Justice Kavanaugh's Institutionalism

<span>Chief Justice John Roberts is often regarded as an institutionalist; a judge who is willing to decide cases in a manner inconsistent with his best and highest view of the law if doing so will help preserve the legitimacy of the Supreme Court. On this view, although he is a conservative judge, Chief Justice Roberts is willing to moderate his opinions and even occasionally change his vote to prevent the Court from being viewed as making decisions for political reasons. Instead, the Chief Justice appears to favor incremental change that gives the appearance that the justices are simply calling balls and strikes.</span> <br> <br><span>However, there is reason to question whether an approach to judging that considers the perceived legitimacy of a ruling as a factor in deciding a particular case is itself legitimate. This is because the Constitution charges federal judges with resolving cases and controversies — with deciding only the issues presented to them. By moderating their decisions based on concerns about perceived legitimacy, federal judges take into account a factor the Constitution does not permit them to consider when resolving a case. On this view, Chief Justice Roberts’s institutionalism undermines his goal of preserving the legitimacy of the Supreme Court.</span> <br> <br><span>In this essay, I explore Justice Brett Kavanaugh’s approach to protecting the Court’s legitimacy. In his opinions as a member of the Court — and in particular in his opinions concurring in controversial decisions — Justice Kavanaugh has demonstrated a special sensitivity to the ways in which the Court’s decisions will be perceived. Crucially, however, Justice Kavanaugh does not appear to change his votes or moderate his opinions based on public perception. Instead, he appears to vote his conscience, while taking care to clearly communicate the limits and expected practical effect of the Court’s decisions. Based on this combination of factors — votes that reflect his best and highest view of the law and opinions clearly aimed at preserving the legitimacy of the Court — I argue that Justice Kavanaugh is the true institutionalist of Court’s conservative wing.</span>