Steve Payne:
Welcome to the Columbus School of Law at the Catholic University of America. I’m Steve Payne, Dean of the Law School, and it’s wonderful to be with all of you for the inaugural event, for the Center on the Constitution and the Catholic Intellectual Tradition, or CIT. I had to look at my paper to get the name right and I still mess it up. But welcome and thank you especially to our guest speaker Justice Kavanaugh. We very much appreciate your taking the time to visit our school and speak with our community. Welcome President Peter Kilpatrick and Nancy Kilpatrick. Welcome Provost Aaron Dominguez, and other university officials. Welcome members of our board of trustees and our law school’s board of visitors, and other great friends of the law school. Welcome to our esteemed faculty and staff, and welcome especially to our wonderful law students.
You may be wondering what I mean by saying this is the inaugural event, since CIT has been around with us for a few years now, putting on outstanding programs, including visits from Justice Barrett last year and Justice Alito the year before. True, but CIT has been for the past few years what we’ve called a project. Indeed, it’s been a proof of concept, and now we are very happy to recognize that the concept has been proven. It’s worth its weight in many ways, not the least of which is that… It’s worth its weight in gold in many ways, not the least of which, it’s been able to attract the funding needed to expand it into a full-fledged, full-blown permanent center of the law school.
But CIT has done far more than earn funding. It has had a transformative impact on our school, attracting and helping to fund outstanding new faculty, including the school’s first ever fully endowed faculty chair, filled by the Knights of Columbus, professor of law and the Catholic tradition, Professor Kevin Wolfe, producing highly respected scholarship, attracting students. Each year now we have more and more prospective students tell us that they want to come to our school, at least in part because of CIT, bringing major scholars and jurists to campus, projecting our profile beyond the academy into the community through partnerships with highly regarded think tanks, and helping to build our community here at Catholic Law through its student fellowship program, Xcorde, our From the Heart fellows. And educating stellar young practicing lawyers here in our nation’s capital, many of whom clerked for or will clerk for the Supreme Court, through CIT’s Aquinas Fellowship program.
CIT has done all of this while living out particularly well, some of our school’s core values, stability and respect towards everyone. We believe that each and every person, no matter who they are, no matter what their background is, even no matter what they have done or not done, is made in the image and likeness of God and that each and every person therefore possesses an infinite dignity and value. This dignity, in my view, mandates a certain approach to guests, to speakers, to those inside and outside our community, that shows the utmost in hospitality and respect. I’m so proud, particularly of our students, but of our whole community, for upholding our school’s tradition of modeling civility and respect. I’m both proud and sad, that in present times this makes us virtually unique in higher education, because such are the virtues that are the lifeblood of our Republic and its institutions. Thank you for joining our discussion this evening. And now I’d like to invite Father Hugh Vincent of our university chaplaincy to lead us in prayer. Father Hugh?
Father Hugh Vincent :
In the name of the Father and of the Son and of the Holy Spirit.
Steve Payne:
Amen.
Father Hugh Vincent :
Good and gracious God, we give you thanks for the blessings of this life, the blessing of new life in grace. We ask you this evening to bless our company, our conversation, and especially our guests, Justice Kavanaugh. And for our faculty, administration and students, we ask that you might bless us all, and that you might guide our hearts always to fear your name. We ask this in the holy and saving name of Jesus Christ, your Son, our Lord.
Professor Joel Alicea:
Amen.
Steve Payne:
Amen. Thank you Father. Now I’d like to introduce Professor Joel Alicea. Professor Alicea is an associate professor of law and director of the law, school’s Center for the Constitution and the Catholic Intellectual Tradition. Prior to joining our faculty, Professor Alicea practiced law for several years at the law firm of Cooper and Kirk, where he specialized in constitutional litigation. He previously served as a law clerk for Justice Alito on the Supreme Court, and for Judge O’Scannlain on the Ninth Circuit. Professor Alicea’s scholarship is focused on constitutional theory. His scholarship has appeared or is forthcoming in the Yale Law Journal, the Virginia Law Review, the Notre Dame Law Review and the University of Pennsylvania Law Review, among other publications, he delivered the prestigious Vaughan Lecture at Harvard Law School, this past spring. He has also been active in public debates about constitutional law, publishing essays in journals such as City Journal and National Affairs.
Professor Alicea’s a fellow at the Columbus School of Law Center for Religious Liberty, and a non-resident fellow at the American Enterprise Institute. He’s a recipient of the university’s Young Faculty Scholars Award, a three-time recipient of the Dean’s Research Award and a recipient of a student award for being the outstanding professor at first-year classes. When I became dean in the summer of 2019, the law school had not hired a full-time faculty member in over a decade. In the past few years, we’ve hired 12, not counting me, and have had at least 10 visiting faculty members. All of our hires have been outstanding, Joel was our very first one of that group and started in the difficult fall of 2020. You’ve heard a little of what he’s accomplished to date, I’ll just say that that first hire has worked out okay. I turn it over to Professor Joel Alicea.
Professor Joel Alicea:
Well, thank you Dean Payne. And welcome to the Center for the Constitution and the Catholic Intellectual Traditions inaugural event, of this academic year, and really the inaugural event of CIT’s status as a permanent center, here at the Columbus School of Law, as Dean Payne said. CIT explores the relationship between the Catholic intellectual tradition and American constitutionalism. By Catholic intellectual tradition, I mean the group of thinkers, both Christian and non-Christian who have influenced the way, or I should say contributed to the way, that the church thinks about things like law and politics. And that includes people like Aristotle and Cicero, who never lived to see the gospel, or to hear the gospel, rather, but also some of the greatest Catholic philosophers and theologians in our history, St. Augustine and St. Thomas Aquinas.
So it’s a broad intellectual tradition that takes in what is true and that we think gives us the resources to think through some of the most difficult questions of our time. Because we live in a time of great confusion about the nature and purpose of the American constitution, and some of those difficult problems that we have to think through could draw on the Catholic intellectual tradition to try to solve them. So we host public events like this one fellowship programs for young lawyers in DC and students here at CUA, as Dean Payne said, and other activities, you can learn more about us at cit.catholic.edu. As Dean Payne mentioned, it’s a big day for us at CIT because this is, because this is, as I said, our first event, as a permanent center at CUA. For the first three years of our existence, we were just, a proof of concept project and we’re extremely grateful for all of the people who helped make our first two years of programming such a success, including Justices Alito and Barrett, who did this event the last two years, when we were a project, we’re very grateful for that.
