Courts

Consummate Textualist Brett Kavanaugh Fails Basic Reading Comprehension In Affirmative Action Case

Kavanaugh bends over backward to pass the buck on his affirmative action vote.

By  
on
Dr. Christine Blasey Ford And Supreme Court Nominee Brett Kavanaugh Testify To Senate Judiciary Committee

(Photo by Andrew Harnik-Pool/Getty Images)

Justice Brett Kavanaugh loves beer, questionable ethics, and inspiring the FBI to bury tons of tips about sexual misconduct. But he also claims that he loves textualism. And who can blame him! Playing semantic games with statutory language to reverse-engineer a judge’s preferred policy result is almost as fun as playing semantic games with the mood of 18th century landed gentry.

So while Supreme Court precedent doesn’t hold the same weight as statutory text for the self-described textualist, demonstrating a remedial grasp of the English language should be table stakes for anyone posting up with their textualism hat.

… And then there’s Brett.

The Grutter Court rejected those arguments for ending race-based affirmative action in higher education in 2003. But in doing so, the Court struck a careful balance. The Court ruled that narrowly tailored race-based affirmative action in higher education could continue for another generation. But the Court also explicitly rejected any “permanent justification for racial preferences,” and therefore ruled that race-based affirmative action in higher education could continue only for another generation. 539 U. S., at 342–343.

“[R]uled that race-based affirmative action in higher education could continue only for another generation.”

Oh?

Sponsored

The text of the majority opinion in Grutter is as follows:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Aside from the baseless assertion that the Supreme Court can even institute a sunsetting ruling… how does “expect” translate to “only”? That’s just not what those words mean.

They could reflect some serious passive-aggression, as in “I expect to see this room cleaned by the time I get home.” But Kavanaugh strikes me and everyone but Senate Republicans as more of the active-aggressive type. Had Justice O’Connor written “The Fourteenth Amendment cannot sustain this ruling in perpetuity and these facts can only support at most a 25 year extension of acceptance that this policy survives strict scrutiny,” then he’s got an argument.

But she did not.

Sponsored

And it wouldn’t make sense in context because the two sentences before Justice O’Connor wrote those words were…

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased.

It’s an aspirational comparison! The last 25 years showed progress… we expect that will continue. But what if it didn’t continue apace? That’s a possibility that would’ve been top of mind for Justice O’Connor because her sentence models Justice Blackmun’s concurrence from 25 years earlier expressing his aspirational hope that everything would be fine in 10 years. Though that steps outside the text to consider easily graspable intent and that’s a bridge too far for textualists. Thankfully, the matter was settled without that leap.

Yet the nagging question remains: why? Why embark on this embarrassing line of reasoning. Kavanaugh didn’t have to say anything. None of the majority justices needed to contrive a tenuous link to Grutter. And if the majority did care about respecting precedent — it does not — Kavanaugh could just say that it’s been 25 years “and WE, the six justices ruling today, believe the use of racial preferences is no longer necessary.” O’Connor’s words would support the Court making that conclusion… but they do not mandate it. Instead, Kavanaugh devotes a whole concurrence to pointing at Sandra Day O’Connor and suggesting, “Look, if you want someone to blame for this opinion, it’s her, not me.”

Which is just clumsy intellectual cowardice. And in a sense, that makes this a quintessentially textualist opinion.

Earlier: The Affirmative Action Cases Went About As Well As You’d Expect Them To. What Now?

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, , , , ,