The Kavanaugh Nomination & Originalism as “Counterrevolutionary”

Before the nomination of Brett Kavanaugh to the Supreme Court turned to allegations of sexual assault (and alleged sexual misbehavior), the focus was on originalism as Kavanaugh’s judicial philosophy. Peek at the pages of National Review and one sees an interesting intramural debate: what kind of originalist will Kavanaugh be? Will he be an “old originalist” (such as Robert Bork, and, at least for the first half of his judicial career, Justice Scalia) concerned with judicial restraint, or a “new originalist” (such as Justices Neil Gorsuch and Clarence Thomas) wherein the watchword is “judicial engagement” and envisioning a more muscular role for the Court to check Congress and the administrative state?

The argument here is that this dichotomy between the two forms of originalism — old and new — is problematic and only coherent from a (deeply) internalist view of originalism, one that never leaves the pages of the law reviews, stylized “fun house mirror” histories of constitutional conservatism, and a desire to, acontextually and ahistorically, view originalism as largely untouched by politics. Instead — and in the words of one of key players of originalism’s development — originalism was always a “counterrevolutionary” approach to the Constitution designed not simply to roll back liberal court decisions but to challenge the New Deal settlement. In order to understand why, we need to first situate ourselves historically.[1]

Academic lawyers’ standard account is that Yale law professor Robert Bork’s influential 1971 Indiana Law Journal article and Harvard law professor Raoul Berger’s blockbuster book Government by Judiciary (1977)—both extolling early versions of an original intent approach or construct—constituted proto-originalism, the beginnings of what we now know as “original meaning originalism,” as these law school-based theoreticians refined the theory into a putatively sophisticated and objective approach to constitutional interpretation. As intimated above, this narration is invariably packaged as a linear, teleological story of the “old originalism” of Bork and Berger growing into the more refined “new originalism.” (Keith Whittington has written a useful summary of new originalism).

There are any number of flaws with this internalist account, but for present purposes, it is important to highlight that originalism is the constitutional philosophy of movement conservatism. As movement conservatives began to capture more and more of the institutional sites on the Right, originalism waxed (and waned for a time) in terms of salience and influence. While the theoretical precepts of originalism were in accelerated development in the late 1970s and early 1980s as movement conservatives continued their secular capture of the Republican Party, Declarationism—a Straussian theory of constitutional interpretation highlighting the interpretive significance of the Declaration of Independence—battled against originalism before capitulating in the 1990s. Indeed, it is oft-forgot that Clarence Thomas was a Declarationist when nominated to the Supreme Court.

We can pick up the story — its roots go back decades — in 1980. While Reagan’s election allowed movement conservatives to begin to effectuate their “people are policy” mantra, there was some discontent with Attorney General William French Smith, Reagan’s first-term AG. Movement conservatives at the Heritage Foundation derided the Smith DOJ as resembling a “Wall Street law firm.” Then-House Minority Whip Trent Lott, while praising Strom Thurmond’s influence on Reagan’s judicial appointments, critiqued the Smith DOJ: “The Justice Department is still a vast wasteland run by a bunch of professional lawyers, a lot of them from schools like Harvard, who have a completely different agenda from President Reagan’s . . . . That’s why he wanted Ed Meese as his Attorney General, because Ed understands what needs to be done in the Justice Department.”

The traditional move in the story is to pivot here to Meese’s (now) famous July 9, 1985 speech to the American Bar Association. While a signal moment in the development of originalism, one can better understand the originalism project by focusing on what Steven Teles has called Reagan’s “transformative bureaucracy” — the DOJ and, especially, the Office of Legal Policy (OLP) — and how they conceived of their own project.

Two months after Meese’s speech officially unveiling originalism, he gave a little-cited speech at AEI further fleshing out the particulars of originalism. He began with states’ rights. “The hallmark of Ronald Reagan’s presidency,” Meese told his think tank audience, “has been to urge the restoration of fundamental Constitutional values.” Federalism — distinct in Meese’s retelling from “a misguided notion of ‘states’ rights’” — was “foremost among those values.” The need for this restoration was required by “the past several decades of American life [that] have been influenced by an aggressively secular liberalism often driven by an expansive egalitarian impulse.”

Roughly contemporaneously, Steven Calabresi and other attorneys in the OLP were helping to mold the contours of originalism. Calabresi, in addition to co-founding the Federalist Society and clerking for Bork and Scalia, worked at the time as a special assistant to Meese in OLP. In two important memoranda in 1986, this soon-to-be influential originalist legal academic would set forth the template of what would later be dubbed “new originalism.”