Now that we’re a permanent center with a new name, we can expand our programming and bring on new affiliated faculty, including Professor Jen Mascot, who clerked for tonight’s guest. And we’re deeply honored to host Justice Brett Kavanaugh for this inaugural event, it’s especially meaningful for me to host Justice Kavanaugh for this event because he’s my former teacher. He taught me a course on separation of powers at Harvard Law School. I remember vividly the first day of that class, when he without notes just took out his battered copy of the Constitution, there it is, of course. And… This is not planned, it was not planned. That was not planned.
Justice Brett Kavanaugh:
I don’t travel without it though.
Professor Joel Alicea:
And just lectured for, it was like 45 minutes or an hour, just going through every major provision of the constitution, and giving just a brief little commentary on each one. I think that was more attention to the text of the Constitution, in that first lecture, than I received in the rest of law school combined. So it was very much worth it. But anyway, Justice Kavanaugh, welcome back to Catholic University.
Justice Brett Kavanaugh:
Well, thank you, Joel.
Joel was a superstar student. I could see future stardom and he has lived up to all that I anticipated, and then some, and exceeded it. I want to thank President Kilpatrick and Dean Payne for the welcome to this fantastic university, this important university, in American life and in Catholic life. This law school, which I have a long relationship with, three close friends of mine so close, I was just with them two nights ago, from high school, Mike Bidwell, Phil Merkel and Don Ergo, were all members of the class of 1990, at this law school. And Mike is now the owner of the Arizona Cardinals football team, that’s a good gig if you can get that. Don has spent a career first as a litigator and then very successfully in the hotel business, and Phil Merkel has been at the Department of Justice for his entire career, as a government lawyer and a public servant, good representation of what people from Catholic Law School do and achieve.
And I’ve been honored to be here in the past. I spoke at the commencement, in May or June of 2018, before I was in my current position, and spoke earlier at the law school, a talk on the Judge as Umpire: Ten Principles, which is still available somewhere on the internet. But I read it the other night, it stands the test of time, was trying to explain, and we’ll talk about, the role of the judge in our constitutional system. But I just want to… I’m just so grateful to be here at this center, it’s so exciting. Professor Mascot being here, and the law school and everything the university stands for. I’m from this area, I grew up here, so Catholic university is a really important part of America, of this community and of my life, and I’m just grateful to be here.
Professor Joel Alicea:
Well, thank you Justice. I think we should pick up where you and I left off all those years ago, on the topic of separation of powers. But before I get into my questions, for the law students and for some of the non-lawyers in the room, let me just preface this by saying, that we’re of course not going to be discussing any specific pending or future cases, which would be inappropriate. We’re going to stick to-
Justice Brett Kavanaugh:
Don’t leave, don’t leave.
Professor Joel Alicea:
Yeah, sorry to disappoint you if that’s what you thought you were coming for. We’re going to stick to decisions or opinions that have already been published, to keep the conversation at a higher theoretical level, but that gives us plenty of fodder because the court has issued so many significant decisions in recent years.
And we’ll start with one of the final decisions from this past term Loper-Brite versus Raimondo, where the court overruled Chevron versus Natural Resources Defense Council. Just to oversimplify a little bit, and Professor Mascot can correct me if I’m wrong about this, chevron held required federal courts to give deference to reasonable interpretations of federal statutes, agency interpretations of ambiguous federal statutes. And the Chief Justice’s opinion for the court held, that Chevron was inconsistent with the Administrative Procedure Act. So on that level, it seems like a statutory interpretation case, but the first part of the opinion is all focused on the constitution. It’s focused on the role of the federal judiciary and the importance of federal judges interpreting the law based on their independent judgment. And so there’s this first part of the opinion which is on constitutional principles, then you get into the statutory interpretation principles. So to what extent do you interpret Loper Brite as resting on separation of powers considerations, constitutional considerations?
Justice Brett Kavanaugh:
Well, I think the overarching construct of Loper Brite, is infused with separation of powers principles, and a recognition of the role of the judiciary in our constitutional system. And the idea is, that in a justiciable case, where the case is properly before the judiciary, it is our job to police the boundaries of the separation of powers. And what that means in Chevron kind of cases, is to make sure that the executive branch, the agency in question, is acting within the scope of the authorization that has been granted to it by Congress. And what Chevron had done is to say that, if the congressional authorization was ambiguous or there was a gap, that the executive branch could proceed with its rule or regulation, based on that statutory authorization, even if the court thought that was not the best reading of the statute in question. And so what that did was essentially that old rule, put a thumb on the scale in favor of the executive branch in cases where it was being challenged as acting outside statutory authorization.
And because there’s a lot of ambiguity about ambiguity, is this statute really ambiguous? And different courts had different approaches to that, some judges, I was one of them on the DC Circuit, was pretty tight on that, but a lot of judges could find ambiguity in the statute. And the executive branch would try to say, “Look, Court, this statute’s ambiguous and therefore defer to us, in upholding the rule that we’ve enacted pursuant to the statute.” It might be an environmental regulation, it might be an energy regulation, a healthcare regulation. And this was a bipartisan phenomenon, this has nothing to do with partisanship. Administrations of all stripes would try to, in essence, stretch statutory authorizations.
Now why would this happen? And I’ll just give a brief background of how this would come up. When you’re running for president, you run on, “I’m going to improve the healthcare system, I’m going to improve the immigration system, I’m going to improve the environment, I’m going to improve energy production. I’m going to reform,” You name the issue, “The labor management relations.” Whatever it might be. You run on policy and often you’re running on changing policy, improving policy from what it has been. And then you get into office and it’s hard to pass new legislation, by design in our constitutional system, it’s hard to pass new legislation. And what inevitably happens, again, a completely bipartisan phenomenon, is that there’s pressure put on the agencies to try to achieve, through the regulatory process what cannot be achieved through the legislative process. And Chevron really facilitated this effort to, some would say, circumvent the constitutional process of legislation by giving authority to the executive to establish an issue, really big important regulations that would have huge effects on the American people, without having gone through bicameralism and presentment, in the Congress and signed by the president.
