In light of post-Bork Supreme Court nominees’ general reticence about their views on precedent, their personal and political beliefs, and hypothetical cases, senators asking Judge Kavanaugh questions about his agreement with precedent will likely be relatively fruitless (though they should note that despite invocations of the “Ginsburg rule,” then-Judge Ginsburg was quite candid about her views on abortion politics, thus limiting nominees’ ability to rely on it to deflect). While we can make conjectures about his views on Roe v. Wade and Planned Parenthood v. Casey based on his being on the Federalist Society list, asking him about Roe might not be that illuminative. However, in a number of cases, the Supreme Court has laid out quite vague standards that would allow judges to reach quite different interpretations of their proper application. Thus, I have proposed below the following questions for members of the Senate to ask Judge Kavanaugh, which seek to highlight his interpretation of the scope of existing precedents, how he reached prior decisions, and the authorities that he consults in reaching decisions and the balancing of competing rights:
1) While Roe v. Wade is the central abortion law holding on which many focus, Planned Parenthood v. Casey is the holding according to which we now judge the constitutionality of states' restrictions on abortion access. What is your understanding of what constitutes an undue burden or a substantial obstacle within the meaning of Casey? How do you feel that Casey compels justices to identify whether abortion restrictions are motivated by health and safety or by efforts to dissuade abortions? How do you interpret this Supreme Court precedent as clarifying how the state balances its interest in life and potential life?
2) While the Hobby Lobby holding was technically in regards to closely-held corporations' ability to exercise religious freedom in their decisions regarding health coverage for employees under the ACA, it affirmed notions of corporate personhood as also laid out in Citizens United, and expanded the 1st Amendment protections afforded at least some corporations. How limited in scope do you see this holding as extending? That is, to what extend do you view it as laying the groundwork for more corporations to claim religious exemptions, and how (if at all) as a judge would you ascertain the sincerity of religious beliefs espoused by those in corporations?
3) In the context of privacy decisions under the 4th Amendment, under what conditions do you interpret the Supreme Court as calling for a "reasonable suspicion" as opposed to a "probable cause" threshold for a search, and how according to cases such as Pottawatomie v. Earls, would you identify what exactly would be grounds for "reasonable suspicion"?
4) It is not uncommon for the interest of privacy and liberty more generally to be weighed against the interest of public safety and national security. How do you view these competing interests, and how do you interpret the Supreme Court precedent as balancing these when they're in tension? What evidence of a security threat do you see as sufficient to justify intrusions on individual liberty, and to what sources would you turn to identify this?
5) In the context of the Establishment Clause and the Lemon Test, the Court has held that laws are in violation of the Establishment Clause unless they 1) have a primary secular purpose, 2) have a primary secular effect, and 3) do not cause undue government entanglement in religion. How do you understand the Court as having defined "undue government" entanglement in religious beliefs? To what sources do you believe it is legitimate to look in order to ascertain the secular vs. non-secular purpose of a policy? Do you look to facial neutrality, do you look at sources beyond the text, etc?
* This is especially important in light of Justice Roberts's opinion in Trump v. Hawaii, which held that a facially neutral executive order could be treated as not constituting a non-secular purpose in large part because the religiously-motivated statements were from sources such as tweets, campaign statements, rallies, etc., as opposed to official government documents. So, if there is a policy with several statements indicating an underlying motivation of bias, should such statements enter into consideration by the Court, or should a more textual reading be applied?
6) A number of Supreme Court decisions have upheld the constitutionality of affirmative action, conditional upon those policies not being administered through the use of quotas, but rather as part of a broader acknowledgement that race is one of many factors contributing to education diversity, and for which there is a compelling state interest (Grutter v. Bollinger, Fisher v. UT Austin). How should the Supreme Court balance affirmative action precedents that have been reaffirmed, against the (elected) executive branch rescission of affirmative action guidance?
7) In 2013 in Shelby County v. Holder, the Supreme Court controversially struck down a portion of the Voting Rights Act that required preclearance. In the immediate aftermath of the holding, several states enacted restrictions on voting laws, such as onerous voter ID requirements and limits on early voting. In his majority Chief Justice Roberts cited the limited evidence of ongoing intrusions into voting rights in the affected parts of the country, though in her dissent, Justice Ginsburg compared the decision to throwing away one's umbrella in a rainstorm because one is getting wet. One tension that we have in this country is a recognition of certain fundamental rights on which the government can only in very rare cases infringe, as well as a system of federalism according to which states often have some measure of autonomy in implementation. How would you evaluate whether legislation that imposes requirements on states is still required to be in full effect in order to safeguard rights, especially fundamental rights such as voting?
