Brett Kavanaugh and the Global Practice of Constitutionalism — Rob Hunter

Brett Kavanaugh’s confirmation as a justice of the Supreme Court of the United States must be understood in light of globally prevailing patterns of constitutional politics. The use of judicial appointments in order to entrench policy agendas in the judiciary and circumvent the vagaries of law-making through legislation is now a standard gambit in the parliamentary playbooks of constitutional states across the world. This post considers the ramifications of conservative control of the US Supreme Court and places them in the context of global constitutional practice.

Contradiction was a recurring motif in the battle over Kavanaugh’s confirmation. Nowhere was this clearer than in the simultaneous magnification and diminution of the trauma of sexual violence. With their insistence that accusers’ accounts must be examined closely for any possible defect, and that the accused must never not have our sympathy, conservatives managed to obsess over and trivialize narratives of sexual assault all at once. No better lesson could be contrived for exposing patriarchy as a contradictory social logic. It obliges impossible performances of unimpeachable victimhood from survivors (who often seem to be on trial themselves), all the while insisting on the hermeneutics of charity and solicitousness for those who stand atop sexualized and gendered hierarchies.

A second cluster of contradictions inhered in the process that resulted in Kavanaugh’s elevation to the Court. An executive who lost the popular vote, and a profoundly undemocratic upper parliamentary chamber, decisively determined the partisan composition of an institution exercising judicial review–a paradigmatically antidemocratic practice. The consequences will be considerable and durable. In the United States, judicial supremacy over the interpretation of constitutional meaning is not just a fully elaborated doctrine; it is pillar of national decision-making. [1] As such, it is unremarkable that Kavanaugh’s rise to the Court has occasioned an outpouring of liberal consternation. Even so, he is not the first justice to join an undemocratic Court through undemocratic means, and his confirmation is plainly both the product and the vindication of a hegemonic strategy of political articulation by the conservative legal movement. [2] Missiles hurled against Kavanaugh’s (lack of) “judicial temperament” [3] inevitably landed wide of a more important mark: his personification of an empowered and ascendant social formation. The current moment’s conversations about the Court’s purported (il)legitimacy fail to account for the deep importance of judicial politics to class struggles in the United States. They consequently fail to appreciate the affinities between constitutionalism as it is practiced in the United States and constitutionalism as it is practiced elsewhere. 

In confirming Kavanaugh, the Senate performed one of the few remaining major functions of a national legislature under contemporary global constitutionalism: the entrenchment of a policy agenda through judicial politics. Kavanaugh’s confirmation was a classic of the genre. The governing coalition–which, in the sui generis absurdity of US politics, consists of a single party–sought to cement its political program through implantation in the judiciary, and, above all, the Supreme Court. A majority-Republican Court will protect and nurture conservative policies more reliably–and endow them with the patina of jurisprudential majesty.

Here we arrive at a third moment of contradiction. A conservative, soi-disant “originalist” majority is poised to constitutionalize a political program–but through acts of constitutional vivisection. The Court’s right-wing bloc is now able to assail the jurisprudential foundations of the flimsily articulated American administrative state; to erode civil liberties and civil rights; and to further undermine any meaningful access to abortion by upholding “health and safety” restrictions on abortion erected in consummate bad faith (though likely stopping short of overturning Roe altogether). It is entirely possible that the jurisprudential underpinnings of the federal government’s regulatory and bureaucratic capacities will now be vulnerable should the Court (or, rather, its conservative majority) choose to revisit foundational decisions like the holding in Chevron. [4] Judicial deference to far-reaching exercises in executive discretion–as evinced in Trump v. Hawaii [5]–will further calcify fossilized legislative restraints on presidential power in foreign policy.

In short, judicial power in the United States will be used to magnify and reinforce hierarchies of class, race, and gender. Conservative judicial hegemony will ensure that these achievements persist for decades, and it will thwart future attempts to undo them. At the very least, it will thwart those attempts at resistance which do not seek to expand the scope of conflict and remain restricted to the recitation of procedural pieties. [6] This pattern of hegemonic entrenchment through implantation in constitutional courts is central to contemporary constitutionalism. It has been termed “juristocracy” by the political scientist Ran Hirschl. [7] In Hirschl’s analysis, the judicialization of politics is a favored tactic used by elites facing major transitions in their polities (such as in Israel and South Africa). Hirschl’s argument is hardly Marxist; his emphasis on the agential efficacy of particular actors comes at the cost of analyzing capitalist social relations as a totality, or indeed of framing politics over the construction of constitutional meaning in terms of class struggle. The concept of the judicialization of politics is nevertheless potent and suggestive, and one that Marxist students of public law ought to consider as an analytic framework.

