By Picking Brett Kavanaugh, Trump Is Fulfilling His Promise
In his inaugural address, President Trump promised that “today we are not merely transferring power from one Administration to another, or from one party to another — but we are transferring power from Washington, D.C. and giving it back to you, the American People.” This week the President took a significant step toward fulfilling that promise when he nominated Judge Brett Kavanaugh to the Supreme Court.
For too long the federal government has been the central authority in matters great and small in our country. The result is an increasingly ruptured political fabric, tribalism, and a polarized identity politics that continue to strain our body politic.
The Supreme Court, as much as any branch of our government, has been a culprit. By inserting itself into the most divisive political and cultural issues the Court has superseded the will of the people for decades and usurped the role of state legislatures and Congress. This of course has been the design of the progressive Left, which has sought an end-around those legislatures, fast-tracking its agenda through the courts.
Look no further than the issue of marriage. Before the controversial 2015 ruling in Obergefell v. Hodges, the meaning of marriage was debated throughout the country in local communities and state legislatures. Same-sex marriage was in fact legal in most states. But instead of leaving it to the American people to work through the issue with their neighbors and in their churches and civil institutions, the Supreme Court stepped in and legislated from the bench. A new right to same-sex marriage was read between the lines of the Constitution.
One upshot was a wave of religious discrimination throughout the country. Left-wing organizations that would ostracize Americans who believe that marriage is between one man and one woman were given license to sue and discriminate. A Christian baker in Colorado who simply didn’t want to bake a same-sex wedding cake was labeled a bigot, sued, and prosecuted for his religious beliefs.
The American people don’t want nine justices in Washington, D.C. to redefine long-standing institutions or write legislation, and neither did the American Founders. It’s not just the Obergefell case where the Supreme Court has tried to legislate from the bench. The Kelo v. City of New London case in 2005 dangerously expanded the authority of the federal government to confiscate land for “public purpose” and undermined private property rights. And who can forget the 2012 NFIB v. Sebelius case that upheld Obamacare by redefining and reinterpreting the individual mandate as a tax?
“Draining the swamp” and returning power to the people means establishing a Supreme Court that honors the separation of powers and interprets the law as written. Judge Kavanaugh understands this. In the 2017 case Fourstar v. Garden City Group, Inc., Kavanaugh wrote, “It is not a judge’s job to add to or otherwise re-mold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.”
More than merely understanding the proper role judges should play in our constitutional republic, Judge Kavanaugh has ruled consistently in accord with this understanding. In a 2016 case involving the Consumer Financial Protection Bureau (CFPB), Kavanaugh not only ruled that the structure of the CFPB is unconstitutional, but that the Supreme Court should reconsider the constitutionality of all independent agencies.
With Kavanaugh’s confirmation, the balance of power in the Supreme Court could finally swing back to justices committed to upholding the law and Constitution as written, rather than those who would seek to legislate from the bench. This shift in the balance of power does not necessarily mean a reversal in many of the court’s past decisions, but it will almost certainly mean a court that in future cases has a healthy respect for federalism and for the court’s limited role in our republic.
Tim Chapman is the executive director of Heritage Action.
