Unless a right is explicitly given in the Constitution, Brett Kavanaugh isn’t too wild about it.
Brett Kavanaugh is a big fan of a very narrow test for rights not listed in the Constitution, called “unenumerated rights.” His view comes from a 1997 Supreme Court case that argued the right to physician-assisted suicide was not protected because there was not a tradition of that right in American law.
He also praised former Chief Justice William Rehnquist who made similar comments as to why he didn’t support Roe v. Wade, which Kavanaugh himself seems to think has its days numbered. Rehnquist said rights not in the Constitution needed to be “rooted into the traditions and conscience of our people.”
But some really fundamental rights aren’t enumerated. And under intense questioning from Senators, Kavanaugh wouldn’t say if he supported any of them. A lot of those rights are what are called “settled law,” which are rights protected by the Supreme Court that people don’t reasonably expect to be overturned. But Kavanaugh wouldn’t call any unenumerated right settled.
It might be easy to say that a right that isn’t specifically in the Constitution must not have been that big of a deal, but the right to vote is actually unenumerated. Some of the most foundational rights of American life actually are not explicitly stated in the Constitution.
A Dozen Rights Kavanaugh Dodged Questions About
Democrats posed a number of questions of Kavanaugh that were framed as a simple yes or no. Is a right considered settled? Was a case that extended a right decided rightly? The questions boiled down to “Does this right exist, in your mind?” And Kavanaugh answered none of them.
1. The Right to Vote
When Sen. Kamala Harris (D-California) asked Brett Kavanaugh if he opposed the right to vote in light of his opposition to unenumerated rights, Kavanaugh did not answer.
2. The Right to Know Your Rights
In every police procedural you hear that you have the right to remain silent. Police must read the rights of the accused because of the case Miranda v. Arizona. Under questioning from Sen. Cory Booker (D-New Jersey), Kavanaugh said there was “precedent on precedent” regarding the right, but did not call it settled. Senate Judiciary Committee chairman Chuck Grassley (R-Iowa) gave Kavanaugh a chance to elaborate on this issue, but he refused.
3. The Right to An Attorney
One of the Miranda rights read to suspects is the right to an attorney. That right is granted by a 1963 case, Gideon v. Wainwright. Gideon is a landmark case turned into a popular book and television movie called Gideon’s Trumpet, known to high school civics classes everywhere. Questioned by Sen. Booker, Kavanaugh would not say if Gideon was correctly decided. Sen. Grassley gave Kavanaugh a chance to elaborate on this issue and he refused.
4. The Right to Not Be Convicted Using Illegally Obtained Evidence
In the 1961 case Mapp v. Ohio, the Supreme Court found that evidence obtained by violating Constitutional rights could not be used in court. After all, what good are rights that have no substance? Without Mapp, it wouldn’t mean much to have a Fourth Amendment protection against unreasonable searches. Kavanaugh would not say if he agreed or thought Mapp was settled law under questioning from Sen. Booker. Sen. Grassley gave Kavanaugh a chance to elaborate on this issue and he refused.
5. The Right of Nonwhite People to Enter the United States
In 1889, the Supreme Court heard Chae Chan Ping v. United States, in which the Supreme Court held that it was constitutional to deny the right of nonwhites to enter America. Under questioning from Sen. Harris, Kavanaugh refused to state if this case was correctly decided, or if he even knew it was actually still law.
.@SenKamalaHarris asks #Kavanaugh about 1889 #SCOTUS decision on Chinese Exclusion Act, which said Chinese immigrants are "impossible to assimilate with our people." (Chan Chae Ping v. US) He refused to denounce this racist opinion. #KavanaughHearings
— AsianAmericanLegal (@aaldef) September 6, 2018
6. The Right of Interracial Couples to Marry
Famously, in Loving v. Virginia, the Supreme Court upheld the right to marry, with no consideration of the race of those marrying. Sen. Chris Coons (D-Delaware) cited Kavanaugh’s test for unenumerated rights would find that Loving was wrongly decided. Kavanaugh did not say there was a right to interracial marriage.
7. The Right of Gay Couples to Marry
The seat Brett Kavanaugh hopes to fill was opened by the retirement of Justice Anthony Kennedy, who was often the deciding vote on gay rights cases. In Obergefell v. Hodges, Kennedy wrote the majority opinion that protected the right of gay people to marry. Kavanaugh wouldn’t say if Kennedy’s decision was correct under questioning from multiple Senate democrats.
8. The Right of Consenting Adults to Have Sex
In Lawrence v. Texas, the Supreme Court found that intimacy, including same-sex intimacy, was Constitutionally protected. However, it does not fit with the “history and tradition” test Kavanaugh uses to determine what rights do and do not exist. When questioned by Sen. Coons, Kavanaugh said that the Supreme Court declared gay people equal in Masterpiece Cakeshop v. Colorado Civil Rights Commission. He did not, however, answer if there was a right to have sex.
9. The Right to Contraception
Sen. Coons asked Kavanaugh if the right to contraception was consistent with his views on unenumerated rights. Brett Kavanaugh did not directly answer the question, mentioning precedents of other cases. However, he would not say if there was a right to use contraceptives. He did, however, call birth control pills “abortion-inducing drugs” under questioning from Sen. Ted Cruz (R-Texas).
10. The Right to Have Children and Raise Them
When Sen. Harris asked if he opposed the right to have children or the right to raise children as a parent chooses in light of his opposition to unenumerated rights, Brett Kavanaugh did not answer.
11. The Right to Refuse Medical Care
When Sen. Harris asked Brett Kavanaugh opposed the right to refuse medical care in light of his opposition to unenumerated rights, he did not answer.
