What Justice Kavanaugh Gets Wrong About the Court and Politics

by William E. Nelson

William E. Nelson is Edward Weinfeld professor of law emeritus at New York University School of Law, the author of 17 books — including a revised edition of a book on Marbury v. Madison discussing the colonial origins of judicial review — and numerous articles.

In Dobbs v. Jackson Women’s Health Organization, where the Supreme Court overruled Roe v. Wade and eliminated the constitutional right to have an abortion, Justice Brett M. Kavanaugh delivered a concurring opinion putting a new spin on an old precept. He wrote that when, as in the instance of abortion, the text of the Constitution is silent and therefore neutral, the court must also be neutral and leave the issue to the democratic political process.

But history suggests otherwise. In fact, it shows that the court has never followed such a rule and, in fact, doing so could have led to far worse outcomes in some cases.

During the 18th century, up to the time of the 1787 Constitutional Convention, judges like other officeholders were merely government officials who made both legal and political decisions. In the mid-1760s, judges in several colonies held the British Parliament’s Stamp Act null and void and unenforceable. Judges in one Virginia county, for instance, ruled that the Stamp Act “did not bind, affect, or concern the inhabitants of this colony, inasmuch as they conceive the same to be unconstitutional.” In the midst of dramatic political conflict over Parliament’s policy to tax the colonies, these decisions had no doctrinal basis on which lawyers could agree and thus became part of the political conflict.

Independence did not raise judges above the political thicket. Instead, they quickly weighed in on the validity of legislation determining the rights of Loyalists who had supported Britain during the American Revolution. Again, their decision got swept up in the political debate over what should happen to Loyalists because there was no broadly accepted precedent about how to treat supporters of an established regime in a revolutionary conflict and the public was sharply divided.

As late as 1786 in Trevett v. Weeden, the Rhode Island Supreme Court made a decision to hold unconstitutional legislation making depreciated paper money legal tender for the payment of debts. The judges waded into an intense conflict that had been waged through the political process and the press, invalidating what the winners had believed was a final legislative decision.

Read entire article at Made By History at the Washington Post