So what we did in Loper Bright, the Chief Justice’s opinion, was I think a course correction, consistent with the separation of powers, to make sure that the executive branch is acting within the authorization granted to it by Congress. Now to be clear, don’t over-read Loper Bright, oftentimes Congress will grant a broad authorization to an executive agency. So it’s really important as a neutral umpire to respect the line that Congress has drawn, and when it’s granted broad authorization, not to unduly hinder the executive branch from performing its congressionally authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization. I think Chevron, and the Chief Justice’s opinion reflects this, distorted the separation of powers, and in ways that were problematic and circumvented the legislative process that the Constitution prescribes, in ways that were constitutionally problematic. So I see it as a course correction.
Professor Joel Alicea:
You mentioned in the course of your answer, if you’re running for president, and of course you served in a very senior role, in the George W. Bush administration, before you were appointed to the DC Circuit. So you got to see the institution of the presidency up close in a way that a lot of judges have not had the opportunity to do. Do you think that that experience has influenced the way you see separation of powers cases, and maybe even Loper Brite specifically?
Justice Brett Kavanaugh:
Absolutely. Yeah, it’s had a huge influence on me in all sorts of ways. I’ve worked in the White House for five and a half years, for President Bush, from 2001 to 2006, two years in the council’s office. And then three years, a job called Staff Secretary, where I traveled with them all over the country and including in the 2004 re-Elect, so various, at least certain states in the country at that point, and then all over the world as well. Including, just as an aside, probably if you asked me, my number one memory from that whole five and a half year experience, was we traveled to the Vatican in 2004 and President Bush was awarding Pope John Paul II, the Presidential Medal of Freedom at the Vatican. And I was fortunate enough to be on that trip, and to be in the room when President Bush awarded Pope John Paul II the Medal of Freedom. And as a Catholic kid to be with the American president and the Pope in the Vatican…
Professor Joel Alicea:
It’s going to be tough to top that.
Justice Brett Kavanaugh:
And it was very powerful that the statement the president made about the son of Poland who became the bishop of Rome, and a hero for the ages, and it was very powerful. And then the Pope, who was not doing great health-wise at that point took the medal, which was in a nice presidential box and held it up a little bit and said, “God bless America.” And it was just a great moment. So that’s not separation of powers, but it’s-
Professor Joel Alicea:
It’s a good story.
Justice Brett Kavanaugh:
It’s a good memory. So on back to the separation of powers, let’s try to stay on topic here. President Bush was like every other president I mentioned, bipartisan phenomenon, he had a lot of things he wanted to get done as president. Of course September 11th Altered the course of his presidency, but he still had, in the domestic arena, a lot of things he wanted to get done, with respect to the environment, energy, immigration and what-have-you. And he, like all modern presidents, would be frustrated by the legislative process. It’s very difficult to get things through the legislative process, and I saw this up close. And on the legislative process, if you think about the constitution, it takes the House, takes the Senate, takes the president, and in the Senate, under current rules, takes 60 votes for most legislation. The legislative process in our constitutions is designed to be incremental. It takes consensus to get legislation and that means things are going to be incremental. It’s hard to get big legislation through, at least without a crisis of some sort, so post September 11th, the financial crisis in 2008, things like that. But otherwise it’s very hard to get major legislation.
So I saw in his administration, just like I’ve seen in other administrations, pressure on the agencies to push the envelope. And how Chevron facilitated that was, sometimes agency lawyers or other officials might think, “This is not really the best reading of the statute, but we really want to get this policy objective achieved.” And with Chevron, you never know, maybe the court will uphold it, “Maybe we can convince there’s an ambiguity here, there’s something there, there’s a gap there, let’s go for it.” So even if the agency thought, “Yeah, that’s not the best reading of the statute.” There would be pressure to go forward and you would go for it. And then you get to court… So I see this later from my DC Circuit perspective, you get into court and the judges might think, “You know, this is not the best reading of the statute. What the executive’s doing here is beyond the scope of the statute, best read under the usual tools of statutory interpretation. But there’s an ambiguity and therefore, even though we don’t think it’s the best, we’re going to uphold it under Chevron.”
And what you could have then is really massive new regulations, or important or new, they don’t have to be massive, just important or new regulations, that were issued and approved, even though no one thought it was actually consistent with the best reading of the statute that had been passed by Congress and signed by the president. So that’s how it happened, that’s the pressure that created it in the executive branch, that’s how the phenomenon evidenced itself in the judicial branch. And that I think if I’ve described it correctly, shows how the separation of powers process prescribed by the constitution could be distorted.
Professor Joel Alicea:
Just one last question on Chevron and Loper Bright, your adjoining of the majority opinion in Loper Bright, wasn’t your first foray into this. You’d been a critic of Chevron for many years, you had this 2016 Harvard Law Review article, where you criticized Chevron and some other canons of interpretation, insofar as they required a threshold determinations that were not susceptible to principled adjudication. So you said earlier, jokingly, there’s ambiguity about ambiguity, that was one of your criticisms of Chevron then. So it seems to me like there’s a theme here to your jurisprudence, that you have a preference for rules over standards, that you have a formalist instinct of seeking to cabin judicial discretion. Do you think that’s a fair characterization? You cite Justice Scalia’s rule-of-laws, the law of rules, in that 2016 Harvard Law Review piece.
