“Is that presumption based on what we think was really going through Congress’s mind at the time or is it based on a constitutional overlay, because what was really going through Congress’s time [sic] in 1996 was harshness on this topic. Is that not right.”


That incoherent question asked as a statement by Associate Supreme Court Justice Brett Kavanaugh during hearings on his first day on the job exemplifies why we posted earlier this month that the Senate should not have confirmed him.  The case before the Court “revolves around a statutory provision that permits the government to detain an immigrant convicted of any of a group of specified crimes “when the alien is released” from criminal custody. People detained under this provision are not entitled to a bond hearing; they’re detained for the duration of legal proceedings.”


Kavanaugh Breaks Protocol


The Daily Kos reported that during those hearings Justice Kavanaugh broke court protocol by either interrupting or talking over other justices. He also twice interrupted attorneys during their presentations to the court.


More than 2400 years ago the famed Greek philosopher Socrates observed that “Four things belong to a judge: To hear courteously, to answer wisely, to consider soberly, and to decide impartially.”


Justice Kavanaugh broke those first two protocols the moment he opened his mouth during the first day of the Court’s hearings.  Michael Urofsky, editor of the journal Supreme Court History tells the story of Justice Felix Frankfurter who “may have been one of the brightest [minds] to ever go on the court” but who also had an enormous ego that caused him to lecture his fellow justices. Urofsky said the other justices wouldn’t stand for it.


“These are people who had strong egos of their own,” the historian says. “[Justice] William O. Douglas, whenever Frankfurter used to start talking, would pick up his mail, go to the couch, and sit there and take care of his mail. When Frankfurter was done, [Douglas] would say something like, ‘I was ready to vote the other way, until Felix talked me out of it.’ In other words, he would have voted with Felix until he heard Felix talk.”


Ego May Prevent Collaboration


We suspect that Justice Kavanaugh will have the Frankfurter effect in the long run on other justices in the court—his arrogance, disrespect for courtesy, and his need to be both the loudest and smartest mind in the room will ultimately marginalize his impact on the court.


Peter “Bo” Rutledge is Associate Professor at the University of Georgia Law School has made the astute observation that “Justice must have intellectual integrity. Supreme Court justices ordinarily are accountable only to their own conscience. So they must have an unflappable commitment to core legal principles even when unpopular, as Justice John Marshall Harlan showed on matters of race in the 19th century.”


Justice Kavanaugh, we believe, lacks that “commitment to core legal principles.”


While he may be competitive with Frankfurter in their size of egos, it is not likely that Justice Kavanaugh will ever stand side by side with the likes of Justices Oliver Wendell Holmes, Louis Brandeis, Thurgood Marshall or Sandra Day O’Connor. More likely than not, he will walk the history halls of the Supreme Court with the likes of James Clark McReynolds, Roger Taney, Stephen Johnson Field and several others. It is our opinion that, based upon his own words during his confirmation process, Justice Kavanaugh will never understand the role of the Supreme Court as spelled out by Justice Brandeis in his 1928 dissenting opinion (one of the most eloquent and most often cited opinions in Supreme Court history) in Olmstead v. United States:


“The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court’s aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress…


“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”


No Human is above the Law


We are of the same opinion as Justice Brandeis: no human is above the rule of law, not the president or a Supreme Court justice. We do not believe that Justice Kavanaugh’s intelligence, character, or privilege will ever permit him to share in Justice Brandeis’s resoluteness.