19th Century Schizoid Man

In a blistering critique of Brett Kavanaugh’s jurisprudence, Brett Kavanaugh says that the the vision of the framers was that no one man should have all that power:

Justice Brett Kavanaugh says the genius of the American system of government is that no one should have too much power, even as he and other conservatives on the Supreme Court are facing criticism for deferring repeatedly to President Donald Trump.

Invoking the list of grievances against King George III that the nation’s founders included in the Declaration of Independence, Kavanaugh said Thursday the framers of the Constitution were set on avoiding the concentration of power.

“And the framers recognized in a way that I think is brilliant, that preserving liberty requires separating the power. No one person or group of people should have too much power in our system,” Kavanaugh said at an event honoring his onetime boss, Kenneth Starr, a former federal judge and solicitor general celebrated by conservatives who died in 2022.

Trump’s aggressive effort to remake the federal government did not come up inside a gymnasium on the campus of McLennan Community College in Waco.

It has become a new tradition for conservative justices to tell self-refuting lies about not being partisan hacks while giving speeches at venues like the Mitch McConnell Institute For Saturating the Federal Judiciary With Robotic Republican Party-Liners at the Harlan Crow Emoluments Foundation.

Even if it was months ago in Trump years, it was just earlier this week that the guy pretending to be opposed to concentrations of arbitrary power demonstrated that one reason the Roberts Court uses the shadow docket is based on the longstanding legal principle “better to remain silent and be thought a fourth-rate authoritarian troll than speak and remove all doubt”:

As is usually the case with this Court’s pro-Trump shadow docket jurisprudence, the majority did not explain its decision. But one justice, Brett Kavanaugh, wrote a concurring opinion only for himself, which contains—and here I apologize for the legal jargon—some of the stupidest shit I have ever encountered in the U.S. Reports. Over the course of ten pages, Kavanaugh fumbles his way through the sort of legal and factual analysis that a second-year law student would find a little embarrassing, laced with the affected earnestness of someone whose only conception of hardship is when his vacation home’s cleaning crew gets stuck in traffic. I honestly wonder if none of the other conservatives joined it because, although they agree with the bottom-line result, none of them wanted their names publicly associated with this vapid dreck.

[…]

From there, Kavanaugh moves on to balancing the harms and equities—his attempt to parse, at this early stage of litigation, whether it would be better to allow the government to implement its challenged policy of racial profiling, or to temporarily block it while the legal challenge winds its way through the court system. For Kavanaugh, who in a wild coincidence has become more enthusiastic about unfettered executive power since Trump took office in January, this question has an easy answer: The Trump administration should be able to go forward, he says, because the countervailing legal interests of undocumented people who want to “avoid being stopped by law enforcement for questioning” are not “especially weighty.” 

Again, let us set aside the alarmingly casual authoritarian sympathies evinced by a Supreme Court justice twisting himself into rhetorical knots to rebrand unabashed racial profiling as a constitutionally acceptable practice, as long as some of its targets overstayed a visa. By framing the legal interests at stake primarily in terms of undocumented people seeking to evade police, Kavanaugh glosses over the interests of millions of Latino U.S. citizens and legal residents who do not want to risk getting gang-tackled on their way to work by neckbearded ICE goons whose forearm tattoos indicate a deep-seated passion for Nordic mythology. In his mind, there is no greater threat to the constitutional order than even temporary limitations on a Republican president’s ability to set aside the rights of people he does not like.

Perhaps the silliest line in the opinion comes when Kavanaugh, perhaps gently prompted by a clerk who has ventured outside Northwest Washington at some point in the past 30 years, considers the implications of his reasoning for people who are “legally in this country.” Fortunately, Kavanaugh says, they have no reason to worry: “The questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.”

Kavanaugh’s assurances, which read like a lightly polished excerpt from a court-mandated police training video, would come as news to Jason Gavidia, a U.S. citizen and plaintiff in this case who was attacked by armed immigration agents after he hesitated while trying to remember the name of the hospital in which he was born. The agents let him go only after Gavidia provided his ID card, which they did not give back. It would also come as news to Jorge Viramontes, another U.S. citizen plaintiff, whom agents subjected to four interrogations in nine days, at one point detaining him in a warehouse until they could verify his citizenship. 

As Sotomayor writes, other raids in Southern California have involved “even more force and even fewer questions.” But the costs of imposing a universal “show me your papers” standard—on documented immigrants, undocumented immigrants, and U.S. citizens alike—do not seem to have occurred to Brett Kavanaugh, because he has never contemplated what it might be like to be targeted by such a standard in the first place.

The framers might have believed in limiting executive power, but in their genius they also made sure to include Article XII, “Trump wins.” And yet some insolent District Court judges refuse to follow this constitutional command.