Justice Brett Kavanaugh:
I do think it’s fair to say, as a judge I prefer rules over standards. And just to go back a second to the ambiguity about ambiguity, and explain to the students and others how that would come about, as a judge on the DC Circuit. Hearing one of those big cases, this could be a massive regulation, billions of dollars at stake, challenge has being outside the statutory authorization. You get into the conference room after the oral argument with two other judges, panels of three in the Court of Appeals. And the three judges might agree that the regulation was not the best reading of the statute, what the executive was trying to do was unlawful. But then you’d get into an argument about, but is it ambiguous, and therefore we should uphold the regulation nonetheless? And you could have, and this happens in my experience, two judges say, “I think it’s ambiguous enough, so I’m going to vote to uphold it.” And one judge, often me, would say, “I don’t think that’s the way to go about it here, under our separation of powers and under the Administrative Procedure Act. And I don’t think that’s the best reading of the statute, and I think therefore…”
And so the whole thing, billions of dollars important safety regulations, whatever it might be, would turn not on a debate about the best reading the statute, you might all agree on that, but on a debate about whether it’s ambiguous enough to uphold. And that struck me as a really bizarre set of circumstances, which I described in that law view piece that you mentioned. More generally why rules over standards? Sometimes of course you’re going to have standards of the law as a matter of precedent, as a matter of the text, you’re interpreting unreasonable searches and seizures, there’s all sorts of… But if you can, as Justice Scalia said, oftentimes rules are preferable because rules constrain discretion. And why is it important for rules to constrain judicial discretion? I think it goes to that idea the judge as umpire, judges are supposed to be neutral, and to make the same call and apply the same principles, regardless of whether it favors Republican or Democrat, environmental interest or developer, business or labor. Whatever it might be, we have to be consistent in applying the same principles to everyone, without regard to policy, or politics or partisanship. And rules constrain discretion more than open-ended standards, and with open-ended standards, Justice Scalia would often say, “The suspicion would be, and sometimes the temptation and sometimes the reality, would be that policy or other considerations would infuse the decision and therefore you wouldn’t have this kind of neutral judicial resolution.”
So where you can apply a rule, develop a rule, rather than an open-ended multifactor balancing test, I think that’s preferable as a general proposition, knowing that these are all gray areas and nothing’s going to be that way all the time.
Professor Joel Alicea:
Right. Well your concern with cabining judicial discretion, was also at the heart of your concurrence in United States versus Rahimi, in the past term, a case about the right to keep and bear arms. So let me just set this up a little bit, in that concurrence, you argued that when it comes to discerning the scope of constitutional rights, where you don’t have on-point precedent, you said, quote, “There are really only two potential ways to do this,” You said, “History or policy.” Now you contended that it’s more consistent with the judicial role to rely on history, rather than policy, it’s less subjective. But I want to zero in on one particular use of history, which was part of your analysis in that concurrence, and that’s history that long post-dates, the moment of ratification of a constitutional provision, what we might call tradition. And here in your concurrence you seem to defend the use of tradition, as a way of interpreting the scope of constitutional rights.
And there it seems like you’re at least roughly on the same page, if I may say so, with my colleague Professor Marc DeGirolami, who’s a great defender of tradition.
Justice Brett Kavanaugh:
Good work.
Professor Joel Alicea:
But it also appears-
Justice Brett Kavanaugh:
Good work.
Professor Joel Alicea:
… that you have at least a mild disagreement on that front, with many originalists, including Sharif Girgis at Notre Dame, who has criticized the court’s use of tradition in this way. Because this history-long, post-dating ratification, doesn’t seem to have any bearing on what the text meant when it was ratified, which is why originalists look at history at that moment in ratification. So do you agree that originalism doesn’t really justify this use of tradition? And if so, then what is the justification for that reliance on tradition?
Justice Brett Kavanaugh:
I’m going to answer in the alternative,
Professor Joel Alicea:
Okay,
Justice Brett Kavanaugh:
Is that okay? First I will say that there is a great tradition in the judiciary of relying on tradition, and that’s going to sound circular, but I’m going to explain it. So Justice Scalia, and Judge Bork and Chief Justice Rehnquist, are really the modern Mount Rushmore of originalism, in my view. And going back to John Marshall and James Madison, Federalist 37, McCulloch versus Maryland, those people all relied on historical practice, even historical practice that was more recent from the time of ratification, so long as it had been a consistent historical practice over time, as a way to interpret constitutional text. Where, and this is an important premise, you mentioned it, but just to underscore for the students, where the text itself doesn’t answer the question, where there’s not precedent on point and where there’s not contemporaneous history. So you’re out of the usual tools, text history and precedent, and what do you rely on then in those circumstances?
And in Rahimi, I cited a very painfully long string site, which could have gone, and actually in certain drafts did go, a few more pages of string site, of cases, where Justice Scalia, who is the foundation, as I said, of originalism, as I see it, would rely on post-ratification history, far after the time of ratification. Including in some of his most important cases, Heller for example, the Second Amendment case, he did that explicitly and he did that over and over again. So to that extent, if Justice Scalia is originalism and he relied on it, then that sounds good to me, right?
Now, let’s say as a purist, Justice Scalia is wrong, which I try not to articulate, but let’s assume, for the sake of argument, that he was wrong in thinking that’s part of originalism, the label originalism, he would still say, “Well what else do you have? What’s your alternative at that point, other than relying on historical practice?” Other than that, it’s just relying on your policy inclinations.” Which to him and to me, is antithetical to the role of the judge under our constitutional system, if you could avoid it at least, which is, we want to be judges interpreting law, not making policy. That fundamental divide is something that I feel very strongly about, we do law, not policy, politics, that’s our job. And so when we can rely on historical practice that gives us, as Justice Scalia said over and over again, something to turn to that constrains our discretion and is rooted in law.
And he would say, and he did say, and I quoted this in Rahimi, it’s not perfect, nothing’s perfect, but it’s the best of the available alternatives at that point. And that’s how I would justify the use of the post-ratification history. Again, not perfect and I understand. Now, if you don’t rely on that, you’re at sea and I don’t know how you rely on anything other than just your policy inclinations, which might be dressed up as a balancing test or tiers of scrutiny, which he’s written, read his article on tiers of scrutiny, please, it’s outstanding. But that’s just policy a little bit dressed up, as I see it.
Professor Joel Alicea:
If I may just push back a little bit on the –
Justice Brett Kavanaugh:
You can push back a lot. He did in class, he pushed back all the time in class.
Professor Joel Alicea:
Probably too much, probably too much.
Justice Brett Kavanaugh:
It was always cogent.
