On Monday night, President Donald Trump introduced Judge Brett Kavanaugh, his nominee to replace Justice Anthony Kennedy on the Supreme Court. Trump explained that he had not asked Kavanaugh about his “personal opinions” and that Kavanaugh’s “political views” do not matter, because a good judge must set those aside “to do what the law and the Constitution require.” Kavanaugh similarly spoke about the importance of judges knowing that their job is to “interpret the law, not make the law.”
These are great soundbites. They are also, at best, highly misleading, especially when talking about the Supreme Court. They are misleading because they suggest that there are always neutral and objectively correct answers to the hardest legal questions, such as those the Supreme Court often decides. And they are claims most commonly made by those on the political right.
But in fact, hard cases involve competing constitutional provisions, values, and precedents, all of which the justices have to weigh. Hard cases may involve ambiguous or convoluted statutes, requiring the justices to consider not just individual words, but also context, structure, and purpose. So the question is not whether the nominee can read unambiguous words, but how the nominee handles ambiguity and contradiction, what the nominee’s core constitutional principles are, and how the nominee exercises discretion.
Here’s an example where the Constitution and other legal materials do not provide easy answers: The Fourth Amendment prohibits unreasonable searches and seizures. Judges therefore have to decide what is unreasonable—a quintessentially discretionary question—and a judge’s views about police practices, about the likelihood of guilty people going unpunished, and about individuals’ “reasonable expectations of privacy” are all relevant. We saw that only last month in Carpenter v. United States, when the Supreme Court held, 5-4, that the government cannot obtain certain location data from cellphone companies unless it has a warrant. That case turned in large part on whether and how the justices take account of changes in technology, and in how we all interact with technology, when considering how the Fourth Amendment should apply. Those are judgments, not logically deducible conclusions.
Here’s another example of a question that can’t be answered by reading unambiguous words in the Constitution or other legal materials: Can the president be indicted? Neither the Constitution nor any statute speaks directly to this question. The Constitution provides that the president can be impeached and removed for “high crimes and misdemeanors,” but is that the only remedy for criminal wrongdoing, at least while the president is in office?
Answering this question involves evaluating the government structures the Constitution creates and the reasons for them. It requires considering why we have separation of powers and the relevance of concerns about the president being distracted from his job. It raises questions about how we guarantee democratic accountability if an unelected prosecutor can indict the (elected) president, but also about how we ensure the vitality of the principle that no one is above the law.
This question about presidential indictment is not purely theoretical. Trump’s campaign team—and possibly the president himself—is under investigation for improperly working with Russia to influence the 2016 U.S. election. And Kavanaugh has already argued that even being questioned during a criminal investigation is too distracting for the president, although he has not opined on the constitutional question.
One has to wonder if this argument had anything to do with Trump choosing him. But it is precisely because the Constitution does not clearly answer the question about presidential indictment that we can wonder. If the answer were clear, it would not matter, on this point anyway, who the president appointed.
During his confirmation hearing, Kavanaugh will undoubtedly refuse tell us how he would decide the question of whether the Constitution permits indicting the president. He won’t tell us whether he would vote to overrule Roe v. Wade. But he may well tell us, as Justice Neil Gorsuch did, that all he will do is “follow the law,” implying that judgment and discretion will play no role in his decisions on the Supreme Court. And that claim is simply not true.
Carolyn Shapiro is an associate professor of law and co-director of the Institute on the Supreme Court of the United States at the Chicago-Kent College of Law at the Illinois Institute of Technology.
