Brett Kavanaugh enters C+ Intro to American response paper into US Reports, to plaudits from Republican media

One of the most ridiculous episodes in recent American political history was the effort by the Republican Party with the assistance of a few ambitious members of Elite Legal Liberalism to try to pass off Brett Kavanaugh as some kind of brilliant legal super-intellectual rather than the generic sub-mediocrity he very obviously is. Kavanaugh’s concurrence in Rahimi takes that to another level:

Note the citation to Amar right off the top — I would like to think associating Amar with such trenchant observations as “the Constitution gives each state two Senators” is an in-joke designed to embarrass Amar for pretending to believe that he was a thinker of great distinction, But more likely Kavanaugh is convinced that these are in fact brilliant insights providing valuable information to the public.

It goes on like this:

For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can supply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial  role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people. 

Judges are like umpires, as The Chief Justice has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other.” R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a “criterion that is conceptually quite separate from the preferences of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).

Yes, he really is citing Roberts’s umpire comments unironically, more than a decade after Shelby County. And to back that up he cites a Robert Bork essay that famously argued that the First Amendment does not bar the state from censoring literature (whoops, I have been uncivil!) and Kavanaugh’s collaborator in Bush v. Gore. (Everyone knows that the 14th Amendment as originally understood to prevent states from using different vote counting methods if it would risk George W. Bush not winning the election and not in any other case. Pretty sure Sumner had a lengthy speech to this effect that has been censored by the liberal media.)

Or how about this:

Some say that courts should determine exceptions to broadly worded individual rights, including the Second Amendment, by looking to policy. Uphold a law if it is a good idea; strike it down if it is not. True, the proponents of a policy-based approach to interpretation of broadly worded or vague constitutional text usually do not say so explicitly (although some do). Rather, they support a balancing approach variously known as means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny. 

Needless to say everyone knows that judges have always used policy preferences when interpreting vague constitutional provisions. But it is a strange move to claim that they only way policy preferences can manifest themselves in constitutional jurisprudence is through particular balancing tests. But, hey, this means that John Paul Stevens and Thurgood Marshall were doing Pure Law when interpreting the equal protection clause, so I guess I shouldn’t complain.

But it’s particularly ridiculous in this case, in which the Court (joined by Kavanaugh, but over the dissent of the person who wrote it and actually wanted its parody-of-originalism holding applied faithfully) all but explicitly refused to apply a categorical rule — one derived in an obviously policy-based, ahistorical interpretation of the Second Amendment — it created only 2 years ago because it would result in a policy outcome that would embarrass the Supreme Court:

I think that’s strike three.