Professor Joel Alicea:
So as I understood your argument there, you were saying, “Well we have to rely on tradition because if not, we’re just relying on our own moral and policy views, as judges.” But isn’t that kind of objection to reliance on judicial moral and policy views itself, a moral and policy view, saying your preference for not having judicial discretion and for cabining that discretion in order to have the judge play this umpire role, that itself seems to be rooted in some sort of role morality at least, of what the judge is supposed to do. So where does that come from, in your thinking?
Justice Brett Kavanaugh:
Well, I think that comes from Article Three as I understand it, from the Judicial Oath, as I understand the Judicial Oath, to do equal right to all persons. Which as I understand, both Article Three and the Judicial Oath, requires me to repeat, “To try to do law rather than policy.” And that’s how I understand reading the Federalist papers, Federalist 78 and others, about the conception of the judicial role. And the discussion precedent at a big picture level, how Supreme Court justices, who I think have done the job well, over time have described the judicial role, Justice Scalia but many others, Chief Justice Rehnquist, many others, who have described the proper judicial role, I am convinced that the job is to try as best you can to do law and try as best you can to keep policy preferences away from it. Recognizing again, that some standards and what have you will require some assessment, what’s reasonable attorney’s fees or something like that, but, yeah.
Professor Joel Alicea:
What you mentioned-
Justice Brett Kavanaugh:
I can tell he’s not satisfied with that –
Professor Joel Alicea:
We’ll take it up in office hours. In your Rahimi concurrence, we were talking about tradition where you don’t have on point precedent. But your Rahimi concurrence also spends a good deal of time talking about precedent and stare decisis, and you’ve written extensively on stare decisis before, your Ramos concurrence, where you really give your view on stare decisis. But in Rahimi, you said something about stare decisis and how to interpret precedent, that really jumped out at me, that I don’t know if I’d seen you say before, you said that the original meaning of the constitution, and quote, “Function as a gravitational pull on the court’s interpretation of precedent.” Unquote. So that seems to be saying, that perhaps the court could interpret precedent more narrowly in light of the original meaning or maybe more expansively in light of the original meaning. What do you think is the justification, why do you think it’s legitimate for the court to construe precedent broadly or narrowly, in light of the original meaning? And do you regard, and you don’t have to, I’m just throwing these out there because they seem, to me, to be examples of this. Do you regard the court’s decisions in SEC versus Jarkesy and Grant’s Pass versus Johnson, from this past term, as examples of the court construing precedent more narrowly, in light of the original meaning?
Justice Brett Kavanaugh:
Well, I had said that in a dissent, in a case called Free Enterprise Fund when I was on the DC Circuit, which is one of my favorite opinions I wrote. So that-
Professor Joel Alicea:
My research wasn’t good enough.
Justice Brett Kavanaugh:
But it was in 2008, I think you were in grade school then. So anyway, it is a principle when you have a fork in the road, about how to interpret a precedent. And just to back up, precedent is hugely important in our day-to-day life at the Supreme Court, of course at the Courts of Appeals, but at the Supreme Court too. Most of our cases, we’re debating how to read a precedent, a prior decision of the Supreme Court, and to decide the current case consistent with the prior decision. And oftentimes, there’ll be a fork in the road about, do we read that precedent more broadly or more narrowly? And what guides us in making that choice?
And what I think, again, going back to some of my earlier comments, the best way to think about that, when there’s a true fork of the road, because… And Amazingly sometimes our opinions are ambiguous themselves, about which way to go on that. And what I think it’s proper to do is to look at, well, let’s interpret in a manner consistent with what the text’s original meaning history shows, and that’s what I was articulating there. But just to underscore how important precedent is, that was a key part of my Rahimi concurrence, I think was to remind people, that I think… Okay, how am I going to phrase this without… The academy sometimes gets focused on original meaning in every case, on every issue, that’s not how it works at the Supreme Court, even though we’re originalists. Because precedent in our view, in my view, is part of what article III tells us to respect, Federalist 78, and precedent plays an important first stop, in most of our judicial decision-making.
And sometimes we’ll get criticized by originalists, “Well that decision’s not consistent with the original.” “But we have a precedent on point.” Would be my response to that, sometimes. And unless we’re going to overrule, which we do rarely, but sometimes, but rarely, we follow the precedent and try to give the best reading of the precedent. An example of Bivens, Bivens is a case a lot of people have criticized over the years. We have not overruled it, what we’ve done is basically said, and I’m simplifying for effect, “That far and no further.” Because of the phenomenon you described of maybe it being not consistent with original meaning.
So precedent’s quite important. Obviously one of the big changes when you get on the Supreme Court from a lower court, there are two huge changes. One is there are nine people in every case, not three, and it’s the same nine people in every case. You spend… One of the huge things, to just the students, daily life at the Supreme Court, you spend so much time with eight other people and just those eight other people. Imagine every class is the same nine people, every lunch is the same nine people, every event at the court, same nine people. You really have to learn how to get along with these other eight people, it’s a huge part. You’re learning a lot in law school about wall, but personal dynamics are going to be an important part of your career, and never more than you’re working with the same nine people all the time. It’s really interesting, it’s great, I’m very fortunate to have eight spectacular colleagues. That’s not always been true historically, there’ve been lots of personal problems, not on our bunch. And not only do we do oral argument and conference together, after every oral argument conference, why not, we eat lunch together, just the same group.
And the rule at lunch is you can’t talk about work, which is a great rule. Think about it, then you’re talking about the same thing you’re talking about, movies, and books, and current events and old war stories, and you get to know each other really well, through that. And that glue, that understanding of the other person, helps when you have really tough cases and you have contentious debates, although we try to keep them always civil, on difficult issues, that friendship, that forms is really important. And just this for the students, a little bit of a life lesson, those friendships, even with people you disagree with, that understanding of people you disagree with, is really important, and we have to live it and do live it day to day on the Supreme Court. That’s a long way from your question, but I wanted to get that-
Professor Joel Alicea:
Well actually, it tees up another interesting question. Do you see that kind of consensus building, that kind of collegiality… I should reframe this. Do you see that the importance of collegiality as important only for consensus building, on the court? Or do you think that it has some sort of inherent value, even beyond just the fact that you have to eventually get five votes for an opinion?
