circumspect than what you might hear from Mike Lee on the Senate floor, befitting the different roles of a federal appellate judge and a U.S. senator, and (b) it’s not so overtly “Roe-skeptical” as to give us a strong clue about whether Kavanaugh would overturn the decision. Is it enough for him that “the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition” was stemmed by the Rehnquist Court, with no need to upend stare decisis in order to revisit the worst judicial excesses before that?
Or does Roe need to die?
From his speech:
In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by the courts only if the asserted right was rooted in the nation’s history and tradition. The 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote the opinion for the Court saying that the unenumerated rights and liberties protected by the due process clause are those rights that are deeply rooted in the nation’s history and tradition. And he rejected the claim that assisted suicide qualified as such a fundamental right.
Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.
What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either in Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.
The quote being circulated today by lefties is Kavanaugh’s claim that Roe was part of a trend towards “freewheeling judicial creation of unenumerated rights,” but that’s the least controversial part of that passage. Of course it involved judicial creation of unenumerated rights. Pop quiz: Where does the following excerpt come from?
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects…
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.
As my pal Karl pointed out earlier today on Twitter, that’s Sandra Day O’Connor writing for a majority in Planned Parenthood v. Casey, the decision that upheld Roe. She’s telling you as plainly as she can there that, although legal and cultural traditions are useful to judges in guiding their thinking of unwritten constitutional rights, in the end it’s their own “reasoned judgment” that decides the matter. “Judicial creation of unenumerated rights,” just like Kavanaugh said, by the Casey majority’s own admission. At worst, progressives might argue that unenumerated rights aren’t “created,” they’re recognized. They belong to the people as a matter of what’s properly due in a free society, whether or not Brett Kavanaugh feels like admitting it. But in our system, in which the Constitution is what the Supreme Court says it is, that’s a philosophical distinction without a practical difference. You can claim that the right to kill your fetus is fundamental and owed to you whether or not five justices disagree, but if five justices do disagree then you’re not going to exercise that alleged right without sanction.
What makes the passage “Roe-skeptical” isn’t his claim that the Court “created” the right to abortion, it’s his cautiously pejorative references to that process. It wasn’t just that judges created a right in Roe, Kavanaugh says, it was that it was part of a “freewheeling” judicial trend at the time. It’s hard to imagine a judge, particularly a conservative judge, ever using “freewheeling” as a compliment to describe a turn in jurisprudence. More significantly, Kavanaugh doesn’t merely say that Roe involved judges creating an unenumerated right; he says they created a right that was “not rooted in the nation’s history and tradition.” That is, he’s contrasting the ruling in Glucksberg, with which he obviously agrees, with the ruling in Roe, going so far as to suggest that it’s impossible to reconcile the two. His view seems to be a la Rehnquist that judges should recognize an unenumerated right only if it’s “rooted in the nation’s history and tradition,” exactly the sort of limitation that O’Connor sidestepped in Casey. It’s perfectly fair, I think, for opponents to read that as evidence that Kavanaugh thinks Roe was wrongly decided; it’s not fair to treat it as proof that he’d overturn 45 years of precedent to reverse it.
But it’d be silly to object too strenuously to them doing that, no? Trump has vowed to appoint judges who’ll overturn Roe; Mike Pence said on TV two days ago that he hopes the Court will overturn Roe; movement conservatives who were cheering on Barrett not only hope but expect that Kavanaugh will overturn Roe. Turning around and getting huffy at liberals for daring to glean from the AEI speech that he really might overturn Roe would be bizarre. I understand that it’s all part of the confirmation-hearing tapdance, in which we must protect the nominee’s strategic ambiguity on abortion at all costs, but it’s a farce. Of course Kavanaugh might overturn Roe. It’s not crazy to treat the AEI speech as evidence, albeit not proof, of it.
If you want the lefty take on his speech, by the way, read Jay Michaelson at the Daily Beast. (He was last seen wringing his hands over Leonard Leo’s involvement in a supposedly shadowy cabal — the Knights of Malta, which will make Catholic readers laugh.) He comes to the same conclusion I do: Kavanaugh clearly thinks Roe was wrongly decided, although less clearly believes it should be scrapped. But he takes the same glib approach to the question of whether the right to abortion is “rooted in the nation’s history and tradition” as most progressives do, insisting that there is in fact a tradition of the state not being allowed to meddle with one’s bodily autonomy via regulation. True, but the singular fact about abortion is that there isn’t one body involved; the state isn’t attempting to prevent you from having your tonsils removed, as much as Michaelson would like to analogize a fetus to body parts and internal organs. He’s begging the question of whether a baby in gestation constitutes a life whose protection justifies state interference in a way that wouldn’t be justified in any other biological matter.