It is remarkable that no one has yet compared the saga of Brett Kavanaugh to that of Prince Hal in William Shakespeare’s "Henry IV," parts 1 and 2. In Act 3 of part 2, an old justice of the peace, the aptly named "Shallow," reminisces about his time as a young law student, when he consorted with "little John Doit . . . and black George Barnes, and Francis Pickbone, and Will Squeal." "You had not four such swingebucklers," Shallow assures us, "in all the Inns o’ Court again."
The names the Bard gives his "swingebucklers" (a splendid archaic word meaning something like troublemakers or boulevardiers) are eerily similar to the names Brett Kavanaugh notes in his high-school calendar of his drinking buddies, "Timmy, Judge, Tom, P.J., Bernie, and Squi."
The two Henry IV extraordinary dramas tell the story of the wastrel Prince of Wales who learns to shed unsavory companions and eventually to become the titanic Henry V, the great warrior who brings England to unparalleled martial achievements.
It is premature to declare that with Brett Kavanaugh’s confirmation we have seen a similar world-changing victory over youthful indiscretion, but it is not too early to declare that these last few weeks of political chicanery have ended with President Trump’s greatest triumph yet.
With the securing of a fifth solid conservative on the Court, the president has kept the promise he made to bring the nation’s highest tribunal back to a jurisprudence devoted to implementing the original understanding of the Constitution. In that understanding, the popular branches of the government, the federal and state legislatures, determined the course of policy for the nation, rather than having our laws remade by nine unelected Ephors.
For more than two generations, beginning with the work of the Warren Court in the 1950s, the realm of domestic law, which the framers gave to the governments closest to the people, was wrongly usurped and circumscribed by federal judges who, though acting with the best of motives, often deprived the people of the power to govern themselves.
This was made clear by the great dissents of Justice Scalia, whom Donald Trump took (along with Justice Thomas) as his jurisprudential models.
Jusitce Brett Kavanaugh is, by all appearances, solidly in that mode.
The forces against Kavanaugh were galvanized by a fear that he would be a fifth vote to override Roe v. Wade, the arbitrary Supreme Court opinion from 1973 which discovered in the Constitution formerly unperceived permission to terminate pregnancies before fetal viability.
This is unlikely, since Kavanaugh himself has sworn that he is opposed to overturning such precedent, and since Chief Justice John Roberts, still smarting from the reaction to Bush v. Gore, is not about to permit his Court thus to be plunged back into the political maelstrom.
What is likely to happen, however, is that the Supreme Court will now begin more seriously, by carefully scrutinizing federal regulations, to tame the administrative state, the federal leviathan which for too long crushed productivity and creativity on the part of the states.
It may also be that the Court will look less kindly on attempts by the federal and state governments to engage in divisive activity based on race or gender, favoring some groups over others, instead of even-handedly administering the law and distributing resources.
It is also likely that the Court will help in the effort, begun by the Trump administration, to release the energy and innovation of the private sector, allowing the economy to continue to prosper.
Finally, although this might be overly optimistic, the left’s defeat on Kavanaugh might signal the beginning of the end of character assassination instead of policy advocacy as political means. And, if Brett Kavanaugh himself can serve as an example, we might even enter an era where, once again, virtue signaling could be replaced by actual virtue.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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