Justice Brett Kavanaugh:
So this is an important question, especially at Catholic University. I think the value of civility and collegiality, is critically important, even if it gets you nothing. It’s important in and of itself to be a good person, to be interested in the other person, to stand in the other person’s shoes, to show respect for the other person. And when we’re on the Supreme Court, we’re modeling behavior for the entire judiciary, for the profession, hopefully for the country, if we demonstrate civility and collegiality, which we need more of, frankly in all our institutions, including in the country as a whole. And so I think civility and collegiality that we try to demonstrate, and we can do better in some of our written opinions, I’ll throw that out there, acknowledge that, but it’s quite important. And if you listen to an oral argument, which I encourage all the students to do and all the citizens of this country to do, I think you’ll be thinking, “That’s government working well.” Where they’re asking tough questions, both sides and people are really exploring, trying to get the best answer. And they’re very civil, I think you would hear, to the lawyers, most of the time, and to each other in the questions, and that’s really important.
Now also on a court of nine people, it turns out, that that also invariably helps when you’re working on cases. Because If you read from the outside, you’d think, “Oh, there’s this group that always votes one way, and another group that always votes another way.” That is not how it works at all. At the same time, I might be agreeing with Justice Alito on a case, I might be disagreeing with them on a case going on at the same time, or I’m agreeing with Justice Sotomayor on a case and disagreeing with her on another case at the same time. Well, you can’t let your irritation, frustration, “How could they think this?” The usual human reactions about the case, you disagree, infect the case where you’re allies, where you’re working together to try to figure out the result. And when you’re trying to form consensus, which we try to do, it’s always better if we can to form a broader consensus, not always achievable, obviously. Those relationships, that civility, that understanding of each other really matters.
So for the students here, I really emphasize the role of civility in the classroom, on campus, collegiality, respecting other people’s views, listening. When I got to the Supreme Courts, everyone comes in and gives you a little pep talk, day one, and Steve Breyer comes and I’m just sitting at my desk, Steve didn’t use to knock, he’d just roll in, and he’s standing [inaudible 00:46:12], “Whoa, Steve. What’s…” And he said, “It’s so important around here to just listen.” And that’s a really good lesson, that obviously I mention it now because I think about it all the time, listen to the lawyers on both sides, listen to your colleagues. And as students, I think and members of an academic community, and really the country as a whole, I hope we all can take time to live up to that Steve Breyer lesson of, “Listen.”
Professor Joel Alicea:
And one of the distinctive features of your jurisprudence so far, has been these concurrences where you’ve tried to emphasize the common ground between the majority and the dissent. Are those concurrences related to what you were just describing? What goals do you have in mind for those concurrences? Do you think they’re effectively advancing those goals? It just occurred to me given that you were talking about consensus and collegiality.
Justice Brett Kavanaugh:
I think it depends on the concurrence, but some themes that I think emerge are clarity. As a former lower court judge, as a former White House official, if I think there are questions that might be quickly asked about a majority opinion and I can write something that will help clarify a point, recognizing it might be just speaking for me, I might do that. To emphasize the common ground, to emphasize maybe that the dissent is over-reading the majority opinion, which happens, when you get worked up in a dissent as we all do, to provide an explanation of another issue that might be lurking and coming down the pike, I think a common feature of concurrences is to do that and identify them. I’m basically in the middle of the pack, I think, among the nine of us in writing concurrences. But they can be, I think valuable at times. You got to be careful not to overdo it, but they can be valuable at times.
And one of the things I try to do both in majority opinions and concurrences, and dissents frankly, is to show respect for the side I’m disagreeing with. So if you think about our court, and you think about our role in the constitutional structure and you think about the decisions that we have to make, the issues that come before us, they’re very difficult decisions, and people who lose the case are going to be very upset with the decision. And that’s inherent in the role, and you can go back throughout American Supreme Court history and that’s going to be part… So how do you deal with that? And sometimes you have to issue a decision that’s really going to be quite unpopular. The flag burning decision famously, that… Well it was in the late ’80s, and you all are too young to remember that, that was wildly unpopular. Immediate denunciations by the Congress unanimously, the court held that flag burning was a protected form of expression under the First Amendment, five to four, very controversial.
So popularity, or your ruling for a criminal defendant who did something unspeakable but didn’t get a fair trial, and you rule for the criminal defendant, you have to rule for people who are unpopular, or an unpopular speech or an unpopular religion that’s out of favor. In this job as a judge, you have to apply the law neutrally, even when an unpopular party or position is going to prevail, or when the right answer to the law is unpopular. But what you can do and I try to do, is show respect for the party that’s losing. Because if you think about it, the long-term sustainability of our system, I think, is respect for the system. And you need… The winning party’s going to love you, it’s the losing party that has to respect the decisions over time. And how do you do that? I think about this all the time, how do you do that? And I think one of the important ways to try to do it, is through how you behave at oral argument. And I already described that, I think the nine of us do a great job at that, to show you are prepared, to show you cared about getting the right answer.
But it’s also in your opinions, to go back to the question now, in your opinions, I think it’s really important to tell the losing party or the party you disagree with, why, and to explain it carefully and to show some recognition of their interest in the issue, and do the best you can. They’re still not going to like it, but it turns out, I think in my experience in all these years, in various government entities and what have you, that losing when you feel like you were respected, enhances confidence in the institution. I think it’s really important for all judges to remember that, the judge is an umpire. When you go to a high school basketball game, you hear just crazy things yelled at the refs, just unbelievable. I go to a lot of them, my kids play sports, and I always think, “Who would want to be a referee?” Then I think, “I kind of do the same thing. It’s the same kind of job.” But the referees who will go up maybe to the coach and explain, “Okay, here’s why I called that foul.” Or explain something to the kid who’s complaining, or try to be fair about things and go about it neutrally, that works as an umpire, a referee, it also works as a judge. And I think it’s really important to show respect for the party you disagree with, and I encourage the students to remember that.
Professor Joel Alicea:
And some of the, in fact, many of the major cases that have come before the court, during your time there, have implicated religious liberty.
Justice Brett Kavanaugh:
Yes.
