Judge Brett Kavanaugh thinks he’s a cop. His beat is separation of powers.
“If you were in my judicial chambers, you would hear me often saying to my clerks: ‘Every case is a separation of powers case,’” he told a Heritage Foundation audience in February. “That question of policing the balance between the Legislative and Executive Branches … constitutes one of the most critical separation of powers issues in American law.”
Kavanaugh patrols the streets, every day, looking for signs of inappropriate mingling between the branches and slapping on the handcuffs when someone oversteps.
And how does Kavanaugh know when to make an arrest? When the Constitution tells him to. “[O]ne factor matters above all in constitutional interpretation,” he told a Notre Dame law school audience in 2014. “[T]he precise wording of the constitutional text.” Kavanaugh maintains this approach “is politically and policy neutral.”
In practice, what this often means is that Kavanaugh is the stop-and-frisk cop of the regulatory state. He believes that many of the actions taken by independent agencies looking to protect Americans’ rights, safety, health, and money — such as those ranging from the Equal Employment Opportunity Commission to the Environmental Protection Agency to the Consumer Product Safety Commission to the National Transportation Safety Board to the Federal Deposit Insurance Corporation — may violate the Constitution’s separation of powers clause.
But here’s the irony. James Madison’s creation of the separation of powers was intended to keep the rise of parties and excessive partisanship at bay. And yet Kavanaugh, who has spent much of his career advancing Republican party goals, was groomed by the party for his Supreme Court seat, moreso than any pick in recent memory. Despite his professed obsession with the separation of powers, his nomination, in fact, represents another death blow to Madison’s vision.
In a 2016 opinion, Kavanaugh outlined what he believes is now the largest affront to Madison’s conception:
The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.
That outlook led Kavanaugh to dissent from a January ruling by the D.C. Circuit upholding the constitutionality of the Consumer Financial Protection Bureau, the agency created in the wake of the 2009 financial crisis to help stop Wall Street from ripping off ordinary Americans. Kavanaugh argued that the CFPB runs afoul of the separation of powers clause because it’s headed by one person, not by a multimember panel, and therefore isn’t sufficiently accountable to the president.
Kavanaugh used a similar argument in a 2008 dissent that would have struck down the structure of the Public Company Accounting Oversight Board, a nonprofit corporation created by Congress in the wake of the Enron and other scandals to protect the interests of investors. The board’s indirect accountability to the president, he wrote, is an impermissible overreach by Congress on the president’s ability to control the Executive Branch. (A 5–4 Supreme Court embraced his view.)
Kavanaugh also would have struck down the FCC’s net neutrality rules. In another dissent, he wrote that Congress had not clearly authorized the agency to promulgate such a major rule, which is the province of the legislative branch, not the executive. (In fact, as the majority pointed out, the Supreme Court unanimously recognized in a nearly identical case that Congress indeed delegated “unmistakable and straightforward” authority to the FCC to regulate Internet service providers.)
Still, to Kavanaugh, the issue was simple. “The Framers of the Constitution viewed the separation of powers as the great safeguard of liberty in the new National Government,” he wrote in dissent. “To protect liberty, the Constitution divides power among the three branches of the National Government.”
Once he’s on the Supreme Court, Kavanaugh will doubtless continue his separation of powers patrol. His jurisprudence in this arena is all “parchment barriers” — the parchment barriers being the Constitution and its text outlining the roles of the three branches of government.
Meticulously policing and enforcing these 230-year-old constitutional boundaries preserves, as Kavanaugh put it, “freedom from government oppression.” To Kavanaugh, the directive is to keep every branch of government in its box, a box that exists only on paper, and having done that, all will be well. A textualist drawn to the words — and only the words — of the Constitution, Kavanaugh clings to a structural, mechanistic vision of separation of powers.
Never mind that this has nothing to do with how government has operated since it was about a year old. Indeed, the very Founders Kavanaugh reveres instigated the system that undermined the “parchment barriers” which serve as his polestar. And, as we shall see, no one should understand this better than Patrolman Kavanaugh.
At the time the parchment barriers were created, the founders profoundly feared the rise of political parties. Clusters of party men (it was of course only men who had power), they worried, would pursue power at the expense of liberty.
Separation of powers was supposed to thwart the advancement of political parties. Men’s desire for power, Madison hoped, would be satisfied by advancing within a branch rather than accumulating power within a party. A career could be built striving for legislative branch power rather than party power: to wit, a Republican Senator would be more interested in senatorial power than in Republican power. Thus, the branches of government would check each other, fueled by the ambitions of men seeking power within each branch.
In perhaps the most famous passage of the Federalist Papers, Madison wrote:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
But that construct didn’t last long. By the end of the first Congress, Treasury Secretary Alexander Hamilton was crossing branch lines to recruit members of Congress to back his economic plan. Madison and Thomas Jefferson organized the opposition. By 1797, members of Congress were clearly identified as Federalist or Republican and regularly voted along party lines. As Profs. Daryl Levinson and Richard Pildes pointed out in the Harvard Law Review, “The precursors of the modern political party had taken root, planted by the very Framers who had authored a Constitution against them.”
In other words, Levinson and Pildes argue, government is not so much driven by separation of powers, but separation of parties. “Ignoring the reality of parties and fixating on the paper partitions between the branches, the law and theory of separation of powers are a perfect fit for the government the Framers designed,” they wrote. “Unfortunately, they miss much of the government we actually have.”
And Kavanaugh himself is a happy beneficiary of this system of separation of parties. He has spent virtually his entire career in Washington, D.C., where he has assiduously curried favor with Republican leaders by taking posts that advance the pointy end of the party’s agenda.
Fresh from his clerkship for Justice Anthony Kennedy, Kavanaugh went to work for Kenneth Starr’s investigation of President Clinton. Before going to the Supreme Court, Kavanaugh had worked for Starr in the Solicitor General’s office in the George H.W. Bush administration. Starr’s Clinton probe expended much energy diving down partisan rabbit holes, one of which was Kavanaugh’s macabre scrutiny of Deputy White House Counsel Vince Foster’s suicide. He then drafted parts of the report that made the case for Clinton’s impeachment.
In 2000, Kavanaugh worked on the Florida vote recount litigation that led to the Supreme Court decision that put George W. Bush in the White House. Kavanaugh followed Bush there, first in the White House’s counsel’s office and then as staff secretary to the president. He worked on selecting federal judges and then on post-9/11 legal issues. (Full disclosure, I was on the Democratic team that negotiated the 9/11 Victims Compensation Fund with Kavanaugh and other Republican lawyers).
By the time he was 38, Kavanaugh’s loyalty was rewarded with nomination to the D.C. Circuit. At his 2006 confirmation hearing, New York Democratic Sen. Chuck Schumer, a member of the Judiciary Committee then and now, noted, “[I]f there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.”
Kavanaugh’s work on the bench has served the same agenda. “He is an uncommonly partisan judge,” concluded two economists who conducted statistical analyses of polarization of text and citations in federal appellate opinions from 1800 to 2013.
“He has disagreed with his colleagues more often before elections, suggesting that he feels personally invested in national politics,” the economists noted. “Kavanaugh is a partisan warrior even in his legal citations.”
Listen to the remarkably similar language used by a former clerk. “He is a warrior with a backbone of iron,” Justin Walker explained to Fox News after Kavanaugh’s nomination. He “is a fighter for conservative principles,” Walker added, who would not “go wobbly” on the high court.
Kavanaugh is the worst sort of cop — the one who hands out dozens of jaywalking tickets but who turns on the sirens and careens down the street sideswiping cars so he can get home quickly for dinner.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Photo: Chip Somodevilla/Getty Images)