12. The Right to an Abortion
This one is an obvious inclusion on this list. No reasonable candidate for the Supreme Court would answer this question. But Kavanaugh has shown that he does not consider Roe to be settled law. In light of that, his refusal to say otherwise speaks volumes. Sen. Coons pointed out that Kavanaugh himself admitted Roe is not consistent with his views on unenumerated rights.
The Ninth Amendment, Glucksberg and Kavanaugh’s Views on Your Rights
Some rights, like the right to free association and the right to not be forced to house soldiers, are specifically listed in the Constitution. In the field of Constitutional Law, these are called “enumerated rights.” But, as stated earlier, there are rights that are not specifically named in the Constitution.
The Constitution itself actually mentions that rights that are not enumerated are still protected by law. The Ninth Amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But the Ninth Amendment is largely seen as a historical curiosity, too vague to have any real meaning.
Famously, Robert Bork in his failed Supreme Court bid called the Ninth Amendment an ‘ink blot,’ a controversial remark that nonetheless honestly assesses how a large part of the legal tradition of America treats this part of the Bill of Rights.
“What do you make of the Ninth Amendment?” Sen. Cruz asked Kavanaugh. “Robert Bork famously described it as an ‘ink blot.’ Do you share that assessment?”
Kavanaugh dodged that question, instead describing the Supreme Court’s holding in a case called Washington v. Glucksberg. Kavanaugh leaned heavily on Glucksberg in his hearings, particularly on Thursday. That case says rights not listed in the Constitution must be “deeply rooted in this Nation’s history and tradition.”
Brett Kavanaugh really, really likes Glucksberg. In fact, one of his greatest praises of his judicial hero Rehnquist was the central thrust of this Glucksberg test. He praised Rehnquist for fighting the idea of a living constitution, a constitution that evolves its understanding of rights, rooted in the Ninth Amendment and the spirit of liberty, as those rights become issues.
“All roads lead to the Glucksberg test,” said Kavanaugh.
But the Supreme Court has limited Glucksberg far more than Kavanaugh likes to think. In the landmark case Obergefell v. Hodges, which protected a right to same-sex marriage, the Court criticized Kavanaugh’s wide application of Glucksberg.
“[Glucksberg] is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy … If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
Kavanaugh repeatedly fell back on Obama-appointed Justice Elena Kagan’s citation of Glucksberg in her own confirmation hearing, but as Sen. Coons pointed out, Kagan does not have a history of strictly applying the Glucksberg test. There are not a dozen rights that are essential to daily life in America that were endangered by Kagan’s application of Glucksberg in landmark cases like Obergefell, Windsor or Whole Womens’ Health.
While Brett Kavanaugh loves both Glucksberg and using precedents to avoid answering questions about if rights exist in his opinion, the freewheeling use of the Glucksberg test is not consistent with the holding in Obergefell which specifically counters his argument that all roads lead to Glucksberg. Obergefell states that, in fact, most roads do not lead there.
The only way all roads lead to Glucksberg is if Obergefell is overturned. Which, some are concerned Kavanaugh would want to do if seated on the court.
The Dangers of Brett Kavanaugh and his Glucksberg Love Affair
The more strictly Glucksberg is applied, the more narrowly rights can be drawn. In the test Kavanaugh loves so dearly, the only way the Court can find a right exists is to follow the trend of American history.
But American history trended toward segregation when Brown v. Board of Education of Topeka was decided. American history trended toward a lack of rights for women when West Coast Hotel v. Parrish was decided. History trended toward the incarceration of homosexuals when Lawrence was decided. None of those cases would be decided the way history remembers them by Kavanaugh.
Chris Coons was particularly worried about Kavanaugh’s enthusiasm for a Glucksberg test, and how it acts as a bludgeon against constitutional protection for marginalized and oppressed communities.
“In what I’ve read about how the Glucksberg test has or hasn’t been applied, the ways in which most critically Justice Kennedy himself rejected the Glucksberg test in his opinions in Casey, in Lawrence, in Obergefell, I think the Glucksberg test is better at rejecting claims of constitutional rights than it is at accepting them, and I think it’s a blunt instrument,” said Coons. “If applied rigidly, it would blow up precedent in contraception, abortion, protection from sterilization, marriage, a whole range of areas. These are settled precedent.”
The Supreme Court often is put into the role of deciding when a new idea needs a new protection, and the idea of looking backward to determine the viability of something new necessarily means opposing that protection. And there are a lot of times the court gets it wrong.
In Dred Scott, the Court denied the personhood of freed slaves. In Korematsu, the Court authorized the internment of Japanese-Americans. In Chae Chan Ping, the Court authorized the prohibition of Chinese immigration. In all these cases, as well, the Court looked to the history and traditions of America. In all those cases, the Court was reprehensible in its decisions, and was judged by history.
It’s hard to talk about the history of civil rights and liberties and not say that the arc of the moral universe bends toward justice. Martin Luther King, Jr. summed up the American experience in that single line. And in most of its decisions, the Court looks forward and follows that long arc. But Glucksberg wouldn’t, and Kennedy said as much in Obergefell.
“I’m troubled, Judge Kavanaugh, if you don’t understand that as the driving, animating force of our constitutional culture,” said Coons.
Glucksberg is a tool used to rein in the proliferation of unenumerated rights. Brett Kavanaugh praised it for that. But unenumerated rights are often essential, regardless of being specifically mentioned in the Constitution or not. The ink blot that is the Ninth Amendment can be ignored by Kavanaugh, but in it, in the Fourteenth and in the Constitution lives the notion of the rights of the people, named or unnamed.
At least, that was the argument of Alexander Hamilton, who thought that not only was the Bill of Rights unnecessary, but dangerous. That the specific enumeration of rights would imply that rights not listed could be freely denied. In many ways, Kavanaugh today plays the role of Hamilton’s nightmares in the Federalist Papers, arguing exactly that.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.