Professor Joel Alicea:
What do you regard as some of the big themes of the court’s religious liberty cases, in recent years?
Justice Brett Kavanaugh:
So I think that’s one area in the six years I’ve been on the court, that I think we’ve made, in my view, correct and important strides. And I think one of the principles that’s been reinforced and elaborated on, is that discrimination against religion, against religious people, against religious speech, against religious organizations, is not required by the Establishment Clause, and indeed, is prohibited by the Free Exercise Clause and the Equal Protection Clause. And so in cases like Trinity Lutheran, Espinoza, Shurtleff, Carson, there would be government programs where religious groups, or religious people or religious speech, would be left out. Often because local officials, state officials would think, “We can’t have…” Let’s make it concrete. We have an open gym policy at the public school, anyone can use it after hours. “Oh, but a religious group wants to use it. We can’t allow that because that would be an Establishment Clause violation.”
And we’ve made clear, I believe, and on these cases and others, that no, that’s wrong, that is discrimination against the religious group, the religious person, the religious speech. And that is not required by the Establishment Clause, that’s a misreading of our history and tradition. And that’s not required by the Establishment Clause, indeed, it would be unlawful under the Free Exercise and Equal Protection Clause to tell someone, “Oh, you want to come in and have secular event, that’s great. You want to come in and have a religious event, no.” That’s discrimination against religion. We saw in some of the COVID cases, that were quite important in my view as well. So I think we’ve reinforced… Maybe built, but certainly at a minimum reinforced, a critical principle of religious equality and religious liberty in those cases, and hopefully corrected some of the confusion from litigation-shy local attorneys, who might think, “Oh, can’t have a religious flag flying in front of City Hall in Boston.” That was the Shurleff case, we can have a flag for everything else, but if it’s a religious flag that’s a problem. We said, “No, that doesn’t work, that’s discrimination against religion.” So I think we’ve made some good progress on that and I feel very proud of that, for recognizing the constitutional protection of religious equality and religious liberty.
Professor Joel Alicea:
Well, as we’re drawing to the end of our time, I just wanted to focus on a couple of questions that I think are appropriate to our setting here at the Catholic University of America. You’re both practicing Catholic, and as I mentioned earlier, someone who has taught in law schools, you were my teacher, what do you think the Catholic intellectual tradition can contribute to legal education and to legal scholarship?
Justice Brett Kavanaugh:
Well, I think of the Catholic intellectual tradition. I guess I first broadened it out to the Catholic tradition, more generally, my Catholic experience, I went to Mater Dei school out at Bethesda, I went to Georgetown Prep, did 12 years of Catholic education. A member of Blessed Sacrament Parish, I grew up in the Little Flower Parish, both local parishes here. Volunteer at Catholic Charities, with Monsignor John Ensler, I’m very much involved. The Catholic tradition, as I think about it, before I get to the Catholic intellectual tradition, is reflected in several principles. I try to think about daily or at least often, Matthew 23, “He who exalts himself will be humbled. He who humbles himself will be exalted.” To remember the importance of humility. That you don’t know it all that you’re trying to learn from others. I think about Matthew 25, of course, about service to others. The motto of my Jesuit high school was, “To be persons for others.” And in Matthew 25, the importance of feeding the hungry, and caring for the sick and housing the homeless.
And I think about that tradition, which we would always say when I was working down at Catholic Charities volunteering, which is of course well known, but we serve them, we feed them, not because they’re Catholic, but because we’re a Catholic. And that’s an important principle I think, of my broader Catholic faith. Then when you apply it to my thought about Catholic intellectual tradition, I really think of the same kinds of principles, starting with Jesus, but the same kinds of principles of trying to listen to all sides, to try to be open-minded, to try to listen and learn, and to have inquiry and dialogue. Rather, and I think the Catholic intellectual tradition reflects this, which is inquiry, and dialogue, and listening ,and hearing different perspectives and having respectful back and forth, to always try to learn more and to understand more. So for me, the Catholic intellectual tradition builds on the Catholic experience and tradition more generally, about being part of a broader community where you listen to others, help others, serve others, learn from others. And that’s how I think about it.
Professor Joel Alicea:
And indeed the Summa has that kind of dialogical back and forth, and it’s very structured, right?
Justice Brett Kavanaugh:
Yes.
Professor Joel Alicea:
In your six years on the court, you’ve participated in many hugely consequential decisions, you were referencing that earlier. And sometimes you’ve had to cast the deciding vote in cases that you knew would provoke a lot of controversy, I’m sure, and that takes a certain amount of courage, one of the virtues identified by writers in the Catholic intellectual tradition, like Aquinas and Aristotle. So which virtues do you think are most important for a Supreme Court justice?
Justice Brett Kavanaugh:
Yeah, that’s a great question. I mean, I think about how do you want to be good at the job? I want to be good at the job. I’d like to be as good as I possibly can be at the job. How do you measure yourself? We don’t get batting averages, I would like if we’ve got a batting average, points per game, three-point shooting percentage, you don’t have all these things by which you measure yourself, and you don’t have grades. So almost Yale Law School-like in that sense, my alma mater. And so I think about this a lot, how can you be good at the job? And how can you look yourself in the mirror in the morning and at night and say, “I’m doing well at the job.”? And so there’s certain principles, values that I try to adhere to, and think about and live up to.
And a few of them, I’ll just tick off a few of them. And I learned these primarily in Catholic school as a kid as I’ll mention. So the first is be prepared, be prepared. Father Byrne, Latin class, Georgetown Prep, don’t have all the Latin down pat, but do remember him, “Be prepared. Be prepared. You can’t go wrong as you go along if you are prepared.” And that’s 42 years later. I’m gathering we weren’t prepared all the time, because I remember that so distinctly, but in any event, it stuck with me. And to the teachers here. Just a reminder, you may think you’re talking to a blank wall at the moment, but those lessons you’re imparting are imprinted and implanted, and they emerge later on sometimes in good ways. And it’s important to remember that as a teacher, you may not get immediate reflection, but later on.