8) You wrote an opinion that upheld South Carolina's strict voter ID law. You argued in your holding that the South Carolina law did not have a "discriminatory and retrogressive effect," and that the purpose was not discriminatory. You additionally cited a precedent that legislators' knowledge of the law's potential disproportionate impact does not alone equate to a discriminatory purpose. How, in your view, are judges meant to interpret whether a law is impermissibly aimed at discrimination, and from what sources do you feel it appropriate to render such an assessment? And to follow up, to what extent do you view this application of precedent deciphering in this case the motive behind voter ID laws extend to issues of disparate impact more broadly?
9) While there has been ample controversy concerning potential racial bias in redistricting and gerrymandering, in a recent case before the Supreme Court (Abbott v. Perez) it was assessed that the district lines may have been drawn out of political bias, which in some parts of the country overlap considerably with racial demographics. Given that we treat racial discrimination with strict scrutiny, how do you view the Court precedent as informing how you would disentangle politically-motivated from racially-motivated drawing of district lines?
Separation of Powers
10) Judge Kavanaugh has been highly critical of the decision Chevron v. NRDC and the Court's declaration that there should be deference to agency interpretations of their authority unless Congress had been clear about its intention. What would be a more reasonable approach to administrative law doctrine? How would one balance the Supreme Court precedent and the agency's policy expertise against concerns about the scope of government intervention?
11) Several political questions are currently arising that have so far been untested in the Supreme Court, particularly with respect to Article II powers. To what sources do you consult in evaluating new issues for which there is not Supreme Court precedent or is little precedent? Some of President Trump's defenders have pointed to Article II not laying out particular limits on the pardon power, and have cited this as evidence that it is unlimited, though the Constitution does not explicate limits on many rights that the Court has addressed and on which the Court has imposed bounds. In the case of issues such as the pardon power (in which specific limits are not laid out but for which immense rule of law implications can arise), to what extent do you feel that it falls within the Supreme Court's duty to interpret limits on the scope of the presidential power given broad Article II language, versus letting the issue be resolved by the democratically-elected Congress?
12) With United States v. Lopez and United States v. Morrison, the Supreme Court signaled considerable narrowing of its interpretation of the reach of Congress's power to regulate interstate commerce, instead calling upon Congress to provide greater evidence to support its claim of aggregate impact on the interstate economy. With Gonzales v. Raich, the Supreme Court broadened its interpretation, viewing the Controlled Substances Act as being within Congress's power to regulate, though in National Federation of Independent Business v. Sebelius, Chief Justice Roberts signaled another limit on what the Court viewed as a proper use of Congress's enumerated Commerce Clause authority. What do you feel is the proper test for what falls under Commerce Clause authority -- looking to whether there must be a direct impact on the interstate economy, whether the effect can be indirect, whether it has an aggregate effect on the interstate economy, whether the activity itself must be economic -- and when multiple rules have been adopted by the Court over the years (even in recent years), how would you adjudicate among them to decipher the proper scope of Congress's Article I power?
Judicial Decisionmaking (general)
13) Please walk through a couple of judicial decisions that you have written in which the law led you to reach a decision that was in conflict with your personal/political beliefs, and how you reconciled that.
14) According to what criteria would you view a precedent as having been wrongly decided? How do you weigh factors such as the extent to which it has been reaffirmed, new evidence of the impact of the holding, how popular the holding is, how recent the holding was, etc?
15) Textualists tend to seek to restrict analysis to the text, giving full meaning to the words of the text, unless doing so would produce an absurd outcome. How would you define an absurd outcome, and how would you reach that conclusion?
16) One of the consequences of lifetime appointments with longer life spans is that people are on the Supreme Court for several decades, and can in some cases be quite out of step politically with public preferences (for example, approximately 2/3 of Americans favor the upholding of Roe). To what extent, if at all, do you feel it appropriate for Supreme Court justices to consider public preferences in their judicial decisionmaking?