First, Calabresi, echoing William F. Buckley (and Heritage and Trent Lott), criticized the Civil Division of DOJ for “not acting as an agent of counterrevolutionary change.” Giving content to this “counterrevolutionary” program, Calabresi agitated against the idea of “judicial restraint,” arguing originalism should be the sole guiding light. It was misguided, he wrote, to “prais[e]” the Court for not striking down federal laws. Further foreshadowing the intellectual project of judicial empowerment, he argued that, “The courts and the executive must start using their constitutional powers to hold the Congress within its proper constitutional sphere.” Along this same front, “Delegated Administrative Legislative Authority,” was highlighted as a separation of powers issue for the Litigation Strategy Working Group, whose member included a future Supreme Court justice (Samuel Alito).  The Administration, Calabresi continued, should also develop an “extensive amici program” in Takings and Contracts Clause cases before the Court “to get favorable opinions.”

Moreover, as early as March 1985 the intellectual framework for undercutting the administrative state and administrative law judges—those who refused “to incorporate agency policy in their decisions”—began to take shape. “One of the most significant areas,” OLP attorney James Spears wrote to Meese, “where executive power has been improperly insulated from the control of the President is the creation of and existence of independent agencies.” Spears then set forth a five-point plan to develop the idea further and begin taking concrete steps to institutionalize the debate. Indeed, in January 1987, David McIntosh—also a co-founder of the Federalist Society—wrote to Meese that OLP should explore whether it was not simply “independent agencies” but if agencies such as the EPA “are unconstitutional.” And in internal memoranda, the Meese DOJ further advocated that, “We should urge the courts to return to the original understanding of the Tenth and Eleventh Amendments.” Even more aggressive were ideas for a constitutional amendment that would add “expressly” to the Tenth Amendment and allow for “Collective state repeal of federal law.”

Thus, the of content GOP’s constitutional political program was immodest in the earliest stages of its formal institutionalization. The goal was not simply stemming the tide of Warren and Burger Courts precedents. In addition to rolling back liberal judicial precedent, the movement conservatives in the Republican Party were intent on relitigating the New Deal by thoroughly reconceiving the scope of Congress’s power vis-à-vis the states, and by attacking the constitutional legitimacy of the administrative state. Before the end of Reagan’s second term, then, these visionaries in the OLP had already begun to set forth a jurisprudential template that others would pick up and call “new originalism.”

For example, Randy Barnett, a leading new originalist often credited with devising the constitutional challenge to the ACA, has advocated for what he calls a “Repeal Amendment,” a movement conservative idea in the ether for decades. Don McGahn, the [soon-to-be] former White House Counsel in charge of judicial nominations for President Trump has said, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.” But whether one wants to deem it deregulation or an attack on the administrative state — and this is perhaps the signal feature of new originalism — this idea too is far from new. The same also holds true for constitutional challenges to the Consumer Financial Protection Bureau (an independent agency) and the reinvigoration of the Takings Clause, something Ilya Somin has written eloquently on.

So, how can we better understand originalism after Reagan’s second term from a developmental perspective. Formal institutionalization via DOJ imprimatur is only a necessary (but not sufficient) marker of a program’s ideational durability. Supreme Court justices and lower federal court judges imbued with the tenets of the program must ratify the program as sympathetic presidents place ideological fellow travelers on the bench. However, this is only part of the story. As originalism was institutionalized in the judiciary and beyond, an iterative process of evolving judicial doctrine from the Rehnquist Court, novel legal arguments from former clerks in the legal academy, and the push for doctrinal extensions on behalf of coalition-aligned groups allowed originalism to widen its constitutional berth — thus, the seeming move from “old” to “new.” That is, the new originalists are better understood as providing important intellectual justifications for a more muscular version of originalism as movement conservatives were left out in the cold (in part) during President George H.W. Bush’s and (in whole) during Clinton’s presidencies. These arguments, already in play for more than a decade but refined during the 1990s, were ready to be implemented by the time movement conservatives more firmly gripped their hold on the party by nominating George W. Bush.

In sum, to understand “what kind of originalist” Kavanaugh will be — and he is an originalist, as he proudly asserted during his testimony — one needs to understand the simultaneous development of movement conservatism and originalism, both “old” and “new.”

What kind of originalist, then, will Kavanaugh be? A counterrevolutionary one.

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[1] Many of the quotations that follow are from a working paper based on untapped archival documents and presented at Policy History Conference last May.

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