So to be prepared. The thing about a judge that I say when I was a lawyer walking out of the courtroom, and it goes to this point about respect, that I was mentioning earlier, what’s the first adjective you want people to say about you? And as a judge, what do you want the first thing the lawyer to say when they walk out of the courtroom? I’ve thought about that, I’m working backwards, the first thing I want the lawyer to say is, “Kavanaugh is well-prepared.” I just think it’s really important, it shows respect, it shows preparation, it shows I work to try to get the right answer on really difficult questions. In our job, you could go, “Am I going to spend another hour reading through this or am I going to call it a night?” And no one’s really looking over your shoulder. It’s internal. And that value of being as well-prepared as you possibly can be, I think is really important. And I thank Father Byrne from Georgetown Prep for that.
I think about something I learned from Chris Abel at Mater Dei school, he was my English teacher, my religion teacher, my football coach and my baseball coach, and a graduate of Catholic University Law School, of course he was. Because he and Father John are the closest people to Jesus I’ve ever come across, and I mean that sincerely, I mean they’re just the greatest people. And I still see him all the time, Chris Abel. And he taught us To Kill a Mockingbird, and I still had the copy of To Kill a Mockingbird on my shelf in my office, from then, from seventh grade, in my office. And inside the front cover is written the phrase, that he thought was the lesson of To kill a Mockingbird. And we had to do a paper about it in my really bad handwriting, from seventh grade and still now. And the lesson was, stand in someone else’s shoes.
And it’s so important as a judge to try to understand other people’s perspectives, to understand both sides, to read the briefs and try to put yourself, “Okay, this is my instinct, but I’m going to try to understand the other side now.” Put yourself in their shoes. And it goes to how I was mentioning earlier, I write opinions. Also with your colleagues, why are we disagreeing on this case? That’s how I came to that article in the Harvard Law Review, I was trying to understand why I disagreed with colleagues in certain administrative law cases, and it’s about ambiguity, going back to that. But to try to stand in the other person’s shoes and try to understand them better, is really important in life. To be a good person and to be certainly, to be a good judge, you have to do it. You can’t not spend some time in their shoes understanding their position. So I thank Chris Abel. I try to think about that every day. Have I really listened to the other side? Have I read the briefs? Have I given a fair shake to both sides?
Third, and this relates to what you said is something Gary Dahm, my music teacher at Georgetown Prep, used to sing the Catholic hymn all the time, was, Be Not Afraid. If you are going to be a good judge, you got to be not afraid. Be not afraid to make hard decisions and get criticized, and get ridiculed and get mocked. And that’s going to happen, that’s going to happen, and you have to remember the hymn says, “Be not afraid when they persecute you. Be not afraid, I go before you always.” And it comes of course reflected in the Sermon on the Mount as well. And that’s really important. To have backbone, to do the right thing, even when it’s the hard thing. To have the backbone, you’re going to get blasted, you’re going to lose friends, and in my job, you lose a lot of friends, and that’s just the reality of it. But you got to be not afraid to do the right thing to stick, to your principles, to stick to your guns, to have a backbone. And to have, going back to the judge is an umpire or referee, to have thick skin, you got to have really thick skin.
That does not mean… I want to just caveat this for the students particularly, that does not mean you ignore critiques. You learn from critiques, responsible critiques. You pay attention. “Maybe we didn’t do this just perfectly. Maybe I could do something better.” But at the same time, you can’t be buffaloed, intimidated, swayed, just because something’s going to be controversial or criticized. When you’ve thought about it, you’ve listened to both sides, and you’ve made your decision and you think it’s the right thing, you got to do it, and you got to be not afraid to do it.
And then the last thing I would say, that I think about all the time, is from George W. Bush, when I was lucky enough to travel the world with him, he’s just the greatest guy, he’s pretty funny. And to travel the world and the country with him, I learned so much, obviously about policy, separation of powers, how the national security, for him every day after September 11th, every day for the next eight years was September 12th. Like, “This is not going to happen again.” Every day. So I saw the stress of being president, what that’s like defending the country, and having that all on one person’s shoulders. Because if another attack like that happened, it would’ve been, “Why didn’t Bush stop it?” It’s a tough thing to wake up to every morning, go to bed with every night.
Despite that pressure, he was so positive and so optimistic. He’s human, but he’s so positive and so optimistic. And he had a phrase he would say, “Live on the sunrise side of the mountain. Live on the east side of the mountain, see the day that is coming, not the day that is gone.” And so when I got on the Supreme Court, my former clerks, Jen among them, got the… Bush, had a painting, the Sunrise Side of the Mountain, in the Oval Office all eight years, and they got a replica of that painting, and it’s right above my desk when I walk in the morning, with the saying, “Live on the east side of the mountain, see the day that is coming, not the day that has gone.” Below it. So if I walk in a little grumpy in the morning, a little beaten down in the morning, whatever it might be, worried about the high school field hockey game later that day or whatever my daughter is involved in, I see that and I’m reminded of the great experience I’ve had, but also I’m reminded to be positive and optimistic. Because George Bush taught us under unimaginable pressure. And being our job has its tough moments, it’s nothing compared to being president, nothing, in my experience of watching that job up close. I mean, that is one person and that is a lot. And to see how positive and he optimistic he was.
And so I’ve tried to carry that forward even in difficult days, to be positive and optimistic. And I think it’s a good… Again, the students, professors, everyone, we’re in a great country. Jim Harbaugh, to paraphrase, “Where else would you rather be? Where else would you rather be than America?” And the country got its problems, of course, so does every country, look around the world, look at the news. But we’re a great country with an amazing constitution and great people, who work out their problems and have an independent judiciary, and a political system, and a economy and good people. And so I try to remember that every day to stay optimistic and positive. And so too, when I see this institution, the Catholic University, when I see the law school, when I see your new center, which I know will thrive, it reinforces my optimism when I look around and see the students’ faces here, and my positivity about the country, about the future. So may God always bless America.
Professor Joel Alicea:
I can’t think of a better way to end than that. So we invite you all to our reception afterwards in the auditorium. We ask you all to please remain seated while the justice exits the room, after we conclude. And now please join me in thanking Justice Kavanaugh.
Justice Brett Kavanaugh:
Thank you. Thank you.