Insofar as it is characterized by the judicialization of politics, constitutional practice in the United States is in alignment with much of the rest of the planet. The constitutional form has conquered the world. Most states possess written constitutions, and courts practicing constitutional review are now common across democratic polities, liberal or otherwise. [8] The practical effect of the judicialization of politics (or, in the case of transnational institutions such as the European Union, the administrativization of politics) is to buffer policy from popular contestation. Erecting such a buffer is an increasingly necessary precaution. It protects far-reaching attempts at revising social relations from being subject to popular contestation. For examples, we need only consider the likelihood of judicial dismantling of financial, environmental, and labor regulations in the United States (of which the Court’s decision in Janus is only the most recent example), or the imposition of austerity budgets in the European Union. [9]

The bourgeois state form subtends the reproduction of the capital-relation: the division of society between owners of the means of production and the propertyless who are at once legally free and materially compelled to sell their labor-power. The historical specification of public law–through which the bourgeois state is substantially but not completely articulated–varies over time and space owing to the dynamics of political struggles. In the current moment, public law’s specification in the United States and in many other countries as juristocratic constitutionalism is a clear manifestation of the states of play of such struggles. The capital-relation’s reproduction is entrusted not to electorates or even to elite-dominated legislatures, but to institutions distinguished by their insulation from political conflict: courts exercising constitutional review, central banks, and administrative bodies. Contemporary constitutionalism consists in the maintenance of neoliberal rationality by placing it beyond any revision or contestation through public power. 

Constitutions are resistant to change by design. They are meant to reproduce political order by constraining the scope of legitimate conflict. This is not a neutral feature of constitutions (nor are constitutions themselves neutral mechanisms for structuring the political). Constitutionalism’s historical development is commingled with that of capitalism, and constitutional regimes tend to shield capitalism’s constitutive social relations–of production and reproduction–from the reach of public power. In the battle over Kavanaugh, conservatives have been clear-sighted and disciplined in their efforts to strengthen that shield. They seek to secure the juridical foundations of an increasingly crisis-ridden regime of accumulation, but they are also unabashed in their determination that the American constitutional order will continue to protect–and be sustained by–the economic, race-hierarchical, and sexual prerogatives of white propertied men.

Kavanaugh’s confirmation is neither a cause nor a symptom of judicial illegitimacy. Rather, it is a textbook example of the judicialization–and hence de-democratization–of politics. As such, it is emblematic of contemporary constitutional practice the world over. The effacement of contestatory, collective participation in politics; the strict demarcation of the proper ends of public power and the scope of its application; the entrenchment of policy agendas beyond the staying power of any given coalition in representative institutions–these are the hallmarks of contemporary global constitutionalism. The US constitutional order never looked less exceptional.

[1] Keith Whittington, Political Foundations of Judicial Supremacy (Princeton: Princeton University Press, 2007). Note that “judicial supremacy” does not denote judicial dominance over the production of constitutional meaning altogether; such terrain is contested by legislatures and the executives (and associated agencies or ministries) as well. Rather, it refers to a constitutional court’s prerogative to adjudicate disputes over the interpretation of constitutional meaning.

[2] Steven Michael Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2008).

[3] “The Senate Should Not Confirm Kavanaugh”, letter to the editor, New York Times (3 October 2018); available at https://www.nytimes.com/interactive/2018/10/03/opinion/kavanaugh-law-professors-letter.html.

[4] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[5] Trump v. Hawaii, 585 U.S. ___ (2018).

[6] The “scope of conflict” is a concept developed at length in E. E. Schattschneider’s The Semisovereign People: A Realist’s View of Democracy in America (Hinsdale, IL: Dryden Press, 1960), esp. 16ff.

[7] Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004). For a recent elaboration of the specificity of juristocracy in the United States, see Samuel Moyn, “Resisting the Juristocracy”, Boston Review (5 October 2018); available at http://bostonreview.net/law-justice/samuel-moyn-resisting-juristocracy.

[8] “[A]s of 2010, there were approximately 160 countries that subscribed to one form or another of the US model of constitutional supremacy.” Stephen Gill and A. Claire Cutler, “New Constitutionalism and World Order: General Introduction”, in Stephen Gill and A. Claire Cutler (eds.), New Constitutionalism and World Order (Cambridge: Cambridge University Press, 2014) 1, at 8.

[9] Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. ___ (2018)

Rob Hunter holds a PhD in politics from Princeton University. He has previously written for The Guardian and Jacobin.